Kelley v. State

2015 Ark. 486

• Court: Supreme Court of Arkansas
• Decided: December 17, 2015
• Docket: CV-15-249
• Status: Published

Opinion

Cite as 2015 Ark. 486

SUPREME COURT OF ARKANSAS. No. CV-15-249

BILLY JOE KELLEY Opinion Delivered December 17, 2015 APPELLANT PRO SE APPEAL FROM THE LEE COUNTY V. CIRCUIT COURT [NO. 39CV-14-102] STATE OF ARKANSAS APPELLEE HONORABLE RICHARD L. PROCTOR, JUDGE

AFFIRMED.

PER CURIAM

Appellant Billy Joe Kelley is an inmate incarcerated in a unit of the Arkansas

Department of Correction situated in Lee County.1 Kelley filed a petition for writ of habeas

corpus in the Lee County Circuit Court, and the court denied relief. Kelley appeals, and we

affirm the order denying the habeas petition.

In his habeas petition, Kelley challenged a 2008 judgment in the Pulaski County Circuit

Court reflecting his conviction on a rape charge. The judgment imposed a life sentence.

Kelley contended that the sentence imposed was illegal in that he was sentenced as a habitual

offender under Arkansas Code Annotated section 5-4-501(c) (Repl. 2006) without notice of

the habitual-offender charge. The order denying the petition indicated that it was Kelley’s

burden to establish a lack of jurisdiction by the trial court or that the commitment was invalid

1 Kelley, as of the date of this opinion, remains incarcerated in Lee County. Cite as 2015 Ark. 486

on its face, that conclusory allegations are not sufficient to establish grounds for the writ, and

that the petition lacked sufficient merit to justify the relief sought.

A circuit court’s grant or denial of habeas relief will not be reversed unless the court’s

findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A finding is

clearly erroneous when, although there is evidence to support it, the appellate court is left,

after reviewing the entire evidence, with the definite and firm conviction that a mistake has

been committed. Id.

Under our statute, a petitioner for the writ who does not allege his actual innocence

and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity

of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit

or other evidence of probable cause to believe that he is illegally detained. Ark. Code Ann. §

16-112-103(a)(1) (Repl. 2006). The burden is on the petitioner in proceedings for a writ of

habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was

invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should

issue. Fields v. Hobbs, 2013 Ark. 416.

Kelley asserts on appeal that the circuit court incorrectly concluded that he had made

conclusory statements, he reasserts his arguments that his right to due process was violated

when he was not given notice of the habitual-offender charge, and he avers that he provided

a sufficient basis to establish probable cause to demonstrate that he was illegally detained. We

affirm the decision to deny relief because the circuit court correctly determined that Kelley

failed to provide a meritorious ground for relief.

2 Cite as 2015 Ark. 486

Kelley did not invoke Act 1780, and, as noted, he must have demonstrated in the

petition that the trial court lacked jurisdiction or that the commitment was invalid on its face

in order to establish grounds for the writ. Because Kelley failed to allege that his sentence

would have fallen outside the sentence range for rape without the sentence enhancement for

a habitual offender, his claim that he was charged and sentenced as a habitual offender without

proper notice is not a cognizable claim for habeas relief. See Christopher v. Hobbs, 2011 Ark.

399 (per curiam). Rape is a Class Y felony, and, under Arkansas Code Annotated section 5-4-

401(a), it is punishable by a life sentence. See Ark. Code Ann. § 5-14-103(c)(1).

Kelley’s argument was that this sentence was illegal in that he did not receive adequate

notice of the habitual-offender charge because the provision of Arkansas Code Annotated

section 5-4-501 noted on the judgment as the basis for the charge was not one of the two

subsections of the statute that had been alleged in the information. A felony information

containing general language referring to the habitual-offender statute, however, is sufficient to

put the defendant on notice that his prior convictions may be introduced in assessing an

enhanced sentence. Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203.

Despite Kelley’s characterization of his claim as one concerning an illegal sentence, the

basis for the claim, that the information did not provide sufficient information to identify the

crime, only raised trial error of the type that is not cognizable in a habeas proceeding. See

Sanders v. Straughn, 2014 Ark. 312, 439 S.W.3d 1 (per curiam). Where a court has jurisdiction

over the appellant’s person and the criminal matter, the court is not divested of jurisdiction by

a trial error that may be appealed, and the error does not provide a basis for issuance of the

writ. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990).

3 Cite as 2015 Ark. 486

Kelley stated no facts adequate to support his claim that he did not receive adequate

notice. His allegations of due-process violations are not cognizable issues in a proceeding for

the writ. His claim of an illegal sentence fails because his sentence was within the permitted

range for the charge. Kelley demonstrated no error in the circuit court’s holding that he did

not provide meritorious grounds for the writ in his petition. We accordingly affirm the denial

of relief.

Billy Joe Kelley, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.