Damien D. Ford v. State of Arkansas

2021 Ark. 112, 622 S.W.3d 635

• Court: Supreme Court of Arkansas
• Decided: May 13, 2021
• Status: Published

Opinion

Digitally signed by Susan Williams Reason: I attest to the accuracy and integrity of Cite as 2021 Ark. 112 this document Date: SUPREME COURT OF ARKANSAS 2023.06.22 No. CR-20-283 12:36:34 -05'00' Opinion Delivered May 13, 2021 DAMIEN D. FORD APPELLANT PRO SE APPEAL FROM THE MILLER COUNTY CIRCUIT COURT V. [NO. 46CR-10-383]

STATE OF ARKANSAS HONORABLE BRENT HALTOM, APPELLEE JUDGE

AFFIRMED.

SHAWN A. WOMACK, Associate Justice

Damien D. Ford 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). Ford alleged that his sentence is illegal because the trial court did not have jurisdiction

to modify his sentence when it revoked his probation and that he was not afforded a

preliminary hearing before he pled guilty to, and was originally convicted of, possession of

a controlled substance. The circuit court denied his petition, finding that the trial court had

the authority to modify the sentence and that Ford’s remaining allegation constituted an

untimely claim for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of

Criminal Procedure. We find no error and affirm.

I. Background

In January 2011, Ford pled guilty to possession of a controlled substance, namely

cocaine, pursuant to Arkansas Code Annotated section 5-64-401 (Repl. 2005), a Class C felony, and was sentenced to three years’ probation. On September 10, 2012, the State filed

a petition for revocation of Ford’s probation based on the following violations: (1) Ford

committed additional crimes while on probation, including battery and aggravated assault;

(2) Ford failed to report to his supervising officer on multiple occasions; and (3) Ford failed

to pay his financial obligations consisting of court-ordered supervision fees. Ford’s probation

was revoked by an order entered on April 25, 2013, and Ford was sentenced to 120 months’

incarceration. Ford did not appeal the revocation of his probation.

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, and the petitioner

seeking relief under section 16-90-111(a) carries the burden of demonstrating that his

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

2 54. A circuit court has 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. Id.

IV. Claims for Relief

Ford contends that the trial court did not have jurisdiction to modify his original

sentence from three years’ probation to 120 months’ incarceration and instead insists that

the original sentence of three years is the legal sentence. Ford is mistaken. If a court revokes

a suspension or probation, the court may enter a judgment of conviction and may impose

any sentence on the defendant that might have been imposed originally for the offense of

which he was found guilty. Ark. Code Ann. § 5-4-309(g)(1)(A) (Supp. 2009); see State v.

Brown, 2019 Ark. 395, 590 S.W.3d 121 (citing Lee v. State, 2010 Ark. 261 (per curiam)).

Ford was originally convicted of a Class C felony, which carries a maximum sentence of ten

years’ imprisonment. Ark. Code Ann. § 5-4-401(a)(4) (Repl. 2006). Because the trial court

had jurisdiction to modify Ford’s sentence to one that does not exceed the maximum for

the crime for which he was convicted, the sentence is legal.

Ford’s second claim for relief under section 16-90-111 that he was originally

convicted without being afforded a preliminary hearing is likewise without merit. Ford’s

claim regarding the lack of a preliminary hearing does not challenge the sentence but

challenges the validity of the conviction for a crime to which he pled guilty. At best, this

claim represents an allegation that the sentence was imposed in an illegal manner due to trial

error.

3 This court has 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) (2020). Redus, 2019 Ark. 44, 566

S.W.3d 469. When allegations in a section 16-90-111 petition go behind the face of the

judgment, they do not implicate the facial validity of the judgment, and a petitioner is

obligated to raise such allegations under Rule 37.2(c)(1) and to pursue such claims within

ninety days from the date the judgment was entered. Id. If the time for relief under Rule

37.2 has expired, section 16-90-111 provides no relief for claims that a sentence was illegally

imposed; that is, a petition under section 16-90-111 is not a substitute for filing a timely

petition under Rule 37.1. Id. Ford’s allegation would require an examination of matters

beyond the face of the judgment and therefore does not fall within the purview of section

16-90-111. Because Ford did not seek relief within ninety days of the date that his original

judgment of conviction was entered, the circuit court did not clearly err when it denied

Ford’s petition.

Damien D. Ford, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.