Ellis v. State

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          APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT [NO. 34CR-16-55], HONORABLE HAROLD S. ERWIN, JUDGE

         John Wesley Hall and Sarah M. Pourhosseini, Little Rock, 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,

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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, 2014 WL 2465343. 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

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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 ...