Michael Osburn v. Michelle Gray, Warden , 2022 Ark. 39 ( 2022 )

Cite as 2022 Ark. 39SUPREME 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.
Affirmed.
Michael Osburn, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.
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