Page 662
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, Atty Gen., by: Brooke Jackson Gasaway, Asst Atty
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,
Page 663
appellants 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 appellants 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
Page 664
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 appellants 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 ...