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Wesley v. State

Supreme Court of Arkansas

October 10, 2019

Eugene WESLEY, Appellant
v.
STATE of Arkansas, Appellee

Page 157

[Copyrighted Material Omitted]

Page 158

          APPEAL FROM THE NEVADA COUNTY CIRCUIT COURT [NO. 50CR-93-27], HON. RANDY WRIGHT, JUDGE

          Eugene Wesley, pro se appellant.

         Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.

         OPINION

         ROBIN F. WYNNE, Associate Justice

          Appellant Eugene Wesley appeals the denial by the trial court of his pro se petition to correct an illegal sentence under Arkansas Code Annotated section 16-90-111 (Repl. 2016).[1] We affirm the trial court order because Wesley did not establish that the sentence being challenged was an illegal sentence and because it was not timely filed. Accordingly, the trial court was not wrong to deny relief under the statute. Also, it appears that the trial court may have treated the petition as one filed under Arkansas Rule of Criminal Procedure 37.1 (2018).[2] Under Rule

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37.2(b), the petition was untimely filed and it was an unauthorized successive petition subject to dismissal on that basis, and the trial court did not err in denying it pursuant to the Rule.

          History

         In 1993, Wesley was found guilty by a jury of aggravated robbery, kidnapping, and theft of property. Sentences were imposed of life, twenty years, and ten years, respectively. The kidnapping sentence was ordered to be served consecutively to the life sentence for aggravated robbery. We affirmed. Wesley v. State, 318 Ark. 83, 883 S.W.2d 478 (1994). Evidence adduced at trial reflected that Wesley entered a store in 1993, held a knife to a store employee’s throat, took money from the cash register, and forced the employee to leave with him in her vehicle. The employee, who was eventually released, identified Wesley as the perpetrator of the aggravated robbery, kidnapping, and theft of property.

         Standard of Review Under Section 16-90-111 and Rule 37.1

          The trial court’s decision to deny relief under section 16-90-111 will not be overturned unless that decision is clearly erroneous. Jackson v. State,2018 Ark. 291, 558 S.W.3d 383. Likewise, a decision on a petition for postconviction relief pursuant to Rule 37.1 will not be reversed unless the trial court’s ruling is clearly erroneous. Wood v. State,2015 Ark. 477, 478 S.W.3d 194. With respect to orders on both section 16-90-111 and Rule 37.1 petitions, a finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. See e.g.Swift v. State, 2018 Ark. 74, 540 S.W.3d 288 (The trial court’s decision to deny relief under section 16-90-111 ...


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