Vera v. State

2016 Ark. 238

• Court: Supreme Court of Arkansas
• Decided: June 2, 2016
• Docket: CR-16-136
• Status: Published

Opinion

Cite as 2016 Ark. 238

SUPREME COURT OF ARKANSAS. No. CR-16-136

DANIEL VERA Opinion Delivered June 2, 2016 APPELLANT PRO SE MOTION FOR EXTENSION V. OF BRIEF TIME [PULASKI COUNTY CIRCUIT STATE OF ARKANSAS COURT, NO. 60CR-12-3401] APPELLEE HONORABLE LEON JOHNSON, JUDGE

APPEAL DISMISSED; MOTION MOOT.

PER CURIAM

Appellant Daniel Vera is an inmate incarcerated in the Arkansas Department of

Correction serving an aggregate sentence of 180 months’ imprisonment. Vera’s sentence

was imposed by a judgment entered in the Pulaski County Circuit Court on August 18,

2014, convicting Vera of the charges of rape, residential burglary, first-degree terroristic

threatening, violation of an order of protection, and third-degree domestic battering. On

October 6, 2015, Vera filed in the trial court a petition to reconsider and/or modify

sentence, and the court denied it. Vera lodged this appeal, and he filed a motion in which

he seeks an extension of time to file his brief. Because it is clear that Vera cannot prevail

on appeal, we dismiss the appeal and the motion is therefore moot.

When it is clear from the record that the appellant cannot prevail if an appeal of an

order that denied postconviction relief were permitted to go forward, we dismiss the appeal.

Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam); see also Justus v. State, 2012 Cite as 2016 Ark. 238

Ark. 91. It is clear from the record that the trial court correctly found that it did not have

authority to grant relief on Vera’s petition.

Vera’s petition did not clarify the basis for modifying the sentence imposed. He

merely requested a hearing to “make the court aware of new and mitigating circumstances

to reconsider.” He did not contend that his sentence was illegal or invalid, only that

circumstances since its imposition had changed. Once a sentence has been placed into

execution, the trial court no longer has authority to modify, amend, or revise a valid

sentence. Johnson v. State, 2012 Ark. 212. Vera did not plead facts sufficient for the trial

court to grant the relief he requested. Id.

Even if the trial court had treated the petition as one for postconviction relief under

Arkansas Rule of Criminal Procedure 37.1 (2015), it could not grant relief. Because he

entered a guilty plea, under Arkansas Rule of Criminal Procedure 37.2(c) (2014), Vera was

required to file his Rule 37.1 petition within ninety days of the date of entry of the

judgment. Vera filed his petition more than a year after the judgment had been entered,

and it was not timely under the Rule. The time requirements are mandatory, and when a

petition under Rule 37.1 is not timely filed, a trial court shall not grant postconviction relief.

See Joslin v. State, 2015 Ark. 328 (per curiam); see also Engram v. State, 2013 Ark. 424, 430

S.W.3d 82. It is therefore clear that Vera cannot prevail on appeal of the order denying

postconviction relief.