Anderson v. State

2017 Ark. 357, 533 S.W.3d 64
Supreme Court of Arkansas·Decided December 14, 2017·No. No. CR-17-502·Published·Cited by 11 cases

Opinion

KAREN R. BAKER, Associate Justice

| íAppellant Myron Newjean Anderson, Jr., filed a pro se motion for appointment of counsel in connection with an appeal from orders entered by the circuit court denying Anderson’s pro se “Motion for Leave to File an Amended Declaratory Judgment” and a petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2016).1 Anderson sought a declaratory judgment on the basis that the elements of a terrorist act as set forth in Arkansas Code Annotated section 5-13-310 (Repl, 2006) are internally inconsistent, which Anderson contends renders the statute unconstitutional. In his petition to correct an illegal sentence, Anderson asserted that his sentence is illegal because it was imposed pursuant to an allegedly unconstitutional statute. On appeal, [¡¡Anderson advances the same arguments and allegations contained in the pleadings filed below.

For the reasons set forth' below, it is clear from a review of the record that Anderson has failed to allege sufficient facts or to provide authority establishing that the challenged statute is unconstitutional on its face or in its application' and has likewise failed to demonstrate that his sentences are facially illegal. We therefore affirm, which renders his motion for appointment of counsel moot.

In 2007, a jury found Anderson guilty of five counts of committing a terroristic act and one count of being a felon in posses: sion of a firearm, which arose out of the shooting of seven persons in a nightclub. The jury imposed an aggregate sentence of 1320 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Anderson v. State, CR-08-458, 2009 WL 196315 (Ark. App. Jan. 28, 2009) (unpublished) (original docket no. CACR 08-458).

Anderson contended below and contends on appeal that .the statute under which he was charged and convicted is unconstitutional because there are inconsistencies with respect to the definition of the elements; of the offense. Anderson’s arguments are difficult to discern, but he appears to contend that the statute is inconsistent in that one subsection defines the offense to include shooting with the purpose of causing injury to another person; while another subsection of the act defines the offense narrowly to include shooting with the purpose of causing injury to another person at an • occupiable structure.2 Anderson asserts-1 ¡¡that he was denied due process because the information failed to provide notice that’ a terror-istic act must be committed against the occupant of, an occupiable structure. Anderson fails to explain or to provide any authority for the proposition that the alleged inconsistency in Arkansas Code Annotated section 5-13-310(a)(l)(A) and section 5-13-310(a)(2) renders the statute unconstitutional on its face or to establish how the alleged inconsistency amounted to a denial of due process.3

It is well settled that there is a presumption of validity attending every consideration of a statute’s constitutionality that requires the incompatibility between it and the constitution to be clear before we will hold it unconstitutional. Miller v. Ark. Dep’t of Fin. & Admin., 2012 Ark. 165, at 7, 401 S.W.3d 466, 470. Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality, and the heavy burden of demonstrating the unconstitutionality is on the one attacking it. Id. If possible, this court will construe a statute so that it is constitutional. Id. (citing McLane S., Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006)). Invalidating a statute on its face is, manifestly, strong medicine that has been employed sparingly and only as a last resort. Nat’l Endowment for the 4Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998). Furthermore, we will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case in the lower court. Drummond v. State, 320 Ark. 385, 389, 897 S.W.2d 553, 555 (1995).

In order to sufficiently challenge a statute as unconstitutional on its face, an appellant is required to develop allegations before the circuit court that are supported by sufficient authority that the statute is either void for vagueness or overbroad. See Raymond v. State, 354 Ark. 157, 167, 118 S.W.3d 567, 574 (2003). The facial-overbreadth doctrine is restricted in its application and is not recognized outside the limited context of the First Amendment. Musser v. Mapes, 718 F.3d 996, 1001 (8th Cir. 2013) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)); see also Bailey v. State, 334 Ark. 43, 54, 972 S.W.2d 239, 245 (1998).

The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); see also Cambiano v. Neal, 342 Ark. 691, 704, 35 S.W.3d 792, 799-800 (2000). A person whose actions are clearly proscribed by a- statute cannot assert its potential vagueness as applied to other persons or circumstances unless the law restricts constitutionally protected conduct. Garner v. White, 726 F.2d 1274, 1278 (8th Cir. 1984). We have held that, as a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the facts at issue. Bowker v. State, 363 Ark. 345, 355-56, 214 S.W.3d 243, 249 (2005). When challenging the constitutionality of a statute on grounds of | ^vagueness, the individual challenging • the statute must be one of the “entrapped innocent” who has not received fair warning that certain conduct has been proscribed. Id. However, if, by his or her action, that individual clearly falls within the conduct proscribed by the statute, he or she cannot be heard to complain. Id.

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