Andwelle Sieed Ellis v. State of Arkansas

2019 Ark. 286

• Court: Supreme Court of Arkansas
• Decided: October 17, 2019
• Status: Published

Opinion

Digitally signed by Susan P. Williams Reason: I attest to the accuracy and integrity of Cite as 2019 Ark. 286 this document Date: SUPREME COURT OF ARKANSAS 2022.07.20 No. CR-18-460 15:34:50 -05'00'

Opinion Delivered: October 17, 2019 ANDWELLE SIEED ELLIS APPELLANT

V. APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT STATE OF ARKANSAS [NO. 34CR-16-55]

APPELLEE HONORABLE HAROLD S. ERWIN, JUDGE

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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

1 Under Arkansas Code Annotated section 5-13-310(b)(2), a terroristic act is a Class Y felony “if the person with the purpose of causing physical injury to another person causes serious physical injury or death to any person.” Otherwise, any person who commits a terroristic act is guilty of a Class B felony. See Ark. Code Ann. § 5-13-310(b)(1) (Repl. 2013). 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, appellant’s 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.

2 (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. Here,

2 No stage-two verdict form was submitted to the jury for sentencing for employing a firearm as a means of committing murder in the first degree, and no sentence was imposed for employing a firearm as a means of committing murder in the first degree.

3 the State argues that appellant’s 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 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

appellant’s 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

4 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 appellant employed a firearm as a means of committing

terroristic acts, we reverse appellant’s twenty-nine one-year sentences imposed as firearm

enhancements, and we remand with instructions for the court to enter a corrected

sentencing order consistent with this opinion.

II. Concurrent or Consecutive Sentences

Arkansas Code Annotated section 5-4-403 (Repl. 2013) provides that sentences of

imprisonment “shall run concurrently unless, upon recommendation of the jury or the

court’s own motion, the court orders the sentences to run consecutively.” Here, the jury

recommended that all of appellant’s sentences run concurrently. When reviewing the verdict

forms in front of the jury, the trial court acknowledged that the jury recommended

concurrent sentences and stated in regard to the firearm enhancements, “I will have to see

about that as it may be by operation of law[.]” The sentencing order provides that, in

addition to the firearm-enhancement sentences running consecutively, appellant’s

convictions for the terroristic act causing death (Count 2) and the terroristic acts (Counts

3–30) are consecutive to his conviction for murder in the first degree (Count 1).

3 Thus, this case is distinguishable from Martinez v. State, 2019 Ark. 85, 569 S.W.3d 333. In Martinez, the finding of guilt on the substantive charge of unlawful discharge of a firearm from a vehicle, Class Y felony, necessarily included a finding that the defendant had used a firearm in the commission of a felony.

5 On appeal, appellant argues that, on the basis of the trial court’s statements from the

bench, only the firearm-enhancement sentences were ordered to be consecutive on the

court’s own motion. He asks this court to remand to correct his sentencing order to reflect

that his forty-year sentence on Count 2 and his five-year sentences for Counts 3–30 run

concurrently to Count 1. However, when there are differences between the oral ruling and

the written order, the trial court’s written order controls. State v. Williams, 2013 Ark. 164,

at 5. Furthermore, the trial court is not bound by a recommendation of the jury concerning

whether multiple sentences will run concurrently or consecutively. See Ark. Code Ann.

§ 5-4-403(d). Quite simply, the written order controls, and we see no reversible error on

this point.

III. Rule 4-3(i) Review

In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been

examined for all objections, motions, and requests made by either party that were decided

adversely to appellant. Other than the error outlined above concerning the firearm

enhancements, no prejudicial error has been found.

IV. Conclusion

Appellant’s convictions and sentences for murder in the first degree (Count 1), a

terroristic act causing death (Class Y felony; Count 2), and the terroristic acts (Class B felony;

Counts 3–30) are affirmed. Appellant’s firearm enhancements are reversed, and we remand

for entry of a corrected sentencing order consistent with this opinion.

HART, J., concurs.

6 WOMACK, J., dissents in part and concurs in part.

JOSEPHINE LINKER HART, Justice, concurring. I agree that the sentences for

twenty-nine counts of firearm enhancement are illegal. However, in my view, the sentence

is illegal because it offends the Fifth Amendment’s Double Jeopardy Clause and its

counterpart in the Arkansas Constitution, article 2, section 8. Both clauses proscribe multiple

punishments for the same offense. Under the facts of this case, the firearm enhancements

are not constitutionally permissible.

While I am mindful that Arkansas Code Annotated section 5-13-310(a) contemplates

an alternative means of committing a terroristic act that does not require the use of a firearm,

the jury was instructed only as follows:

AMCI 2d 1312 Andwelle Ellis is charged with 29 counts of committing a Terroristic Act. To sustain these charges the State must prove beyond a reasonable doubt that, while not in the commission of a lawful act and with the purpose of causing injury to another person or damage to property, Andwelle Ellis or an accomplice shot at a conveyance that was being operated or that was occupied by another person or other persons or shot at an occupiable structure.

(Emphasis added.) It is axiomatic that a person cannot “shoot” without a firearm. So, during

the guilt phase, the jury did find beyond a reasonable doubt that Mr. Ellis used a firearm to

commit a terroristic act. Herein lies the problem.

The actus reus of the substantive charge––committing a terroristic act––requires the

use of a firearm as one of the elements of the charge. Accordingly, Mr. Ellis’s sentences for

twenty-nine counts of committing a terroristic act—180 years—punished him for the use

of a firearm to commit the offense. The so-called firearm enhancement, codified at Arkansas

Code Annotated section 16-90-120(a), is constitutionally infirm as applied to Mr. Ellis

7 because the use-of-a-firearm enhancement again punished him in those twenty-nine counts

of committing a terroristic act. Because section 16-90-120(a) applies only to a felony

conviction, it necessarily requires all the elements for that conviction in addition to the use

of a firearm. But when one of the elements of a felony, as in the case before us, is the use

of a firearm, the Double Jeopardy Clause is implicated. With all due respect to the dissenting

justice, the Constitution is the supreme law of the land, not the pronouncements of the

General Assembly.

In the venerable case of Blockburger v. United States, 284 U.S. 299 (1932), the Supreme

Court promulgated that same-elements test in order to determine whether the same act

violates two separate statutory provisions, and thus the Double Jeopardy Clause. The

Blockburger Court stated:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . [A] single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

284 U.S. at 304 (citations omitted). Obviously, in the case before us, the elements of the

underlying felony are the same in both the substantive charge and the enhancement. Use of

a firearm is one of those elements. Applying the same-element test, as we must, the

inevitable conclusion is that the firearm enhancement violates the Double Jeopardy Clause.

Id. For that reason, the additional twenty-nine years imposed pursuant to the firearm

enhancement constitutes an illegal sentence.

I concur.

8 SHAWN A. WOMACK, Justice, dissenting in part and concurring in part.

Because a terroristic act may be committed without a firearm, the majority concludes that

the jury did not clearly find that Andwelle Ellis employed a firearm as a means of committing

the twenty-nine terroristic acts. For that reason, the majority reverses the twenty-nine

firearm enhancements imposed by the jury. I do not believe this conclusion is supported by

the record and would affirm the sentences imposed as firearm enhancements. I also write to

briefly respond to Justice Hart’s assertion that imposition of the firearm enhancements would

violate the Double Jeopardy Clause.

A person commits a terroristic act if he “shoots at or in any manner projects an object

at a conveyance which is being operated or which is occupied by another person” or if he

“shoots at an occupiable structure[.]” See Ark. Code Ann. § 5-13-310(a). The use of a

firearm is thus not required to commit a terroristic act. But the jury was instructed only to

determine whether Ellis or an accomplice “shot at a conveyance that was being operated or

that was occupied by another person or other persons or shot at an occupiable structure.”

See R. 737–39 (emphasis added). The jury convicted Ellis of twenty-nine counts of

terroristic act under this instruction.

At the same time, the jury was also instructed to determine whether Ellis employed

a firearm as a means of committing the terroristic acts. But no verdict was rendered on the

issue during the guilt phase. At sentencing, however, the jury found that Ellis employed a

firearm as a means of committing the terroristic acts and recommended a one-year firearm

enhancement for each of the twenty-nine counts. See Ark. Code Ann. § 16-90-120.

9 I believe our recent decision in Martinez v. State is instructive. There, the defendant

was convicted of capital murder and unlawful discharge of a firearm. 2019 Ark. 85, 569

S.W.3d 333. At sentencing, the jury recommended a firearm enhancement even though it

had not rendered a verdict on the enhancement. Id. We concluded that the capital murder

and unlawful discharge convictions required the jury to find beyond a reasonable doubt that

the defendant used a firearm in the commission of the capital murder. Id. Because the

sentence enhancement is not a substantive offense, these findings of guilt were sufficient to

trigger the application of the firearm enhancement statute. Id.

So too here. Even though the terroristic act statute does not require use of a firearm,

the jury found beyond a reasonable doubt that Ellis “shot at a conveyance . . . or shot at an

occupiable structure.” By convicting Ellis on these charges, the jury found that he employed

a firearm as a means of committing terroristic acts. Moreover, like Martinez, the information

alleged that Ellis used a firearm in the commission of a felony. Under the facts presented, I

believe the twenty-nine firearm enhancements are legal.

Contrary to Justice Hart’s view, the firearm enhancement sentences do not violate

double jeopardy under Blockburger v. United States, 284 U.S. 299 (1932). The Double

Jeopardy Clause protects against multiple punishments for the same conviction. See Garrett

v. United States, 471 U.S. 773, 776 (1985). However, the clause “does no more than prevent

the sentencing court from prescribing greater punishment than the legislature intended.”

Missouri v. Hunter, 459 U.S. 359, 366 (1983). Blockburger establishes a rule of statutory

construction to determine legislative purpose absent clear legislative intent. Id. at 367–68.

But the Blockburger rule is not controlling when legislative intent is evident. Garrett, 471 U.S.

10 at 779. Where the legislature “specifically authorizes cumulative punishments under two

statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under

Blockburger, a court’s task of statutory construction is at an end.” Hunter, 459 U.S. at 368–

69; see Ohio v. Johnson, 467 U.S. 493, 499 n.8 (1984) (same). Cumulative punishments may

then be imposed without running afoul of double jeopardy. Id.

In Hunter, the defendant was convicted of robbery in the first degree by means of a

dangerous or deadly weapon. Id. at 362. State law provided that any person who committed

a felony with or through the use of a dangerous or deadly weapon was also guilty of armed

criminal action and subject to an additional sentence. Id. Because the legislature clearly

authorized the cumulative punishments, the Court held that imposition of such sentence

did not violate double jeopardy. Id. at 368. That the statutes failed the Blockburger test was

of no consequence in light of the clear legislative intent. Id.

We have recognized that the legislature, and not the courts, prescribes the scope of

crimes and punishment. See Rowbottom v. State, 341 Ark. 33, 39, 13 S.W.3d 904, 908 (2000).

By extension, the legislature has the authority to impose cumulative punishments for the

same conduct. Id. In an exercise of that power, the General Assembly clearly authorized the

imposition of multiple punishments for a felony offense under the firearm enhancement

statute. See Williams v. State, 364 Ark. 203, 208–09, 217 S.W.3d 817, 820 (2005); Ark. Code

Ann. § 16-90-120(a)–(b). Indeed, the statute provides that

(a) Any person convicted of any [felony] offense . . . 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[.]

11 (b) The period of confinement, if any, imposed under this 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 the conviction of the felony itself. Id. (emphasis added). The italicized language clearly indicates that a firearm enhancement

may be cumulatively imposed with the sentence for the predicate felony conviction. The

legislative intent is further evinced by the requirement that any additional sentence run

consecutive, rather than concurrent, to the sentence imposed for the underlying conviction.

Ellis’s terroristic act convictions and firearm enhancements were both based on the

use of a firearm. These “same elements” are alleged to violate Blockburger. But that analysis

goes a step too far. Given the legislature’s clear authorization of cumulative punishments,

Blockburger’s “same elements” test is irrelevant here. See Hunter, 459 U.S. at 368–69. Ellis’s

firearm enhancement sentences are consistent with legislative intent and do not violate

double jeopardy. I would accordingly affirm the jury’s lawful imposition of the twenty-nine

one-year sentences.

I concur with the remainder of the majority’s decision.

John Wesley Hall and Sarah M. Pourhosseini, for appellant.

Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.