Routy W. Abernathy v. Wendy Kelley, Director, Arkansas Department of Correction

2020 Ark. 228, 602 S.W.3d 82

• Court: Supreme Court of Arkansas
• Decided: June 4, 2020
• Status: Published

Opinion

Cite as 2020 Ark. 228 SUPREME COURT OF ARKANSAS No. CV-19-723

Opinion Delivered: June 4, 2020 ROUTY W. ABERNATHY APPELLANT PRO SE APPEAL FROM THE LINCOLN V. COUNTY CIRCUIT COURT [NO. 40CV-19-77] WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF HONORABLE JODI RAINES CORRECTION DENNIS, JUDGE APPELLEE AFFIRMED.

ROBIN F. WYNNE, Associate Justice

Appellant Routy W. Abernathy appeals from the denial and dismissal of his pro se

petition for writ of habeas corpus pursuant to Arkansas Code Annotated section 16-112-

101 (Repl. 2016). Because Abernathy stated no ground in the petition on which the writ

could issue under Arkansas law, we affirm the circuit court’s order.

I. Background

In 2009, a jury found Abernathy guilty of two counts of the rape of two children.

He was sentenced to an aggregate term of sixty years’ imprisonment. The Arkansas Court

of Appeals affirmed. Abernathy v. State, 2009 Ark. App. 702. In 2019, Abernathy filed the

petition for writ of habeas corpus in the county where he is incarcerated, alleging that (1)

the sentence imposed on him was excessive and based on “junk science”; (2) inadmissible

testimony was allowed in the sentencing phase of his trial from a third child about sexual conduct that was never proved and for which he was never charged; and (3) he was denied

the right to allocution before the sentence was imposed. He reiterates the same three

points on appeal.

II. Grounds for Issuance of the Writ

A writ of habeas corpus is proper when a judgment and commitment order is

invalid on its face or when a trial court lacks jurisdiction over the cause. Foreman v. State,

2019 Ark. 108, 571 S.W.3d 484. 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). When the trial court has personal jurisdiction over the appellant and has

jurisdiction over the subject matter, the court has authority to render the judgment.

Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989).

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

innocence and proceed under Act 1780 of 2001, codified at Arkansas Code Annotated

sections 16-112-201 to -208 (Repl. 2016), seeking scientific testing of evidence, 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 or she

is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Proceedings

for the writ are not intended to require an extensive review of the record of the trial

proceedings, and the circuit court’s inquiry into the validity of the judgment is limited to

the face of the commitment order. McArthur v. State, 2019 Ark. 220, 577 S.W.3d 385.

Unless the petitioner can show that the trial court lacked jurisdiction or that the 2 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.

III. Standard of Review

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 made. Id.

IV. Claim of an Excessive Sentence

Abernathy was sentenced to thirty years’ imprisonment on each of the two counts of

rape. Rape is a Class Y felony. Ark. Code Ann. § 5-14-103(c)(1) (Repl. 2006). Under

Arkansas Code Annotated section 5-4-401(a)(1) (Repl. 2006), a Class Y felony is punishable

by a sentence of not less than ten years nor more than forty years, or life. In accordance

with Arkansas Code Annotated section 5-4-403(a) (Repl. 2006), the trial court had

authority to exercise its discretion and order that the sentences imposed on Abernathy be

served consecutively. We have rejected the argument that imposition of consecutive

sentences is cruel and unusual punishment. See Thompson v. State, 280 Ark. 265, 658

S.W.2d 350 (1983) (holding that the cumulative effect of consecutive sentences does not

make punishment cruel and unusual). Accordingly, the sixty-year sentence imposed on

Abernathy was a legal sentence.

3 Abernathy’s allegation that the length of the sentence was based on junk science

pertaining to the proclivities of sex offenders amounted to a challenge to the statutes under

which he was sentenced that would require the circuit court to go behind the face of the

judgment to determine if there was error in the trial proceeding. Likewise, Abernathy’s

assertion that the harshness of his sentence was unfairly based on the testimony of a third

child who testified under the “pedophile exception” to Arkansas Rule of Evidence 404(b)

(2004) was a claim that inadmissible evidence was admitted at trial; that is, it was a claim of

trial error. Trial error is not a ground for the writ. Stephenson v. Kelley, 2018 Ark. 143, 544

S.W.3d 44. The issues of trial error raised by Abernathy in his petition for the writ could

have been raised in the trial court and settled there. Johnson v. State, 2018 Ark. 42, 538

S.W.3d 819. A habeas proceeding is not another opportunity to raise claims of trial error

because assertions of trial error and due-process or equal-protection claims do not call into

question the facial validity of the judgment or the jurisdiction of the trial court. See King v.

Kelley, 2018 Ark. 147; see also Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503 (Due-

process claims do not implicate the facial validity of the judgment or the jurisdiction of the

trial court.).

V. Claim of Denial of Right of Allocution

Abernathy also contends that the writ should issue because the trial court informed

him that it accepted the jury’s recommended sentence without affording him his right of

4 allocution as required by Arkansas Code Annotated section 16-90-106(b) (Repl. 2006).1

We have held that a violation of section 16-90-106 does not implicate the trial court’s

jurisdiction or render a sentence illegal. See Johnson v. Kelley, 2019 Ark. 230, 577 S.W.3d

710. Abernathy’s allegation that he was denied the right of allocution could have been

raised at trial, and it does not state a ground for the writ.

Affirmed.

Special Justice LYN P. PRUITT joins in this opinion.

HART, J., not participating.

Routy W. Abernathy, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Sr. Ass’t Att’y Gen., for appellee.

1In his statement of facts at the opening of his brief, Abernathy states that the trial

court informed him that he had a right of allocution: “You have a right of allocution if you want to say anything about this case or have anything to say about this matter at this time you may do so.” Abernathy further states that he “didn’t say anything, because the allocution served no purpose for him, since the jury had been already been excused.” Abernathy appears to contend that the jury’s absence denied him his right of allocution.