Cite as 2021 Ark. 36 SUPREME COURT OF ARKANSAS No. CR-20-243
Opinion Delivered: March 4, 2021 ALBERT DIRICKSON APPELLANT PRO SE APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT [NOS. 67CR-95-87; 67CR-95-88; 67CR-95- V. 89; 67CR-96-10; 67CR-96-9]
STATE OF ARKANSAS HONORABLE CHARLES A. YEARGAN, APPELLEE JUDGE AFFIRMED.
KAREN R. BAKER, Associate Justice
Appellant Albert Dirickson appeals from the circuit court’s denial of his pro se petition
to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl.
2016). The circuit court denied the petition, finding that it was untimely pursuant to Rule 37.1
of the Arkansas Rules of Criminal Procedure. We affirm.
I. Background
In 1996, Dirickson was convicted of three counts of attempted capital murder, one count
attempted rape, and one count of residential burglary. The convictions arose when Dirickson
entered the home of Lyndell and Nedra Martin—naked, intoxicated, and armed with a hunting
knife—and stabbed Mrs. Martin and her two sons. Dirickson v. State, 329 Ark. 572, 953 S.W.2d
56 (1997). The direct-appeal record includes the judgment of conviction, which reflects that
Dirickson was sentenced to 360 months for each count of attempted capital murder, 360 months
for one count of attempted rape, and 240 months for one count of residential burglary. The sentences were imposed consecutively for an aggregate sentence of 1680 months’ imprisonment
or 140 years’ imprisonment.1 We affirmed. Id. Dirickson subsequently filed a Rule 37.1 petition
arguing that counsel was ineffective for failing to file proper motions in a timely manner and
that he was denied financial help in hiring a neuropsychologist. The circuit court denied
Dirickson’s petition, and we affirmed. Dirickson v. State, CR 99-795 (Ark. May 17, 2001)
(unpublished per curiam).
In the petition to correct an illegal sentence filed in the circuit court and in his argument
on appeal, Dirickson alleged that his aggregate sentence of 140 years’ imprisonment is illegal
because the prosecutor failed to allege an underlying felony as a basis for the charge of attempted
capital murder; that the charge of attempted rape of Mrs. Martin is a lesser-included offense of
attempted capital murder of Mrs. Martin, and he, therefore, could not be convicted of both
offenses; that the evidence failed to demonstrate the requisite intent for each of the attempt
charges; and that the circuit court did not exercise its discretion when it imposed the sentences
consecutively. On appeal, Dirickson adds allegations not raised below that each offense was
committed during an uninterrupted course of conduct and should not have been separately
1 This court may take judicial notice in postconviction proceedings of the record on direct appeal without the need to supplement the record. Williamson v. State, 2020 Ark. 319, 608 S.W.3d 149. When the judgment was entered, attempted capital murder and attempted rape carried a maximum sentence of thirty years’ imprisonment. See Ark. Code Ann. § 5-3-203(A)(1) (Repl. 1993) (stating in pertinent part that criminal attempt to commit capital murder and all Y felonies are classified as A felonies); see also Ark. Code Ann. § 5-4-401(a)(2) (Repl. 1993) (stating in pertinent part that for a Class A felony the sentence shall be no more than thirty years). Finally, the crime of residential burglary was classified as a Class B felony, which carries a maximum sentence of twenty years’ imprisonment. See Ark. Code Ann. § 5-39-201(B) (Repl. 1993) and § 5-4-401(a)(3).
2 charged and that the separate charges were consolidated for trial without an order from the
circuit court. This court does not address new arguments raised for the first time on appeal. Hall
v. State, 2018 Ark. 319, 558 S.W.3d 867.
II. Standard of Review
The circuit court’s decision to deny relief pursuant to section 16-90-111 will not be
overturned unless that decision is clearly erroneous. Millsap v. State, 2020 Ark. 38. Under section
16-90-111, a finding is clearly erroneous when, although there is evidence to support it, the
appellate court, after reviewing the entire evidence, is left with the definite and firm conviction
that a mistake has been made. Id.
III. Arkansas Code Annotated Section 16-90-111
Section 16-90-111(a) provides authority to a circuit court to correct an illegal sentence at
any time. Redus v. State, 2019 Ark. 44, 566 S.W.3d 469. An illegal sentence is one that is illegal
on its face. Id. A sentence is illegal on its face when it is void because it is beyond the circuit
court’s authority to impose and gives rise to a question of subject-matter jurisdiction. Id.
Sentencing is entirely a matter of statute in Arkansas. Id. The petitioner seeking relief under
section 16-90-111(a) carries the burden to demonstrate that his or her sentence was illegal. Id.
The general rule is that a sentence imposed within the maximum term prescribed by law is not
illegal on its face. McArty v. State, 2020 Ark. 68, 594 S.W.3d 54. We have held that any claim
that the sentence was imposed in an illegal manner, as opposed to a claim that the sentence is
facially illegal, is governed by the time limitations set out in Arkansas Rule of Criminal
Procedure 37.2(c) (2019). Stewart v. State, 2018 Ark. 166, 546 S.W.3d 472. A circuit court has
3 subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes,
and typically, trial error does not implicate the jurisdiction of the circuit court or, as a
consequence, implicate the facial validity of the judgment. McArty, 2020 Ark. 68, 594 S.W.3d
54. When a circuit court acts without jurisdiction, however, its orders and judgments are void.
Id.
IV. Claims for Relief
Dirickson’s allegations do not implicate the facial validity of the judgment in that
Dirickson does not contend that the sentences imposed exceed the maximum sentences for the
offenses for which he was convicted. McArty, 2020 Ark. 68, 594 S.W.3d 54. Dirickson’s
allegation that the prosecution failed to charge and prove an underlying felony for the capital-
murder charge does not implicate the facial validity of the judgment. Moreover, a review of
Dirickson’s direct-appeal record reveals that he was not charged with felony capital murder but
was instead charged with engaging in conduct that constituted a substantial step intended to
culminate in the commission of capital murder with the premeditated and deliberated purpose
to cause the death of another person. Therefore, Dirickson’s convictions for attempted capital
murder were not based on an attempt to commit an underlying felony, and his claims in this
regard not only fail to demonstrate that his sentences are illegal on the face of the judgment but
also fail to demonstrate that they are supported by the direct-appeal record.
Dirickson contends that attempted rape is a lesser-included offense of attempted capital
murder and that he could not be convicted of both offenses. This claim is not cognizable in
petitions filed pursuant to section 16-90-111 because it is based on an allegation that his
conviction and sentence violated double jeopardy as set forth in Arkansas Code Annotated
4 section 5-1-110 (Supp. 1995).
Free access — add to your briefcase to read the full text and ask questions with AI
Cite as 2021 Ark. 36 SUPREME COURT OF ARKANSAS No. CR-20-243
Opinion Delivered: March 4, 2021 ALBERT DIRICKSON APPELLANT PRO SE APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT [NOS. 67CR-95-87; 67CR-95-88; 67CR-95- V. 89; 67CR-96-10; 67CR-96-9]
STATE OF ARKANSAS HONORABLE CHARLES A. YEARGAN, APPELLEE JUDGE AFFIRMED.
KAREN R. BAKER, Associate Justice
Appellant Albert Dirickson appeals from the circuit court’s denial of his pro se petition
to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl.
2016). The circuit court denied the petition, finding that it was untimely pursuant to Rule 37.1
of the Arkansas Rules of Criminal Procedure. We affirm.
I. Background
In 1996, Dirickson was convicted of three counts of attempted capital murder, one count
attempted rape, and one count of residential burglary. The convictions arose when Dirickson
entered the home of Lyndell and Nedra Martin—naked, intoxicated, and armed with a hunting
knife—and stabbed Mrs. Martin and her two sons. Dirickson v. State, 329 Ark. 572, 953 S.W.2d
56 (1997). The direct-appeal record includes the judgment of conviction, which reflects that
Dirickson was sentenced to 360 months for each count of attempted capital murder, 360 months
for one count of attempted rape, and 240 months for one count of residential burglary. The sentences were imposed consecutively for an aggregate sentence of 1680 months’ imprisonment
or 140 years’ imprisonment.1 We affirmed. Id. Dirickson subsequently filed a Rule 37.1 petition
arguing that counsel was ineffective for failing to file proper motions in a timely manner and
that he was denied financial help in hiring a neuropsychologist. The circuit court denied
Dirickson’s petition, and we affirmed. Dirickson v. State, CR 99-795 (Ark. May 17, 2001)
(unpublished per curiam).
In the petition to correct an illegal sentence filed in the circuit court and in his argument
on appeal, Dirickson alleged that his aggregate sentence of 140 years’ imprisonment is illegal
because the prosecutor failed to allege an underlying felony as a basis for the charge of attempted
capital murder; that the charge of attempted rape of Mrs. Martin is a lesser-included offense of
attempted capital murder of Mrs. Martin, and he, therefore, could not be convicted of both
offenses; that the evidence failed to demonstrate the requisite intent for each of the attempt
charges; and that the circuit court did not exercise its discretion when it imposed the sentences
consecutively. On appeal, Dirickson adds allegations not raised below that each offense was
committed during an uninterrupted course of conduct and should not have been separately
1 This court may take judicial notice in postconviction proceedings of the record on direct appeal without the need to supplement the record. Williamson v. State, 2020 Ark. 319, 608 S.W.3d 149. When the judgment was entered, attempted capital murder and attempted rape carried a maximum sentence of thirty years’ imprisonment. See Ark. Code Ann. § 5-3-203(A)(1) (Repl. 1993) (stating in pertinent part that criminal attempt to commit capital murder and all Y felonies are classified as A felonies); see also Ark. Code Ann. § 5-4-401(a)(2) (Repl. 1993) (stating in pertinent part that for a Class A felony the sentence shall be no more than thirty years). Finally, the crime of residential burglary was classified as a Class B felony, which carries a maximum sentence of twenty years’ imprisonment. See Ark. Code Ann. § 5-39-201(B) (Repl. 1993) and § 5-4-401(a)(3).
2 charged and that the separate charges were consolidated for trial without an order from the
circuit court. This court does not address new arguments raised for the first time on appeal. Hall
v. State, 2018 Ark. 319, 558 S.W.3d 867.
II. Standard of Review
The circuit court’s decision to deny relief pursuant to section 16-90-111 will not be
overturned unless that decision is clearly erroneous. Millsap v. State, 2020 Ark. 38. Under section
16-90-111, a finding is clearly erroneous when, although there is evidence to support it, the
appellate court, after reviewing the entire evidence, is left with the definite and firm conviction
that a mistake has been made. Id.
III. Arkansas Code Annotated Section 16-90-111
Section 16-90-111(a) provides authority to a circuit court to correct an illegal sentence at
any time. Redus v. State, 2019 Ark. 44, 566 S.W.3d 469. An illegal sentence is one that is illegal
on its face. Id. A sentence is illegal on its face when it is void because it is beyond the circuit
court’s authority to impose and gives rise to a question of subject-matter jurisdiction. Id.
Sentencing is entirely a matter of statute in Arkansas. Id. The petitioner seeking relief under
section 16-90-111(a) carries the burden to demonstrate that his or her sentence was illegal. Id.
The general rule is that a sentence imposed within the maximum term prescribed by law is not
illegal on its face. McArty v. State, 2020 Ark. 68, 594 S.W.3d 54. We have held that any claim
that the sentence was imposed in an illegal manner, as opposed to a claim that the sentence is
facially illegal, is governed by the time limitations set out in Arkansas Rule of Criminal
Procedure 37.2(c) (2019). Stewart v. State, 2018 Ark. 166, 546 S.W.3d 472. A circuit court has
3 subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes,
and typically, trial error does not implicate the jurisdiction of the circuit court or, as a
consequence, implicate the facial validity of the judgment. McArty, 2020 Ark. 68, 594 S.W.3d
54. When a circuit court acts without jurisdiction, however, its orders and judgments are void.
Id.
IV. Claims for Relief
Dirickson’s allegations do not implicate the facial validity of the judgment in that
Dirickson does not contend that the sentences imposed exceed the maximum sentences for the
offenses for which he was convicted. McArty, 2020 Ark. 68, 594 S.W.3d 54. Dirickson’s
allegation that the prosecution failed to charge and prove an underlying felony for the capital-
murder charge does not implicate the facial validity of the judgment. Moreover, a review of
Dirickson’s direct-appeal record reveals that he was not charged with felony capital murder but
was instead charged with engaging in conduct that constituted a substantial step intended to
culminate in the commission of capital murder with the premeditated and deliberated purpose
to cause the death of another person. Therefore, Dirickson’s convictions for attempted capital
murder were not based on an attempt to commit an underlying felony, and his claims in this
regard not only fail to demonstrate that his sentences are illegal on the face of the judgment but
also fail to demonstrate that they are supported by the direct-appeal record.
Dirickson contends that attempted rape is a lesser-included offense of attempted capital
murder and that he could not be convicted of both offenses. This claim is not cognizable in
petitions filed pursuant to section 16-90-111 because it is based on an allegation that his
conviction and sentence violated double jeopardy as set forth in Arkansas Code Annotated
4 section 5-1-110 (Supp. 1995). We have held that the claim that multiple convictions violated the
provision against double jeopardy constitutes an assertion that the judgment was imposed in an
illegal manner, not that the judgment is facially invalid. Wesley v. State, 2019 Ark. 270, 585
S.W.3d 156. Accordingly, double-jeopardy claims should have been raised at trial or in a
postconviction petition filed pursuant to Rule 37.1, and a petition under section 16-90-111 is
not a substitute for raising a claim under the Rule. Id.
The same is true for Dirickson’s claim that there was insufficient evidence to support his
intent to commit the crimes for which he was convicted when he entered the residence of the
victims. A challenge to the sufficiency of the evidence to convict does not implicate the facial
validity of the judgment under section 16-90-111. White v. State, 2018 Ark. 81, 540 S.W.3d 291.
To the extent that Dirickson’s final claim alleges that the circuit court did not have
jurisdiction to impose consecutive sentences, he is mistaken. It is well established that the
question whether two separate sentences should run consecutively or concurrently lies solely
within the province of the circuit court. Rickman v. State, 2020 Ark. 138, 597 S.W.3d 622 (citing
Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Abdullah v. State, 290 Ark. 537, 720 S.W.2d
902 (1986)).
In sum, Dirickson failed to carry his burden of demonstrating that his consecutive
sentences for three counts of attempted capital murder and one count each of attempted rape
and residential burglary are facially illegal. Redus, 2019 Ark. 44, 566 S.W.3d 469. The circuit
court did not clearly err by denying Dirickson’s petition as untimely pursuant to Rule 37.2(c) of
the Arkansas Rules of Criminal Procedure.
5 Affirmed.
Albert Dirickson, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.