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Whiteside v. State

Supreme Court of Arkansas

November 21, 2019

Lemuel WHITESIDE, Appellant
v.
STATE of Arkansas, Appellee

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [60CR-09-1183], HONORABLE BARRY SIMS, JUDGE

         J. Thomas Sullivan, Little Rock, for appellant.

         Leslie Rutledge, Att’y Gen., by: David L. Eanes Jr., Ass’t Att’y Gen., for appellee.

          OPINION

         ROBIN F. WYNNE, Associate Justice

          Lemuel Session Whiteside appeals from the Pulaski County Circuit Court’s 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.

         Whiteside 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 Amendment’s prohibition on cruel and unusual punishment.

         On remand, this court considered whether Whiteside’s mandatory sentence[1] of life without parole under Ark. Code Ann. § 5-10-101(c) (Supp. 2007) was prohibited by the Supreme Court’s 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 Whiteside’s arguments that he should also be entitled to resentencing on his aggravated-robbery conviction and its enhancement:[2]

Whiteside’s 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 conviction.

Whiteside II, 2013 Ark. 176, at 9, 426 S.W.3d at 922.

         On 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. Whiteside’s 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 Whiteside’s motion, and this appeal followed.

          On 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 defense’s 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 Hicks’s 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 range.

          In his 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[3] 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."

          The 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 court’s judgment duly recognized, obeyed, and executed." Ingle v. Ark. Dep’t 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 court’s 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 court’s 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 court’s mandate, and the trial court may be powerless to undertake any proceedings beyond those specified. Id. If an ...

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