FROM THE PULASKI COUNTY CIRCUIT COURT [60CR-09-1183],
HONORABLE BARRY SIMS, JUDGE
Thomas Sullivan, Little Rock, for appellant.
Rutledge, Atty Gen., by: David L. Eanes Jr., Asst Atty
Gen., for appellee.
F. WYNNE, Associate Justice
Session Whiteside appeals from the Pulaski County Circuit
Courts order denying his motion for a new trial or other
relief, in which he sought a new sentencing hearing on his
aggravated-robbery conviction. He argues on appeal that his
thirty-five-year sentence for aggravated robbery violated the
protection afforded him by the United States Constitution
because the jury was improperly instructed that it could
consider and impose a sentence of life imprisonment contrary
to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011,
176 L.Ed.2d 825 (2010). We affirm.
was seventeen years old at the time he committed
capital-felony murder and aggravated robbery in connection
with the robbery and death of James London. He was initially
sentenced to life in prison without parole for the capital
murder and thirty-five years in prison for the aggravated
robbery; he was also given a fifteen-year sentencing
enhancement for employing a firearm in connection with the
aggravated robbery. On direct appeal, this court affirmed.
Whiteside v. State, 2011 Ark. 371, 383 S.W.3d 859
(Whiteside I ). However, the Supreme Court of the
United States granted his petition for writ of certiorari,
vacated the judgment, and remanded to this court for further
consideration in light of its recent decision in Miller
v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d
407 (2012). See Whiteside v. Arkansas, 567
U.S. 950, 133 S.Ct. 65, 183 L.Ed.2d 708 (2012). In
Miller, the Supreme Court held that mandatory life
sentences for juvenile offenders violates the Eighth
Amendments prohibition on cruel and unusual punishment.
remand, this court considered whether Whitesides mandatory
sentence of life without parole under Ark. Code
Ann. § 5-10-101(c) (Supp. 2007) was prohibited by the Supreme
Courts decision in Miller, supra. Whiteside v.
State, 2013 Ark. 176, 426 S.W.3d 917 (Whiteside
II ). The case was briefed by the parties and orally
argued before this court. This court "reaffirmed"
the decision in Whiteside I with the exception that
the sentence for capital murder was reversed and remanded for
a resentencing hearing pursuant to Miller . This
court rejected Whitesides arguments that he should also be
entitled to resentencing on his aggravated-robbery conviction
and its enhancement:
Whitesides sentence for aggravated robbery, as well as his
sentence enhancement for the use of a firearm, is authorized
by statute and is not affected by the decision in
Miller . Thus, these sentences are still valid, and
we remand only the sentence for his capital-murder
Whiteside II, 2013 Ark. 176, at 9, 426 S.W.3d at
remand, on November 13, 2018, the circuit court entered a
nunc pro tunc amended sentencing order in which, by agreement
of the parties, Whiteside was sentenced to a concurrent term
of ten years imprisonment for the capital murder. The
sentences for aggravated robbery and the firearm enhancement
were expressly undisturbed and not at issue in the
resentencing. However, the order also stated that "Mr.
Whitesides acceptance of this agreement shall not act as a
waiver to any appellate rights or rights to collaterally
attack his prior convictions in this case." On December
12, 2018, Whiteside filed the motion for new trial or other
relief that is at issue in the present appeal. He argued that
he was entitled to the retroactive benefit of Graham v.
Florida, which held that the Eighth Amendment prohibited
imposition of a life sentence without a meaningful
possibility of parole for a juvenile offender convicted of a
nonhomicide offense; that the aggravated-robbery sentencing
instruction, which included the option of a life sentence,
resulted in a constitutionally flawed sentencing process; and
that the error in the sentencing instruction warrants a new
sentencing hearing on that conviction. The State filed a
response in opposition, essentially arguing that the circuit
court had no jurisdiction to reconsider the sentence imposed
on the aggravated robbery, and Whiteside filed a reply. The
circuit court entered an order denying Whitesides motion,
and this appeal followed.
appeal, Whiteside argues that his thirty-five-year sentence
for aggravated robbery, while within the statutory range, was
"imposed illegally" because the circuit court
improperly instructed the jury, over the defenses objection,
that the applicable sentencing range was ten to forty years,
or life. He relies on the decision in Graham, supra.
He contends that "the jury was engaged in determining
punishment in light of two unconstitutional operating
premises: that he would be subject to a life sentence on the
capital murder charge, and a sentence within the Class Y
sentencing range of 10-40 years confinement, or life, on the
underlying felony charge of aggravated robbery."
Whiteside points out that while the Graham issue was
raised during trial and rejected by the circuit court, the
alleged defect in the sentencing instruction on aggravated
robbery was not argued in his direct appeal and has never
been addressed by this court. Whiteside characterizes this
alleged error as an issue of "illegal sentence" or
a "jurisdictional defect" that can be raised at any
time. He further argues that the imposition of the
aggravated-robbery sentence based on a defective instruction
failing to recognize Graham violated his right to
due process of law in the sentencing process dictated by
state law. For this argument, he relies on Hicks v.
Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175
(1980), in which the Supreme Court held that affirmance of
Hickss mandatory forty-year sentence that was imposed
pursuant to a statute that had since been held
unconstitutional violated his right to due process under the
Fourteenth Amendment because the state court assumed that a
jury also would have sentenced Hicks to forty years, the
maximum sentence permitted under the statutory sentencing
conclusion and prayer for relief, Whiteside asks this court
to reverse or vacate both the thirty-five-year sentence for
aggravated robbery and the consecutive fifteen-year firearm
enhancement imposed by the jury. Further, he
requests that this court exercise its authority to order the
sentence imposed on the aggravated robbery count to a term of
ten years in the Arkansas Department of Correction,
commensurate with the ten-year sentence imposed on remand by
the circuit court on the capital murder count, "to avoid
the irregularity in imposition of a greater punishment for
aggravated robbery than for the capital felony murder
predicated on the lesser offense."
State presents several arguments against reaching the merits
in this appeal. First, the State argues that the appeal
should be dismissed for lack of jurisdiction. On remand, the
circuit court was vested with jurisdiction only to the extent
conferred by our opinion and mandate. Ward v. State,
2017 Ark. 215, at 3, 521 S.W.3d 480, 482 (citing Dolphin
v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998)).
"The mandate is the official notice of action of the
appellate court, directed to the court below, advising that
court of the action taken by the appellate court, and
directing the lower court to have the appellate courts
judgment duly recognized, obeyed, and executed."
Ingle v. Ark. Dept of Human Servs., 2014 Ark. 471,
at 5-6, 449 S.W.3d 283, 287. This court has explained:
[T]he "lower court is vested with jurisdiction only to
the extent conferred by the appellate courts opinion and
mandate." City of Dover v. Barton, 342 Ark.
521, 525, 29 S.W.3d 698, 700 (2000) (quoting
Dolphin, 335 Ark. at 118, 983 S.W.2d at 115).
Therefore, the question of whether the lower court followed
the mandate is not simply one of whether the lower court was
correct in its construction of the case, but also involves a
question of the lower courts jurisdiction. Id. at
118-19, 983 S.W.2d at 115. Similarly, when a case is remanded
for a specific act, the entire case is not reopened, but
rather the lower tribunal is only authorized to carry out the
appellate courts mandate, and the trial court may be
powerless to undertake any proceedings beyond those
specified. Id. If an ...