Cite as 2019 Ark. 264 Digitally signed by Susan P. Williams SUPREME COURT OF ARKANSAS Reason: I attest to the accuracy No. CR-18-134 and integrity of this document Date: 2022.07.18 12:15:55 -05'00' Opinion Delivered: October 10, 2019 JIMMY SCHERRER APPELLANT APPEAL FROM THE DESHA COUNTY CIRCUIT COURT V. [NO. 21ACR-85-36]
STATE OF ARKANSAS HONORABLE STEVEN R. PORCH, APPELLEE JUDGE
REVERSED AND REMANDED.
JOHN DAN KEMP, Chief Justice
Appellant Jimmy Lee Scherrer appeals from an order of the circuit court denying his
pro se motion to vacate his amended sentencing order entered under the Fair Sentencing of
Minors Act of 2017 (FSMA or the “Act”).1 We reverse the circuit court’s order and remand
for resentencing in accordance with our decision in Harris v. State, 2018 Ark. 179, 547
S.W.3d 64.
In 1986, Scherrer was convicted of the capital murder of Debbie Watts. He was
sixteen years old at the time of the crime.2 The State waived the death penalty, and Scherrer
received a mandatory sentence of life imprisonment without parole. See Ark. Stat. Ann.
§ 41-1501(3) (Supp. 1985) (stating that capital murder is punishable by death or life
1 See Act of Mar. 20, 2017, No. 539, 2017 Ark. Acts 2615. 2 Scherrer was born on December 4, 1968, and the crime was committed on September 18, 1985. imprisonment without parole). His conviction and sentence were affirmed on appeal.
Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988).
In Miller v. Alabama, and the companion case from Arkansas, Jackson v. Hobbs, the
Supreme Court of the United States held that “the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile offenders.” 567
U.S. 460, 479 (2012). The Court further held that defendants who committed homicide
crimes as juveniles and faced a sentence of life without parole were entitled to a sentencing
hearing that would permit a judge or jury to consider the individual characteristics of the
defendant and the individual circumstances of the crime as mitigating factors for a lesser
sentence. Id. at 489.
On remand from the Supreme Court in Jackson, we granted habeas relief and
remanded the case to the circuit court for a resentencing hearing at which Jackson could
present Miller evidence for consideration. See Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d
906. We held that Jackson’s sentence must fall within the statutory discretionary sentencing
range for a Class Y felony, which is ten to forty years or life. Id., 426 S.W.3d 906.3
Following the Supreme Court’s decision in Miller and this court’s decision in Jackson
on remand, Scherrer petitioned for writ of habeas corpus in the Lincoln County Circuit
3 After Jackson obtained relief, other “Miller defendants” sought resentencing. In Kelley v. Gordon, 2015 Ark. 277, 465 S.W.3d 842, we held that, as a matter of “fundamental fairness and evenhanded justice,” Miller applied to all juvenile offenders convicted of capital murder. Id. at 7, 465 S.W.3d at 846. Subsequently, the Supreme Court resolved a split of authority and held that Miller’s prohibition on mandatory life without parole for juvenile offenders is retroactive to cases on collateral review. Montgomery v. Louisiana, 577 U.S. 190 (2016).
2 Court. The circuit court issued the writ, vacated Scherrer’s mandatory sentence of life
without parole, and remanded the case to the Desha County Circuit Court for resentencing.
Before Scherrer’s resentencing hearing was held, the Arkansas General Assembly passed the
FSMA. The Act, which became effective on March 20, 2017, eliminated life without parole
as a sentencing option for juvenile offenders and extended parole eligibility to juvenile
offenders. Citing the FSMA, the circuit court “discontinued” the resentencing hearing. In
an amended sentencing order entered on June 1, 2017, the circuit court sentenced Scherrer
to life imprisonment with the possibility of parole after thirty years, pursuant to the FSMA.
On July 7, 2017, Scherrer filed a pro se motion to vacate the amended sentencing
order arguing that (1) the circuit court could not amend his sentence under the FSMA
because it had been vacated by the habeas order, (2) he was entitled to a resentencing hearing
as a matter of fundamental fairness and evenhanded justice, and (3) the application of the
FSMA to his sentence was unconstitutional because it was ex post facto legislation. The
State responded and asserted that the FSMA remedied the Miller violation by retroactively
extending parole eligibility to juvenile offenders. In an order entered on November 13,
2017, the circuit court found that it lacked jurisdiction to rule on Scherrer’s motion to
vacate because, as a posttrial motion under Arkansas Rule of Criminal Procedure 33.3(c),
the motion had already been deemed denied.
Scherrer appealed the circuit court’s order. In his pro se brief on appeal, however,
he asserts that the circuit court lacked jurisdiction to rule on his motion to vacate and that
his “attempt to have his illegal amended sentence vacated was doomed from the start.” In
any event, this court may address the issue of an illegal sentence sua sponte. See Harness v.
3 State, 352 Ark. 335, 339, 101 S.W.3d 235, 238 (2003) (noting that we treat problems of
void or illegal sentences like problems of subject-matter jurisdiction and review them even
if not raised on appeal). A sentence is void or illegal when the circuit court lacks the
authority to impose it. Cross v. State, 2009 Ark. 597, 357 S.W.3d 895. The question in this
case is whether the circuit court had the authority to sentence Scherrer under the FSMA.
In Harris, 2018 Ark. 179, 547 S.W.3d 64, a juvenile offender convicted of capital
murder challenged the application of the FSMA to his case. Harris committed his crime in
1996, when he was fifteen years old; the circuit court vacated his mandatory sentence of life
without parole in 2016; and a resentencing hearing was set for May 2017. We concluded
that the FSMA did not apply to Harris, holding in relevant part that (1) the revised
punishment for juveniles convicted of capital murder—life imprisonment with the
possibility of parole after thirty years—is not retroactive and applies only to crimes
committed on or after March 20, 2017, the effective date of the FSMA; (2) the parole-
eligibility provisions of the FSMA did not apply to Harris at the time of his resentencing
hearing because his sentence had been vacated, and he was no longer serving a sentence to
which parole eligibility could attach; and (3) Harris was entitled to a hearing to present Miller
evidence for consideration and sentencing within the discretionary range for a Class Y
felony, which is ten to forty years or life.
The facts in Scherrer’s case are analogous to the facts in Harris. Scherrer, like Harris,
committed his crime before the effective date of the FSMA; therefore, the penalty provisions
of the FSMA do not apply to him. Likewise, the parole-eligibility provision does not apply
to Scherrer. His sentence, like Harris’s sentence, had already been vacated at the time of his
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Cite as 2019 Ark. 264 Digitally signed by Susan P. Williams SUPREME COURT OF ARKANSAS Reason: I attest to the accuracy No. CR-18-134 and integrity of this document Date: 2022.07.18 12:15:55 -05'00' Opinion Delivered: October 10, 2019 JIMMY SCHERRER APPELLANT APPEAL FROM THE DESHA COUNTY CIRCUIT COURT V. [NO. 21ACR-85-36]
STATE OF ARKANSAS HONORABLE STEVEN R. PORCH, APPELLEE JUDGE
REVERSED AND REMANDED.
JOHN DAN KEMP, Chief Justice
Appellant Jimmy Lee Scherrer appeals from an order of the circuit court denying his
pro se motion to vacate his amended sentencing order entered under the Fair Sentencing of
Minors Act of 2017 (FSMA or the “Act”).1 We reverse the circuit court’s order and remand
for resentencing in accordance with our decision in Harris v. State, 2018 Ark. 179, 547
S.W.3d 64.
In 1986, Scherrer was convicted of the capital murder of Debbie Watts. He was
sixteen years old at the time of the crime.2 The State waived the death penalty, and Scherrer
received a mandatory sentence of life imprisonment without parole. See Ark. Stat. Ann.
§ 41-1501(3) (Supp. 1985) (stating that capital murder is punishable by death or life
1 See Act of Mar. 20, 2017, No. 539, 2017 Ark. Acts 2615. 2 Scherrer was born on December 4, 1968, and the crime was committed on September 18, 1985. imprisonment without parole). His conviction and sentence were affirmed on appeal.
Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988).
In Miller v. Alabama, and the companion case from Arkansas, Jackson v. Hobbs, the
Supreme Court of the United States held that “the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile offenders.” 567
U.S. 460, 479 (2012). The Court further held that defendants who committed homicide
crimes as juveniles and faced a sentence of life without parole were entitled to a sentencing
hearing that would permit a judge or jury to consider the individual characteristics of the
defendant and the individual circumstances of the crime as mitigating factors for a lesser
sentence. Id. at 489.
On remand from the Supreme Court in Jackson, we granted habeas relief and
remanded the case to the circuit court for a resentencing hearing at which Jackson could
present Miller evidence for consideration. See Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d
906. We held that Jackson’s sentence must fall within the statutory discretionary sentencing
range for a Class Y felony, which is ten to forty years or life. Id., 426 S.W.3d 906.3
Following the Supreme Court’s decision in Miller and this court’s decision in Jackson
on remand, Scherrer petitioned for writ of habeas corpus in the Lincoln County Circuit
3 After Jackson obtained relief, other “Miller defendants” sought resentencing. In Kelley v. Gordon, 2015 Ark. 277, 465 S.W.3d 842, we held that, as a matter of “fundamental fairness and evenhanded justice,” Miller applied to all juvenile offenders convicted of capital murder. Id. at 7, 465 S.W.3d at 846. Subsequently, the Supreme Court resolved a split of authority and held that Miller’s prohibition on mandatory life without parole for juvenile offenders is retroactive to cases on collateral review. Montgomery v. Louisiana, 577 U.S. 190 (2016).
2 Court. The circuit court issued the writ, vacated Scherrer’s mandatory sentence of life
without parole, and remanded the case to the Desha County Circuit Court for resentencing.
Before Scherrer’s resentencing hearing was held, the Arkansas General Assembly passed the
FSMA. The Act, which became effective on March 20, 2017, eliminated life without parole
as a sentencing option for juvenile offenders and extended parole eligibility to juvenile
offenders. Citing the FSMA, the circuit court “discontinued” the resentencing hearing. In
an amended sentencing order entered on June 1, 2017, the circuit court sentenced Scherrer
to life imprisonment with the possibility of parole after thirty years, pursuant to the FSMA.
On July 7, 2017, Scherrer filed a pro se motion to vacate the amended sentencing
order arguing that (1) the circuit court could not amend his sentence under the FSMA
because it had been vacated by the habeas order, (2) he was entitled to a resentencing hearing
as a matter of fundamental fairness and evenhanded justice, and (3) the application of the
FSMA to his sentence was unconstitutional because it was ex post facto legislation. The
State responded and asserted that the FSMA remedied the Miller violation by retroactively
extending parole eligibility to juvenile offenders. In an order entered on November 13,
2017, the circuit court found that it lacked jurisdiction to rule on Scherrer’s motion to
vacate because, as a posttrial motion under Arkansas Rule of Criminal Procedure 33.3(c),
the motion had already been deemed denied.
Scherrer appealed the circuit court’s order. In his pro se brief on appeal, however,
he asserts that the circuit court lacked jurisdiction to rule on his motion to vacate and that
his “attempt to have his illegal amended sentence vacated was doomed from the start.” In
any event, this court may address the issue of an illegal sentence sua sponte. See Harness v.
3 State, 352 Ark. 335, 339, 101 S.W.3d 235, 238 (2003) (noting that we treat problems of
void or illegal sentences like problems of subject-matter jurisdiction and review them even
if not raised on appeal). A sentence is void or illegal when the circuit court lacks the
authority to impose it. Cross v. State, 2009 Ark. 597, 357 S.W.3d 895. The question in this
case is whether the circuit court had the authority to sentence Scherrer under the FSMA.
In Harris, 2018 Ark. 179, 547 S.W.3d 64, a juvenile offender convicted of capital
murder challenged the application of the FSMA to his case. Harris committed his crime in
1996, when he was fifteen years old; the circuit court vacated his mandatory sentence of life
without parole in 2016; and a resentencing hearing was set for May 2017. We concluded
that the FSMA did not apply to Harris, holding in relevant part that (1) the revised
punishment for juveniles convicted of capital murder—life imprisonment with the
possibility of parole after thirty years—is not retroactive and applies only to crimes
committed on or after March 20, 2017, the effective date of the FSMA; (2) the parole-
eligibility provisions of the FSMA did not apply to Harris at the time of his resentencing
hearing because his sentence had been vacated, and he was no longer serving a sentence to
which parole eligibility could attach; and (3) Harris was entitled to a hearing to present Miller
evidence for consideration and sentencing within the discretionary range for a Class Y
felony, which is ten to forty years or life.
The facts in Scherrer’s case are analogous to the facts in Harris. Scherrer, like Harris,
committed his crime before the effective date of the FSMA; therefore, the penalty provisions
of the FSMA do not apply to him. Likewise, the parole-eligibility provision does not apply
to Scherrer. His sentence, like Harris’s sentence, had already been vacated at the time of his
4 resentencing, and he was no longer serving a sentence to which parole eligibility could
attach.
Pursuant to our decision in Harris, we hold that the circuit court lacked the authority
to sentence Scherrer under the FSMA. Scherrer is entitled to a hearing to present Miller
evidence for consideration and sentencing within the discretionary range for a Class Y
felony, which is ten to forty years or life. See Ark. Code Ann. § 5-4-401(a) (Repl. 2013);
Harris, 2018 Ark. 179, 547 S.W.3d 64; Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906;
see also Elliott v. State, 2019 Ark. 162; Williams v. State, 2019 Ark. 96; Miller v. State, 2019
Ark. 81, 570 S.W.3d 448; Howell v. State, 2019 Ark. 59, 567 S.W.3d 842; Ray v. State, 2019
Ark. 46, 567 S.W.3d 63; Segerstrom v. State, 2019 Ark. 36, 566 S.W.3d 466; and Robinson
v. State, 2018 Ark. 353, 563 S.W.3d 530 (holding that the circuit court erred in applying
the FSMA to the juvenile offender’s case and ordering resentencing pursuant to Harris).
WOOD and WYNNE, JJ., concur.
WOMACK, J., dissents.
RHONDA K. WOOD, Justice, concurring. I concur for the reasons set forth in
my concurring opinion in Robinson v. State, 2018 Ark. 353, 563 S.W.3d 530 (Wood, J.,
concurring).
ROBIN F. WYNNE, Justice, concurring. I concur for the reasons set forth in my
concurring opinion in Harris v. State, 2018 Ark. 179, 547 S.W.3d 64.
SHAWN A. WOMACK, Justice, dissenting. I dissent for the reasons set forth in my
dissenting opinion in Harris v. State, 2018 Ark. 179, 547 S.W.3d 64.
5 Jimmy Scherrer, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.