APPEAL
FROM THE JACKSON COUNTY CIRCUIT COURT [NO. 34CR-16-55]
HONORABLE HAROLD S. ERWIN, JUDGE
John
Wesley Hall and Sarah M. Pourhosseini, for appellant.
Leslie
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
OPINION
ROBIN
F. WYNNE, ASSOCIATE JUSTICE
Andwelle
Sieed Ellis was tried by a Jackson County Circuit Court jury
and found guilty of first-degree murder, a terroristic act
causing death (Class Y felony), and twenty-eight counts of
terroristic acts (Class B felony).[1] In addition, Ellis was
subject to enhanced penalties pursuant to Arkansas Code
Annotated section 16-90-120 (Repl. 2016) ("firearm
enhancement"). He was sentenced to life imprisonment for
the first-degree murder plus consecutive sentences of forty
years for the terroristic act causing death, five years each
on the twenty-eight counts of terroristic acts, and one year
each on the twenty-nine firearm enhancements, for a total
sentence of life plus 209 years' imprisonment. On appeal,
Ellis argues that his sentence of twenty-nine years under the
firearm-enhancement statute is illegal and should be struck;
he further argues that his sentences for the terroristic act
causing death and the terroristic acts should be ordered to
run concurrently, rather than consecutively, to his sentence
for first-degree murder. As set out below, we reverse and
strike the firearm enhancements, and we remand for entry of a
corrected sentencing order consistent with this opinion. In
all other respects, appellant's convictions and sentences
are affirmed.
I.
Firearm Enhancements
Our
firearm-enhancement statute provides: "Any person
convicted of any offense that is classified by the laws of
this state as a felony who employed any firearm of any
character as a means of committing or escaping from the
felony, in the discretion of the sentencing court, may be
subjected to an additional period of confinement in the
Division of Correction for a period not to exceed fifteen
(15) years." Ark. Code Ann. § 16-90-120(a).
Appellant argues that his sentence to an additional
twenty-nine years for firearm enhancements was void or
illegal because the jury found him guilty of a firearm
enhancement only as a means of committing murder in the first
degree (Count 1) but sentenced him to firearm enhancements as
a means of committing terroristic acts (Counts 2-30). When
the case was submitted to the jury during the guilt phase,
the jury was given a single firearm-enhancement verdict form
stating in pertinent part:
Do you, the Jury, find beyond a reasonable doubt, that
Andwelle Ellis or an accomplice employed a firearm as a
means of committing Murder in the First Degree.
(Emphasis added.) The jury foreperson marked "yes"
and signed the verdict form. In the sentencing phase,
however, the jury completed twenty-nine separate verdict
forms stating:
We, the Jury, find that Andwelle Ellis employed a firearm
as a means of committing a Terroristic Act, count[s]
[2-30], fix his sentence at a term of___ in the Arkansas
Department of Correction.
(Emphasis added.) Under the blank line, the jury was
instructed that the firearm-enhancement sentence was
"not to exceed 15 years," and the jury sentenced
appellant to one year for each enhancement.[2] The jury
recommended that none of the terms of imprisonment be
consecutive. However, the firearm-enhancement statute states
that any period of confinement imposed under that section
"shall be in addition to any fine or penalty provided by
law as punishment for the felony itself. Any additional
prison sentence imposed under the provisions of this section,
if any, shall run consecutively and not concurrently with any
period of confinement imposed for conviction of the felony
itself." Ark. Code Ann. § 16-90-120(b).
It is
well settled that an appellant may challenge the imposition
of an illegal sentence for the first time on direct appeal,
even if he did not raise the argument below. See Richie
v. State, 2009 Ark. 602, at 4, 357 S.W.3d 909, 912.
Specifically, this court views an issue of a void or illegal
sentence as being an issue of subject-matter jurisdiction,
which we may review whether or not an objection was made in
the trial court. Id. A sentence is void or illegal
when the trial court lacks the authority to impose it.
Hart v. State, 2014 Ark. 250, at 4. Here, the State
argues that appellant's sentence is not illegal because
the sentence is within the statutory maximum. The State cites
Atkins v. State, 2014 Ark. 393, 441 S.W.3d 19 (per
curiam), for the proposition that if a sentence is within the
limits set by statute, it is legal. However, this court has
clarified that on direct appeal, "for purposes of
appellate review, the issue of an illegal sentence is not
solely whether it is within the prescribed statutory range,
but whether the trial court had the authority to impose the
sentence." Donaldson v. State, 370 Ark. 3, 6,
257 S.W.3d 74, 77 (2007); see also Walden v. State,
2014 Ark. 193, 433 S.W.3d 864 (citing Donaldson);
Glaze v. State, 2011 Ark. 464, at 7, 385 S.W.3d 203,
209 ("On review of the legality of a sentence, we must
determine whether the trial court had the authority to impose
a particular sentence and not whether the sentence is illegal
on its face or within the prescribed statutory range.").
Because appellant challenges the authority of the trial court
to impose sentence on the firearm enhancements, we will
address appellant's argument.
We turn
now to the merits. It is axiomatic that in order to impose a
sentence in the second phase of a bifurcated trial, the jury
must make a finding of guilt during the first phase. "A
person commits a terroristic act if, while not in the
commission of a lawful act, the person: (1) Shoots at or in
any manner projects an object at a conveyance which is being
operated or which is occupied by another person with the
purpose to cause injury to another person or damage to
property; or (2) Shoots at an occupiable structure with the
purpose to cause injury to a person or damage to
property." Ark. Code Ann. § 5-13-310(a) (Repl.
2013). Thus, under the statute, use of a firearm is not
required for committing a terroristic act-projecting an
object "in any manner" is also a means of
committing a terroristic act.[3] The State argues that the jury
"essentially" found that appellant used a firearm
in the commission of committing a terroristic act when it
found him guilty on twenty-nine counts of terroristic act. We
nonetheless must require a clear finding. Because the jury
did not find beyond a reasonable doubt that appellant
employed a firearm as a means of committing terroristic acts,
we reverse appellant's twenty-nine one-year sentences
imposed as firearm enhancements, and we remand with
instructions for the court to enter a corrected sentencing
order consistent with this opinion.
II.
Concurrent or Consecutive Sentences
Arkansas
Code Annotated section 5-4-403 (Repl. 2013) provides that
sentences of imprisonment "shall run concurrently
unless, upon recommendation of the jury or the court's
own motion, the court orders the sentences to run
consecutively." Here, the jury recommended that all of
appellant's sentences run concurrently. When reviewing
the verdict forms in front of the jury, the trial court
acknowledged that the jury recommended concurrent sentences
and stated in regard to the firearm enhancements, "I
will have to see about that as it may be by operation of
law[.]" The sentencing order provides that, in addition
to the firearm-enhancement sentences running consecutively,
appellant's ...