PRO SE
APPEAL FROM THE NEVADA COUNTY CIRCUIT COURT AND
APPELLANT'S MOTION FOR FILE-MARKED COPY OF
APPELLANT'S BRIEF [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.
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 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 was not clearly erroneous and was
affirmed.); see also Woods v. State, 2019 Ark. 62,
567 S.W.3d 494 (The trial court's decision to deny relief
under Rule 37.1 was not clearly erroneous and was affirmed.).
Section
16-90-111
Section
16-90-111(a) provides authority to a trial court to correct
an illegal sentence at any time. Jenkins v. State,
2017 Ark. 288, 529 S.W.3d 236. An illegal sentence is one
that is illegal on its face. Jackson v. State, 2018
Ark. 209, 549 S.W.3d 346. A sentence is illegal on its face
when it is void because it is beyond the trial court's
authority to impose and gives rise to a question of
subject-matter jurisdiction. Swift, 2018 Ark. 74,
540 S.W.3d 288. Sentencing is entirely a matter of statute in
Arkansas, and a sentence is illegal when it exceeds the
statutory maximum, as set out by statute, for the offense for
which the defendant was convicted. Fischer v. State,
2017 Ark. 338, 532 S.W.3d 40.
The
petitioner seeking relief under section 16-90-111(a) carries
the burden to demonstrate that his or her sentence was
illegal. Latham, 2018 Ark. 44. Therefore, Wesley was
entitled to no relief under section 16-90-111 unless he
established that the judgment in his case was illegal on its
face.
Wesley
alleged in his petition under section 16-90-111 that the
sentence for aggravated robbery was illegal because it
exceeded the "mandatory minimum" sentence permitted
under the sentencing statutes in effect in 1993 when he
committed the offenses. He also contended that the
convictions for the three offenses violated the Double
Jeopardy Clause because they arose "from the same set of
facts."[3] Wesley raises the same arguments on appeal
and also contends that an evidentiary hearing should have
been held on his petition and that the trial court failed to
make written findings of fact on the petition.
Double
Jeopardy Claim ...