Cite as 2024 Ark. 48 SUPREME COURT OF ARKANSAS No. CV-23-377
Opinion Delivered: April 11, 2024 DAVID STEWART APPELLANT PRO SE APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT V. [NO. 35CV-23-76]
DEXTER PAYNE, DIRECTOR, HONORABLE JODI RAINES ARKANSAS DIVISION OF DENNIS, JUDGE CORRECTION APPELLEE AFFIRMED.
KAREN R. BAKER, Associate Justice
Appellant David Stewart appeals the denial and dismissal of his pro se petition for
writ of habeas corpus filed pursuant to Arkansas Code Annotated section 16-112-101 (Repl.
2016) in Jefferson County, which is the county where he is incarcerated. Stewart contended
that he was entitled to habeas relief because his conviction for two counts of sexual assault
violated the prohibition against double jeopardy and that a condition placed on his
incarceration rendered his sentencing order illegal. Stewart further filed a motion for default
judgment in the circuit court alleging that the respondent failed to respond to his petition.
The circuit court found that the sentencing order was not illegal on its face and that Stewart
was not entitled to a default judgement on his petition for the writ. We affirm.
I. Background
On December 13, 2019, Stewart pleaded guilty to two counts of second-degree
sexual assault. He was sentenced to 240 months’ imprisonment for the first count of sexual assault and to a consecutive term of 60 months’ imprisonment for the second count,
followed by a consecutive sentence of 120 months’ suspended imposition of sentence (SIS).
The charges arose from sexual contact with a child under the age of fourteen. As reflected
within the sentencing order, an original charge of rape was reduced to second-degree sexual
assault.1 The sentencing order also added the following two conditions: “[Stewart] to
complete RSVP [Reduction of Sexual Victimization Program] while in ADC. No contact
with victim.” See Seamster v. State, 2009 Ark. 258, 308 S.W.3d 567.
II. Grounds for Issuance of the Writ
A writ of habeas corpus is proper when a judgment and commitment order is invalid
on its face or when a circuit court lacks jurisdiction over the cause. Finney v. Kelley, 2020
Ark. 145, 598 S.W.3d 26. Jurisdiction is the power of the court to hear and determine the
subject matter in controversy. Id. When the circuit court has personal jurisdiction over the
appellant and also has jurisdiction over the subject matter, the court has authority to render
the judgment. Id. A circuit court has subject-matter jurisdiction to hear and determine
cases involving violations of criminal statutes and has personal jurisdiction over offenses
committed within the county over which it presides. Fuller/Akbar v. Payne, 2021 Ark. 155,
628 S.W.3d 366.
A petitioner for the writ who does not allege his or her actual innocence and proceed
under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the circuit
court’s lack of jurisdiction and make a showing, by affidavit or other evidence, of probable
1 The sentencing order reflects that the original crime was charged in accordance with Arkansas Code Annotated section 5-14-103(a)(3)(A), which encompasses sexual intercourse with a person under fourteen years of age; that charge was reduced to a violation of section 5-14-125(a)(3), which encompasses sexual contact with a person under the age of fourteen. 2 cause to believe that he or she is being illegally detained. Id. (citing Ark. Code Ann. § 16-
112-103(a)(1) (Repl. 2016)). Proceedings for the writ do not require an extensive review
of the record of the trial proceedings, and the circuit court’s inquiry into the validity of the
judgment is limited to the face of the commitment order. Id. Unless the petitioner can
show that the circuit court lacked jurisdiction or that the commitment order was invalid on
its face, there is no basis for a finding that a writ of habeas corpus should issue. Id. In habeas
proceedings, an illegal sentence is one that exceeds the statutory maximum sentence. See
Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283.
III. Standard of Review
A circuit court’s decision on a petition for writ of habeas corpus will be upheld unless
it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A decision 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.
IV. Claims for Relief
Stewart makes two claims for habeas relief: (1) his conviction for two counts of
second-degree sexual assault arose from the same incident and the same continuing course
of conduct and therefore violates the prohibition against double jeopardy; (2) the sentencing
order is illegal on its face because it imposes the requirement that Stewart participate in
RSVP. Finally, Stewart contends that the circuit court erred when it denied his motion for
a default judgment.
While some double-jeopardy claims are cognizable in habeas proceedings, if the
petitioner does not show that on the face of the commitment order an illegal sentence was 3 imposed, the claim does not implicate the jurisdiction of the court to hear the case, and the
claim is not cognizable. Jones v. Payne, 2021 Ark. 37, 618 S.W.3d 132. It is well settled
that rape is not defined as a continuing offense. Ricks v. State, 327 Ark. 513, 940 S.W.2d
422 (1997). When the impulse is single, only one charge lies no matter how long the act
may continue. Id. If there are successive impulses, even though all unite in a common course
of action, separate charges lie, and the test is whether the prohibition is of the individual
acts or the course of action they constitute. Id. Each episode of rape and each means of
penetration during the rapes constitute different occurrences of an “impulse” to allow
multiple counts to be sustained. McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999).
The same analysis has been applied when the charged counts were based on sexual assault.
Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam).
Here, the face of the sentencing order does not show that the two counts of sexual
assault were the result of one continuing offense involving the same impulse and the same
conduct such as to violate the prohibition against double jeopardy. Proof of the same
impulse requires an inquiry that would go behind the face of the sentencing order.
Moreover, the face of the sentencing order reflects that Stewart was originally charged with
one count of rape and one count of sexual assault, indicating that there were distinct impulses
involved in each charge of sexual assault. Stewart has failed to demonstrate that the
sentencing order is illegal on its face or that the trial court lacked jurisdiction to convict him
of separate counts of second-degree sexual assault.
Likewise unavailing is Stewart’s claim that completion of RSVP imposed in the
sentencing order rendered his sentence illegal. The sentencing order reflects that Stewart
was sentenced to a consecutive term of 120 months’ SIS following his aggregate sentence 4 of 300 months’ imprisonment. While completing RSVP should not be imposed as a
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Cite as 2024 Ark. 48 SUPREME COURT OF ARKANSAS No. CV-23-377
Opinion Delivered: April 11, 2024 DAVID STEWART APPELLANT PRO SE APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT V. [NO. 35CV-23-76]
DEXTER PAYNE, DIRECTOR, HONORABLE JODI RAINES ARKANSAS DIVISION OF DENNIS, JUDGE CORRECTION APPELLEE AFFIRMED.
KAREN R. BAKER, Associate Justice
Appellant David Stewart appeals the denial and dismissal of his pro se petition for
writ of habeas corpus filed pursuant to Arkansas Code Annotated section 16-112-101 (Repl.
2016) in Jefferson County, which is the county where he is incarcerated. Stewart contended
that he was entitled to habeas relief because his conviction for two counts of sexual assault
violated the prohibition against double jeopardy and that a condition placed on his
incarceration rendered his sentencing order illegal. Stewart further filed a motion for default
judgment in the circuit court alleging that the respondent failed to respond to his petition.
The circuit court found that the sentencing order was not illegal on its face and that Stewart
was not entitled to a default judgement on his petition for the writ. We affirm.
I. Background
On December 13, 2019, Stewart pleaded guilty to two counts of second-degree
sexual assault. He was sentenced to 240 months’ imprisonment for the first count of sexual assault and to a consecutive term of 60 months’ imprisonment for the second count,
followed by a consecutive sentence of 120 months’ suspended imposition of sentence (SIS).
The charges arose from sexual contact with a child under the age of fourteen. As reflected
within the sentencing order, an original charge of rape was reduced to second-degree sexual
assault.1 The sentencing order also added the following two conditions: “[Stewart] to
complete RSVP [Reduction of Sexual Victimization Program] while in ADC. No contact
with victim.” See Seamster v. State, 2009 Ark. 258, 308 S.W.3d 567.
II. Grounds for Issuance of the Writ
A writ of habeas corpus is proper when a judgment and commitment order is invalid
on its face or when a circuit court lacks jurisdiction over the cause. Finney v. Kelley, 2020
Ark. 145, 598 S.W.3d 26. Jurisdiction is the power of the court to hear and determine the
subject matter in controversy. Id. When the circuit court has personal jurisdiction over the
appellant and also has jurisdiction over the subject matter, the court has authority to render
the judgment. Id. A circuit court has subject-matter jurisdiction to hear and determine
cases involving violations of criminal statutes and has personal jurisdiction over offenses
committed within the county over which it presides. Fuller/Akbar v. Payne, 2021 Ark. 155,
628 S.W.3d 366.
A petitioner for the writ who does not allege his or her actual innocence and proceed
under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the circuit
court’s lack of jurisdiction and make a showing, by affidavit or other evidence, of probable
1 The sentencing order reflects that the original crime was charged in accordance with Arkansas Code Annotated section 5-14-103(a)(3)(A), which encompasses sexual intercourse with a person under fourteen years of age; that charge was reduced to a violation of section 5-14-125(a)(3), which encompasses sexual contact with a person under the age of fourteen. 2 cause to believe that he or she is being illegally detained. Id. (citing Ark. Code Ann. § 16-
112-103(a)(1) (Repl. 2016)). Proceedings for the writ do not require an extensive review
of the record of the trial proceedings, and the circuit court’s inquiry into the validity of the
judgment is limited to the face of the commitment order. Id. Unless the petitioner can
show that the circuit court lacked jurisdiction or that the commitment order was invalid on
its face, there is no basis for a finding that a writ of habeas corpus should issue. Id. In habeas
proceedings, an illegal sentence is one that exceeds the statutory maximum sentence. See
Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283.
III. Standard of Review
A circuit court’s decision on a petition for writ of habeas corpus will be upheld unless
it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A decision 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.
IV. Claims for Relief
Stewart makes two claims for habeas relief: (1) his conviction for two counts of
second-degree sexual assault arose from the same incident and the same continuing course
of conduct and therefore violates the prohibition against double jeopardy; (2) the sentencing
order is illegal on its face because it imposes the requirement that Stewart participate in
RSVP. Finally, Stewart contends that the circuit court erred when it denied his motion for
a default judgment.
While some double-jeopardy claims are cognizable in habeas proceedings, if the
petitioner does not show that on the face of the commitment order an illegal sentence was 3 imposed, the claim does not implicate the jurisdiction of the court to hear the case, and the
claim is not cognizable. Jones v. Payne, 2021 Ark. 37, 618 S.W.3d 132. It is well settled
that rape is not defined as a continuing offense. Ricks v. State, 327 Ark. 513, 940 S.W.2d
422 (1997). When the impulse is single, only one charge lies no matter how long the act
may continue. Id. If there are successive impulses, even though all unite in a common course
of action, separate charges lie, and the test is whether the prohibition is of the individual
acts or the course of action they constitute. Id. Each episode of rape and each means of
penetration during the rapes constitute different occurrences of an “impulse” to allow
multiple counts to be sustained. McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999).
The same analysis has been applied when the charged counts were based on sexual assault.
Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam).
Here, the face of the sentencing order does not show that the two counts of sexual
assault were the result of one continuing offense involving the same impulse and the same
conduct such as to violate the prohibition against double jeopardy. Proof of the same
impulse requires an inquiry that would go behind the face of the sentencing order.
Moreover, the face of the sentencing order reflects that Stewart was originally charged with
one count of rape and one count of sexual assault, indicating that there were distinct impulses
involved in each charge of sexual assault. Stewart has failed to demonstrate that the
sentencing order is illegal on its face or that the trial court lacked jurisdiction to convict him
of separate counts of second-degree sexual assault.
Likewise unavailing is Stewart’s claim that completion of RSVP imposed in the
sentencing order rendered his sentence illegal. The sentencing order reflects that Stewart
was sentenced to a consecutive term of 120 months’ SIS following his aggregate sentence 4 of 300 months’ imprisonment. While completing RSVP should not be imposed as a
condition of incarceration, it is often imposed as a condition of parole or SIS. Richie v. State,
2009 Ark. 602, 357 S.W.3d 909. It is Stewart’s burden to show, by affidavit or other
evidence, that he has probable cause to believe that he is being illegally detained. Clemmons
v. Kelley, 2021 Ark. 47, 618 S.W.3d 128. Stewart must also establish with factual support
that he is entitled to issuance of the writ. Id. Here, the face of the sentencing order shows
that “additional information” had been added to the order that included two conditions—
one to complete RSVP and the other to have no contact with the victim. Stewart has failed
to show that these two additional conditions are part of his incarceration rather than his
suspended sentence.
Finally, Stewart mistakenly claims that the circuit court erred by denying his motion
for a default judgment filed pursuant to Arkansas Rule of Civil Procedure 55 (2022). The
Arkansas Rules of Civil Procedure do not apply to a postconviction habeas proceeding.
Darrough v. Kelley, 2017 Ark. 314, 530 S.W.3d 332. The State is not required to file a return
until the circuit court makes a determination of probable cause—which it did not do here.
Id. The circuit court did not clearly err when it found that Stewart failed to demonstrate
entitlement to habeas relief, and it properly denied Stewart’s motion for a default judgment.
Affirmed.
David Stewart, pro se appellant.
Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.