Cite as 2023 Ark. 37 SUPREME COURT OF ARKANSAS No. CR-22-571
Opinion Delivered: March 9, 2023 NICKOL CARTER APPELLANT PRO SE APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRD V. DIVISION [NO. 60CR-09-564]
STATE OF ARKANSAS HONORABLE CATHLEEN V. APPELLEE COMPTON, JUDGE
AFFIRMED.
SHAWN A. WOMACK, Associate Justice
Appellant Nickol Carter appeals from the trial court’s denial of his pro se petition to
correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl.
2016). On appeal, Carter argues that (1) his sentences were facially illegal because they were
enhanced in violation of Blakely v. Washington, 542 U.S. 296 (2004), Apprendi v. New Jersey,
530 U.S. 466 (2000), and Arkansas’s sentencing guidelines; (2) Arkansas Code Annotated
section 16-90-804 is unconstitutional on the basis of this court’s holding in Muhammad v.
State, 2021 Ark. 129, 624 S.W.3d 300; and (3) his sentence is illegal on its face because he
was impermissibly sentenced to a suspended imposition of sentence as a habitual offender.
Because none of the allegations raised by Carter establish that his sentence was facially illegal,
we affirm the trial court’s order denying relief. I. Background
On December 11, 2009, Carter entered a plea of guilty to four counts of aggravated
robbery, four counts of being a felon in possession of a firearm, and one count of robbery.
He was sentenced as a habitual offender to 420 months’ imprisonment and 180 months’
suspended imposition of sentence (SIS) for each count of aggravated robbery, to 120 months’
imprisonment for each felon-in-possession-of-a-firearm count, and 120 months’
imprisonment for the robbery. All the terms of imprisonment were to be served concurrently
for an aggregate term of 420 months’ imprisonment.
On March 11, 2010, Carter filed in the trial court a pro se petition for postconviction
relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010) and a pro se petition
for reduction of sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl.
2003). The trial court denied the Rule 37.1 petition, finding that Carter had earlier filed a
motion to withdraw the guilty plea that had been treated as a petition under Rule 37.1, and
he was not entitled to file a second Rule 37.1 petition. The court also denied the section 16-
90-111 petition, holding that it had already denied postconviction relief under Rule 37.1
and that it did not have jurisdiction to modify the sentence. After Carter filed a motion
seeking to modify the order that denied the section 16-90-111 petition, this court dismissed
his appeal from the trial court’s denial of his request to modify the section 16-90-111
petition. Carter v. State, 2010 Ark. 349 (per curiam).
Carter subsequently filed a petition for writ of error coram nobis in the trial court,
contending he was subjected to a Brady violation, and that his plea was coerced. Brady v.
2 Maryland, 373 U.S. 83 (1963). The trial court denied the petition. After lodging the appeal
in this court and seeking photocopies at public expense and an extension of time, we
dismissed the appeal, finding it was clear that Carter could not prevail if the appeal were
allowed to proceed, and the trial court had not abused its discretion in denying his petition
for writ of error coram nobis. Carter v. State, 2012 Ark. 186 (per curiam).
II. Standard of Review
The trial court’s decision to deny relief pursuant to section 16-90-111 will not be
overturned unless that decision is clearly erroneous. Manuel v. State, 2022 Ark. 117. 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. Millsap v. State, 2020 Ark. 38.
III. Arkansas Code Annotated Section 16-90-111
Section 16-90-111(a) gives a trial court authority 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 trial
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. Id. The petitioner seeking relief under
section 16-90-111(a) must demonstrate that his or her 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 54. A trial court has subject-matter
jurisdiction to hear and determine cases involving violations of criminal statutes, and
3 typically, trial error does not implicate the jurisdiction of the trial court or, as a consequence,
implicate the facial validity of the judgment. Id.
IV. Claims for Relief
For the first time on appeal, Carter argues that Arkansas Code Annotated section 16-
90-804 (Repl. 2006) is rendered unconstitutional based on this court’s holding in
Muhammad, 2021 Ark. 129, 624 S.W.3d 300,1 and that his sentence is illegal because he was
not eligible for a suspended sentence due to his status as a habitual offender. Arguably,
Carter raised these claims in a supplemental brief and a second supplemental petition after
his original section 16-90-111 petition was filed in the trial court. However, the trial court
never made a ruling regarding the arguments raised in those pleadings. This court has
consistently held that arguments raised for the first time on appeal will not be considered,
and even constitutional arguments must be raised in the trial court and ruled on in order to
preserve the issues for appellate review. Muhammad, 2021 Ark. 129, 624 S.W.3d 300;
Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491.
1 Carter’s constitutionality claim regarding section 16-90-804 and the procedures involved with a departure and sentencing procedure were raised in Carter’s original petition without reference to Muhammad, and the claim itself is discussed infra. With respect to his claim that “running suspended sentences consecutive to each of the other charges made the sentences illegal” on the basis of the holding in Muhammad, the claim is not preserved for appeal. Notwithstanding Carter’s misunderstanding of the holding in Muhammad, the circumstances in Muhammad are not applicable to Carter’s case, as he was not sentenced to suspended sentences to run consecutively to terms of imprisonment imposed for separate offenses; and the term of his suspended sentences, when combined with the period of imprisonment, did not exceed the statutory maximum for the offense. See Muhammad, 2021 Ark. 129, at 6–7, 624 S.W.3d at 305. 4 Carter contends on appeal, as he did below, that a durational departure occurred and
that when such a departure occurs, the reasoning for the departure must be clearly stated on
the record. Essentially, he contends that there were no reasons given for the durational
departure, which makes the sentencing order invalid as to all counts and the sentences
facially illegal pursuant to Blakely and Apprendi.
A claim that a sentence exceeds the presumptive sentence goes behind the face of the
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Cite as 2023 Ark. 37 SUPREME COURT OF ARKANSAS No. CR-22-571
Opinion Delivered: March 9, 2023 NICKOL CARTER APPELLANT PRO SE APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRD V. DIVISION [NO. 60CR-09-564]
STATE OF ARKANSAS HONORABLE CATHLEEN V. APPELLEE COMPTON, JUDGE
AFFIRMED.
SHAWN A. WOMACK, Associate Justice
Appellant Nickol Carter appeals from the trial court’s denial of his pro se petition to
correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl.
2016). On appeal, Carter argues that (1) his sentences were facially illegal because they were
enhanced in violation of Blakely v. Washington, 542 U.S. 296 (2004), Apprendi v. New Jersey,
530 U.S. 466 (2000), and Arkansas’s sentencing guidelines; (2) Arkansas Code Annotated
section 16-90-804 is unconstitutional on the basis of this court’s holding in Muhammad v.
State, 2021 Ark. 129, 624 S.W.3d 300; and (3) his sentence is illegal on its face because he
was impermissibly sentenced to a suspended imposition of sentence as a habitual offender.
Because none of the allegations raised by Carter establish that his sentence was facially illegal,
we affirm the trial court’s order denying relief. I. Background
On December 11, 2009, Carter entered a plea of guilty to four counts of aggravated
robbery, four counts of being a felon in possession of a firearm, and one count of robbery.
He was sentenced as a habitual offender to 420 months’ imprisonment and 180 months’
suspended imposition of sentence (SIS) for each count of aggravated robbery, to 120 months’
imprisonment for each felon-in-possession-of-a-firearm count, and 120 months’
imprisonment for the robbery. All the terms of imprisonment were to be served concurrently
for an aggregate term of 420 months’ imprisonment.
On March 11, 2010, Carter filed in the trial court a pro se petition for postconviction
relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010) and a pro se petition
for reduction of sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl.
2003). The trial court denied the Rule 37.1 petition, finding that Carter had earlier filed a
motion to withdraw the guilty plea that had been treated as a petition under Rule 37.1, and
he was not entitled to file a second Rule 37.1 petition. The court also denied the section 16-
90-111 petition, holding that it had already denied postconviction relief under Rule 37.1
and that it did not have jurisdiction to modify the sentence. After Carter filed a motion
seeking to modify the order that denied the section 16-90-111 petition, this court dismissed
his appeal from the trial court’s denial of his request to modify the section 16-90-111
petition. Carter v. State, 2010 Ark. 349 (per curiam).
Carter subsequently filed a petition for writ of error coram nobis in the trial court,
contending he was subjected to a Brady violation, and that his plea was coerced. Brady v.
2 Maryland, 373 U.S. 83 (1963). The trial court denied the petition. After lodging the appeal
in this court and seeking photocopies at public expense and an extension of time, we
dismissed the appeal, finding it was clear that Carter could not prevail if the appeal were
allowed to proceed, and the trial court had not abused its discretion in denying his petition
for writ of error coram nobis. Carter v. State, 2012 Ark. 186 (per curiam).
II. Standard of Review
The trial court’s decision to deny relief pursuant to section 16-90-111 will not be
overturned unless that decision is clearly erroneous. Manuel v. State, 2022 Ark. 117. 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. Millsap v. State, 2020 Ark. 38.
III. Arkansas Code Annotated Section 16-90-111
Section 16-90-111(a) gives a trial court authority 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 trial
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. Id. The petitioner seeking relief under
section 16-90-111(a) must demonstrate that his or her 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 54. A trial court has subject-matter
jurisdiction to hear and determine cases involving violations of criminal statutes, and
3 typically, trial error does not implicate the jurisdiction of the trial court or, as a consequence,
implicate the facial validity of the judgment. Id.
IV. Claims for Relief
For the first time on appeal, Carter argues that Arkansas Code Annotated section 16-
90-804 (Repl. 2006) is rendered unconstitutional based on this court’s holding in
Muhammad, 2021 Ark. 129, 624 S.W.3d 300,1 and that his sentence is illegal because he was
not eligible for a suspended sentence due to his status as a habitual offender. Arguably,
Carter raised these claims in a supplemental brief and a second supplemental petition after
his original section 16-90-111 petition was filed in the trial court. However, the trial court
never made a ruling regarding the arguments raised in those pleadings. This court has
consistently held that arguments raised for the first time on appeal will not be considered,
and even constitutional arguments must be raised in the trial court and ruled on in order to
preserve the issues for appellate review. Muhammad, 2021 Ark. 129, 624 S.W.3d 300;
Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491.
1 Carter’s constitutionality claim regarding section 16-90-804 and the procedures involved with a departure and sentencing procedure were raised in Carter’s original petition without reference to Muhammad, and the claim itself is discussed infra. With respect to his claim that “running suspended sentences consecutive to each of the other charges made the sentences illegal” on the basis of the holding in Muhammad, the claim is not preserved for appeal. Notwithstanding Carter’s misunderstanding of the holding in Muhammad, the circumstances in Muhammad are not applicable to Carter’s case, as he was not sentenced to suspended sentences to run consecutively to terms of imprisonment imposed for separate offenses; and the term of his suspended sentences, when combined with the period of imprisonment, did not exceed the statutory maximum for the offense. See Muhammad, 2021 Ark. 129, at 6–7, 624 S.W.3d at 305. 4 Carter contends on appeal, as he did below, that a durational departure occurred and
that when such a departure occurs, the reasoning for the departure must be clearly stated on
the record. Essentially, he contends that there were no reasons given for the durational
departure, which makes the sentencing order invalid as to all counts and the sentences
facially illegal pursuant to Blakely and Apprendi.
A claim that a sentence exceeds the presumptive sentence goes behind the face of the
judgment and does not implicate the facial validity of the judgment. Hall v. State, 2022 Ark.
16, 638 S.W.3d 270. Rather, it is a claim that the sentence was imposed in an illegal manner
and is therefore governed by the time limitations set out in Arkansas Rule of Criminal
Procedure 37.2(c). Manuel, 2022 Ark. 117.
Carter further argues that Arkansas Code Annotated section 16-90-804 affords him
an opportunity to argue against the upward departure, and because the plea and sentencing
take place “usually within minutes of each other[,]” the procedure does not comport with
Arkansas law. Moreover, Carter contends that section 16-90-804 contains discretionary
language regarding when departure hearings may occur, which “violates the mandatory
language in the reasoning and holding of Blakely and Apprendi,” making section 16-90-804
unconstitutional. In support of his claim, he argues that his plea statement and hearing did
not constitute an explicit waiver or stipulation as required by Blakely and Apprendi because
those cases require that he specifically state that he wanted the trial court to decide all the
matters—including departures and enhancements—and that he was specifically waiving
sentencing by a jury. In the same vein, Carter further contends that he was not advised by
5 the trial court that he could seek sentencing by the jury pursuant to Arkansas Code
Annotated section 16-97-101(6) (Repl. 2006) and that since the language in section 16-97-
101 is discretionary in contravention of Blakely and Apprendi, it is also unconstitutional. As
with his previous argument, Carter’s claims go behind the face of the judgment and do not
implicate the facial validity of the judgment. Manuel, 2022 Ark. 117. Although he couches
his claims as challenges to the constitutionality of sections 16-90-804 and 16-97-101 with
respect to Blakely and Apprendi, Carter’s claims, at best, amount to an allegation that his
sentence was illegally imposed. Id.
Notwithstanding his claims to the contrary, Carter’s judgment is not illegal on its
face. He was sentenced as a habitual offender pursuant to Arkansas Code Annotated section
5-4-501(a) (Supp. 2009). Aggravated robbery, a Class Y felony, is subject to a term of not less
than ten years nor more than sixty years, or life. Ark. Code Ann. § 5-4-501(a)(2)(A). Robbery
and being a felon in possession of a firearm, both Class B felonies, are subject to a term of
not less than five years nor more than thirty years. Ark. Code Ann. § 5-4-501(a)(2)(C). Carter
was sentenced to 420 months’ or 35 years’ imprisonment and 180 months’ or 15 years’ SIS
for each count of Class Y felony aggravated robbery, well within the statutory maximum
subject to the habitual-offender enhancement.2 He was also sentenced to 120 months’ or 10
2 While a trial court can impose a suspended sentence for up to the maximum term of imprisonment allowed, when the suspended sentence is combined with a period of imprisonment, the total period of imprisonment is subject to the limitations imposed by the relevant statutory maximums set forth in sections 5-4-401 and -501. Muhammad, 2021 Ark. 129, 624 S.W.3d 300. Here, the total sentence imposed for each count of aggravated robbery, including the suspended sentence, was fifty years to be served concurrently. 6 years’ imprisonment on each of the Class B felony convictions—also well within the statutory
maximum of thirty years with the habitual-offender enhancement. Carter is not entitled to
relief to correct an illegal sentence because his sentences are not illegal. See Swift v. State,
2018 Ark. 74, 540 S.W.3d 288.
Nickol Carter, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.