Reason: I attest to the accuracy Cite as 2021 Ark. 177 and integrity of this document Date: 2022.06.13 15:53:17 -05'00' Adobe Acrobat version: SUPREME COURT OF ARKANSAS 2022.001.20117 No. CR-21-62
Opinion Delivered: October 14, 2021 OSCAR WILLINGHAM APPELLANT PRO SE APPEAL FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CR-11-151] V. HONORABLE CHARLES A. STATE OF ARKANSAS YEARGAN, JUDGE APPELLEE REVERSED AND REMANDED TO CORRECT SENTENCING ORDER.
COURTNEY RAE HUDSON, Associate Justice
Appellant, Oscar Willingham, appeals from the circuit court’s denial of his pro se
petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-
111 (Repl. 2016). For reversal, Willingham asserts that (1) the sentencing order entered in
his case was illegal on its face in that the sentence imposed for theft of property exceeded
the statutory maximum for a Class D felony, and (2) the order further reflected that he was
convicted as a habitual offender even though the prosecution agreed to dismiss the habitual-
offender charges. We reverse and remand to the circuit court.
On October 22, 2012, Willingham pled guilty to one count of aggravated residential
burglary, one count of aggravated robbery, one count of kidnapping, and one count of theft
of property. The plea-hearing transcript that is part of this record reflects that pursuant to
the negotiated plea deal, the prosecution agreed to withdraw the habitual-offender charges
against Willingham. The plea-hearing transcript further demonstrates that Willingham was advised that he had agreed to plead guilty to two Class Y felonies for aggravated residential
burglary and aggravated robbery and two Class B felonies for kidnapping and theft of
property. Willingham was sentenced to 288 months’ or 24 years’ imprisonment for
aggravated residential burglary, 120 months’ or 10 years’ imprisonment for aggravated
robbery, 240 months’ or 20 years’ suspended imposition of sentence for kidnapping, and
240 months’ or 20 years’ imprisonment for theft of property, for an aggregate sentence of
648 months’ or 54 years’ imprisonment.
When Willingham committed the offenses, Arkansas Code Annotated section 5-36-
103(b)(3)(A) (Supp. 2011) defined a Class D theft-of-property offense as theft of property
valued between $1,000 and $5,000. Theft of property was a Class B offense if the property
was obtained by threat. Ark. Code Ann. § 5-36-103(b)(1)(B). Pursuant to Arkansas Code
Annotated section 5-4-401(a)(5) (Repl. 2006), a Class D felony carried a maximum sentence
of six years’ imprisonment. A Class B felony was punishable by five to twenty years in
prison. Ark. Code Ann. § 5-4-401(a)(3).
The original 2012 sentencing order reflects that Willingham committed the offenses
in September 2011 and that he was convicted as a habitual offender in contravention of the
plea agreement. Furthermore, the sentencing order indicates that Willingham’s theft-of-
property offense was based on the value of the property––more than $1,000 and less than
$5,000––in violation of Arkansas Code Annotated section 5-36-103(b)(3)(A). Finally, the
order classified the theft-of-property offense as a Class D offense.
On July 15, 2020, Willingham filed his first petition to correct an illegal sentence
alleging that his sentence exceeded the penalty for a Class D felony. In response to the
2 petition, the circuit court entered an amended sentencing order nunc pro tunc in July 2020
that designated the theft offense as a Class B felony but did not change the description of
the offense or the code section that supported a conviction for a Class B felony. Willingham
filed a second petition in November 2020 again challenging his theft-of-property sentence
and additionally alleging that the order incorrectly reflected that he had been convicted as a
habitual offender––charges that had been withdrawn by the prosecution. The circuit court
subsequently denied Willingham’s petition on the basis that an amended order had been
entered in the case. Willingham filed a timely notice of appeal.
The circuit court’s decision to deny relief pursuant to section 16-90-111 will not be
overturned unless that decision is clearly erroneous. Millsap v. State, 2020 Ark. 38. 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. Id.
Section 16-90-111(a) provides authority to a circuit court 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. Jackson v. State, 2018 Ark. 209, 549 S.W.3d 346. A sentence is
illegal on its face when it is void because it is beyond the circuit 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. Fischer v. State, 2017 Ark. 338, 532 S.W.3d 40. The petitioner seeking
relief under section 16-90-111(a) carries the burden of demonstrating that his or her
sentence was illegal. Redus, 2019 Ark. 44, 566 S.W.3d 469. The general rule is that a
sentence imposed within the maximum term prescribed by law is not illegal on its face.
3 McArty v. State, 2020 Ark. 68, 594 S.W.3d 54. A circuit court has subject-matter jurisdiction
to hear and determine cases involving violations of criminal statutes, and typically, trial error
does not implicate the jurisdiction of the circuit court or, as a consequence, implicate the
facial validity of the judgment. Id.
Willingham first alleged in his petition filed in the circuit court and in his argument
on appeal that his sentence for theft of property exceeded the maximum for a Class D felony
as described in the sentencing order. A circuit court has the power to correct clerical errors
nunc pro tunc so that the record speaks the truth. Barnett v. State, 2020 Ark. 181, 598
S.W.3d 835. Pursuant to Rule 60(b) of the Arkansas Rules of Civil Procedure, a circuit
court may at any time correct clerical mistakes in judgments, decrees, orders, or other parts
of the record and errors therein arising from oversight or omission. Id. A circuit court’s
power to correct mistakes or errors is to make the record speak the truth, but not to make
it speak what it did not speak but ought to have spoken. State v. Rowe, 374 Ark. 19, 285
S.W.3d 614 (2008).
Here, the record demonstrates that the information charged Willingham with theft
of property valued between $1,000 and $5,000. However, the information additionally
charged Willingham for committing the theft “with the purpose of depriving the owner of
the property by threat of serious physical injury.” The information further designates the
theft charge as a Class B felony that was properly designated as such in accordance with
section 5-36-103(b)(1)(B), which states in pertinent part that theft of property is classified as
a Class B felony if the property is obtained by threat of serious injury. Moreover, the
transcript of the plea hearing reveals that Willingham had been advised that he was being
4 charged with a Class B felony, which carried a maximum term of imprisonment of twenty
years for the theft-of-property offense; and following Willingham’s plea, the court
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Reason: I attest to the accuracy Cite as 2021 Ark. 177 and integrity of this document Date: 2022.06.13 15:53:17 -05'00' Adobe Acrobat version: SUPREME COURT OF ARKANSAS 2022.001.20117 No. CR-21-62
Opinion Delivered: October 14, 2021 OSCAR WILLINGHAM APPELLANT PRO SE APPEAL FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CR-11-151] V. HONORABLE CHARLES A. STATE OF ARKANSAS YEARGAN, JUDGE APPELLEE REVERSED AND REMANDED TO CORRECT SENTENCING ORDER.
COURTNEY RAE HUDSON, Associate Justice
Appellant, Oscar Willingham, appeals from the circuit court’s denial of his pro se
petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-
111 (Repl. 2016). For reversal, Willingham asserts that (1) the sentencing order entered in
his case was illegal on its face in that the sentence imposed for theft of property exceeded
the statutory maximum for a Class D felony, and (2) the order further reflected that he was
convicted as a habitual offender even though the prosecution agreed to dismiss the habitual-
offender charges. We reverse and remand to the circuit court.
On October 22, 2012, Willingham pled guilty to one count of aggravated residential
burglary, one count of aggravated robbery, one count of kidnapping, and one count of theft
of property. The plea-hearing transcript that is part of this record reflects that pursuant to
the negotiated plea deal, the prosecution agreed to withdraw the habitual-offender charges
against Willingham. The plea-hearing transcript further demonstrates that Willingham was advised that he had agreed to plead guilty to two Class Y felonies for aggravated residential
burglary and aggravated robbery and two Class B felonies for kidnapping and theft of
property. Willingham was sentenced to 288 months’ or 24 years’ imprisonment for
aggravated residential burglary, 120 months’ or 10 years’ imprisonment for aggravated
robbery, 240 months’ or 20 years’ suspended imposition of sentence for kidnapping, and
240 months’ or 20 years’ imprisonment for theft of property, for an aggregate sentence of
648 months’ or 54 years’ imprisonment.
When Willingham committed the offenses, Arkansas Code Annotated section 5-36-
103(b)(3)(A) (Supp. 2011) defined a Class D theft-of-property offense as theft of property
valued between $1,000 and $5,000. Theft of property was a Class B offense if the property
was obtained by threat. Ark. Code Ann. § 5-36-103(b)(1)(B). Pursuant to Arkansas Code
Annotated section 5-4-401(a)(5) (Repl. 2006), a Class D felony carried a maximum sentence
of six years’ imprisonment. A Class B felony was punishable by five to twenty years in
prison. Ark. Code Ann. § 5-4-401(a)(3).
The original 2012 sentencing order reflects that Willingham committed the offenses
in September 2011 and that he was convicted as a habitual offender in contravention of the
plea agreement. Furthermore, the sentencing order indicates that Willingham’s theft-of-
property offense was based on the value of the property––more than $1,000 and less than
$5,000––in violation of Arkansas Code Annotated section 5-36-103(b)(3)(A). Finally, the
order classified the theft-of-property offense as a Class D offense.
On July 15, 2020, Willingham filed his first petition to correct an illegal sentence
alleging that his sentence exceeded the penalty for a Class D felony. In response to the
2 petition, the circuit court entered an amended sentencing order nunc pro tunc in July 2020
that designated the theft offense as a Class B felony but did not change the description of
the offense or the code section that supported a conviction for a Class B felony. Willingham
filed a second petition in November 2020 again challenging his theft-of-property sentence
and additionally alleging that the order incorrectly reflected that he had been convicted as a
habitual offender––charges that had been withdrawn by the prosecution. The circuit court
subsequently denied Willingham’s petition on the basis that an amended order had been
entered in the case. Willingham filed a timely notice of appeal.
The circuit court’s decision to deny relief pursuant to section 16-90-111 will not be
overturned unless that decision is clearly erroneous. Millsap v. State, 2020 Ark. 38. 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. Id.
Section 16-90-111(a) provides authority to a circuit court 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. Jackson v. State, 2018 Ark. 209, 549 S.W.3d 346. A sentence is
illegal on its face when it is void because it is beyond the circuit 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. Fischer v. State, 2017 Ark. 338, 532 S.W.3d 40. The petitioner seeking
relief under section 16-90-111(a) carries the burden of demonstrating that his or her
sentence was illegal. Redus, 2019 Ark. 44, 566 S.W.3d 469. The general rule is that a
sentence imposed within the maximum term prescribed by law is not illegal on its face.
3 McArty v. State, 2020 Ark. 68, 594 S.W.3d 54. A circuit court has subject-matter jurisdiction
to hear and determine cases involving violations of criminal statutes, and typically, trial error
does not implicate the jurisdiction of the circuit court or, as a consequence, implicate the
facial validity of the judgment. Id.
Willingham first alleged in his petition filed in the circuit court and in his argument
on appeal that his sentence for theft of property exceeded the maximum for a Class D felony
as described in the sentencing order. A circuit court has the power to correct clerical errors
nunc pro tunc so that the record speaks the truth. Barnett v. State, 2020 Ark. 181, 598
S.W.3d 835. Pursuant to Rule 60(b) of the Arkansas Rules of Civil Procedure, a circuit
court may at any time correct clerical mistakes in judgments, decrees, orders, or other parts
of the record and errors therein arising from oversight or omission. Id. A circuit court’s
power to correct mistakes or errors is to make the record speak the truth, but not to make
it speak what it did not speak but ought to have spoken. State v. Rowe, 374 Ark. 19, 285
S.W.3d 614 (2008).
Here, the record demonstrates that the information charged Willingham with theft
of property valued between $1,000 and $5,000. However, the information additionally
charged Willingham for committing the theft “with the purpose of depriving the owner of
the property by threat of serious physical injury.” The information further designates the
theft charge as a Class B felony that was properly designated as such in accordance with
section 5-36-103(b)(1)(B), which states in pertinent part that theft of property is classified as
a Class B felony if the property is obtained by threat of serious injury. Moreover, the
transcript of the plea hearing reveals that Willingham had been advised that he was being
4 charged with a Class B felony, which carried a maximum term of imprisonment of twenty
years for the theft-of-property offense; and following Willingham’s plea, the court
pronounced that he was guilty of a Class B felony theft-of-property offense and sentenced
him to twenty years’ imprisonment.
A judgment of conviction is legal when it is entered in accordance with the offense
for which a defendant was charged. See McKee v. State, 316 Ark. 174, 871 S.W.2d 351
(1994) (per curiam) (concluding that the circuit court did not have the authority to alter a
judgment that was not consistent with the offense charged in the information). Here, the
original and amended sentencing orders that designated Willingham’s theft conviction as a
violation of section 5-36-103(b)(3)(A) without reference to a violation of section 5-36-
103(b)(1)(B) is a clerical error and may be amended nunc pro tunc to conform to the
charging information.
Willingham next contends that the sentencing order is invalid because it reflects that
he was convicted as a habitual offender. The plea transcript reveals that the habitual-offender
charges were dismissed by the prosecutor as part of the plea agreement. The State in its
responsive brief concedes that this is a clerical error that should be remanded and corrected
nunc pro tunc by the circuit court to make the record speak the truth. We agree.
Finally, the original and amended sentencing orders are facially illegal with respect
to the twenty-year suspended sentence for kidnapping that was imposed to run
consecutively to the separate charges listed in the orders. A circuit court is not authorized
to run a suspended sentence consecutively to a term of imprisonment that was imposed for
a different charge. Walden v. State, 2014 Ark. 193, 433 S.W.3d 864 (citing Ark. Code Ann.
5 § 5-4-307(b)(2) (Repl. 2013). In accordance with section 5-4-307(b)(2), the suspended
sentence for kidnapping should have been imposed to run concurrently with the terms of
imprisonment for the separate offenses for which Willingham was convicted. Id., 433
S.W.3d 864.
While Willingham failed to challenge the suspended sentence for kidnapping as
illegal, this court views an issue of a void or illegal sentence as one of subject-matter
jurisdiction that cannot be waived by the parties and may be addressed for the first time on
appeal. Id. Furthermore, this court may address an illegal sentence sua sponte because void
or illegal sentences are matters of subject-matter jurisdiction, and we review them even if
they are not raised on appeal. Scherrer v. State, 2019 Ark. 264, 584 S.W.3d 243 (citing Harness
v. State, 352 Ark. 335, 101 S.W.3d 235 (2003)).
The circuit court’s 2020 nunc pro tunc order failed to correct the errors described
above. Therefore, the court is directed to enter a second amended sentencing order nunc
pro tunc consistent with this opinion that shall include the correct description and code
section supporting the conviction for a Class B felony theft, that eliminates the habitual-
offender charges, and that imposes the suspended sentence for kidnapping to run
concurrently.
Reversed and remanded to correct sentencing order.
Oscar C. Willingham, pro se appellant.
Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.