Michael Osburn v. Michelle Gray, Warden

2022 Ark. 39, 639 S.W.3d 346

• Court: Supreme Court of Arkansas
• Decided: February 17, 2022
• Status: Published

Opinion

Cite as 2022 Ark. 39 SUPREME COURT OF ARKANSAS No. CV-21-294

Opinion Delivered: February 17, 2022 MICHAEL OSBURN APPELLANT PRO SE APPEAL FROM THE JEFFERSON COUNTY CIRCUIT V. COURT [NO. 35CV-21-129]

MICHELLE GRAY, WARDEN HONORABLE JODI RAINES DENNIS, APPELLEE JUDGE

AFFIRMED.

SHAWN A. WOMACK, Associate Justice

Michael Osburn appeals the circuit court’s dismissal of his pro se petition for a writ

of habeas corpus filed pursuant to Arkansas Code Annotated sections 16-112-101 to -123

(Repl. 2016). Osburn alleged that his conviction is void because his two consecutive

sentences for twenty-nine counts of possessing matter depicting sexually explicit images of a

child exceeded the maximum statutory sentence for a Class C felony. The circuit court

denied the claim and found that the first charge of possessing sexually explicit images of

children was a Class C felony, but the subsequent twenty-nine charges for the same offense

were Class B felonies. Because Osburn was convicted of possessing multiple photographs of

sexually explicit images of children, we affirm.

I. Background In October 2019, Osburn pled guilty to the following offenses: one count of

possession and distribution of sexually explicit images of children; ten counts of possession

and distribution of sexually explicit images of children; nineteen counts of possession and

distribution of sexually explicit images of children; two counts of failure to register as a sex

offender; and three counts of fourth-degree sexual assault.1 Osburn was sentenced to

consecutive terms of 120 months’ imprisonment for one count of possession of a sexually

explicit image of a child, 240 months’ imprisonment for possession of ten sexually explicit

images of children, and 240 months’ imprisonment for possession of nineteen sexually

explicit images of children. The sentences for the remaining charges set forth above were

imposed concurrently.

The circuit court denied the habeas petition on the basis that the information charged

Osburn with one Class C felony and with twenty-nine Class B felonies for the subsequent

offenses in compliance with Arkansas Code Annotated section 5-27-602(b) (Repl. 2013),

which states in pertinent part that subsequent offenses of distributing and possessing matter

depicting sexually explicit images of children are classified as Class B felonies. The

information is not in the record, and the sentencing order reflects convictions for thirty

Class C felonies. For the following reasons, Osburn’s order of conviction is legal on its face

due to the multiple counts reflected therein.

II. Standard of Review

1 Osburn’s probation was revoked for the 2015 conviction of fourth-degree sexual assault under case number 69CR-15-109.

2 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

committed. Id.

III. Nature of the Writ

A writ of habeas corpus is proper when a judgment of conviction is invalid on its face

or when a trial court lacks jurisdiction over the cause. Philyaw v. Kelley, 2015 Ark. 465, 477

S.W.3d 503. Jurisdiction is the power of the court to hear and determine the subject matter

in controversy. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). A trial court has

subject-matter jurisdiction to hear and determine cases involving violations of criminal

statutes. Id. Unless the petitioner can show that the trial court lacked jurisdiction or that the

commitment was invalid on its face, there is no basis for a finding that a writ of habeas

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

This court views an issue of a void or illegal sentence as one of subject-matter

jurisdiction. Johnson v. Kelley, 2019 Ark. 230, 577 S.W.3d 710. A sentence is void or illegal

when the trial court lacks authority to impose it. Id. In Arkansas, sentencing is entirely a

matter of statute, and this court has consistently held that sentencing shall not be other than

in accordance with the statute in effect at the time of the commission of the crime. Id. When

the law does not authorize the particular sentence pronounced by a trial court, that sentence

is unauthorized and illegal. Id.

3 IV. Claims for Relief

Osburn alleges that the two consecutive sentences of 240 months’ imprisonment are

illegal as they exceed the maximum penalty for Class C felonies of 120 months. See Ark.

Code Ann. § 5-4-401 (Repl. 2013). Osburn ignores the fact that he pled guilty to multiple

counts of possessing sexually explicit images of children in violation of section 5-27-602(a).

This court has held that by enacting section 5-27-602(a), the General Assembly

intended that each act of possession is a discrete and independent offense; therefore, the

statute authorizes separate convictions for each prohibited image. Rea v. State, 2015 Ark.

431, 474 S.W.3d 493. In other words, the legislature intended the number of offenses to

correlate with the number of photographs, not the activity undertaken with the photographs.

Id. Each photograph that is distributed in violation of section 5-27-602(a)(1) can support a

separate charge. Pelletier v. Kelley, 2018 Ark. 347, 561 S.W.3d 730. In view of this, Osburn’s

sentence of 240 months’ imprisonment each for ten counts and nineteen counts of

possession of matter depicting sexually explicit images of children did not exceed the

maximum penalty for those offenses because Osburn was subject to a penalty of 120 months

for each of the twenty-nine separate counts of possessing those images.

Michael Osburn, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.