Kelley v. State ( 2015 )

Cite as 2015 Ark. 486
SUPREME COURT OF ARKANSAS.
No. CV-15-249
BILLY JOE KELLEY Opinion Delivered December 17, 2015
APPELLANT
PRO SE APPEAL FROM THE LEE COUNTY
V. CIRCUIT COURT
[NO. 39CV-14-102]
STATE OF ARKANSAS
APPELLEE HONORABLE RICHARD L. PROCTOR,
JUDGE
AFFIRMED.
PER CURIAM
Appellant Billy Joe Kelley is an inmate incarcerated in a unit of the Arkansas
Department of Correction situated in Lee County.1 Kelley filed a petition for writ of habeas
corpus in the Lee County Circuit Court, and the court denied relief. Kelley appeals, and we
affirm the order denying the habeas petition.
In his habeas petition, Kelley challenged a 2008 judgment in the Pulaski County Circuit
Court reflecting his conviction on a rape charge. The judgment imposed a life sentence.
Kelley contended that the sentence imposed was illegal in that he was sentenced as a habitual
offender under Arkansas Code Annotated section 5-4-501(c) (Repl. 2006) without notice of
the habitual-offender charge. The order denying the petition indicated that it was Kelley’s
burden to establish a lack of jurisdiction by the trial court or that the commitment was invalid
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Kelley, as of the date of this opinion, remains incarcerated in Lee County.
Cite as 2015 Ark. 486
on its face, that conclusory allegations are not sufficient to establish grounds for the writ, and
that the petition lacked sufficient merit to justify the relief sought.
A circuit court’s grant or denial of habeas relief will not be reversed unless the court’s
findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A finding is
clearly erroneous when, although there is evidence to support it, the appellate court is left,
after reviewing the entire evidence, with the definite and firm conviction that a mistake has
been committed. Id.
Under our statute, a petitioner for the writ who does not allege his actual innocence
and proceed under Act 1780 of 2001 Acts of Arkansas 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 is illegally detained. Ark. Code Ann. §
16-112-103(a)(1) (Repl. 2006). The burden is on the petitioner in proceedings for a writ of
habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was
invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should
issue. Fields v. Hobbs, 2013 Ark. 416.
Kelley asserts on appeal that the circuit court incorrectly concluded that he had made
conclusory statements, he reasserts his arguments that his right to due process was violated
when he was not given notice of the habitual-offender charge, and he avers that he provided
a sufficient basis to establish probable cause to demonstrate that he was illegally detained. We
affirm the decision to deny relief because the circuit court correctly determined that Kelley
failed to provide a meritorious ground for relief.
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Cite as 2015 Ark. 486
Kelley did not invoke Act 1780, and, as noted, he must have demonstrated in the
petition that the trial court lacked jurisdiction or that the commitment was invalid on its face
in order to establish grounds for the writ. Because Kelley failed to allege that his sentence
would have fallen outside the sentence range for rape without the sentence enhancement for
a habitual offender, his claim that he was charged and sentenced as a habitual offender without
proper notice is not a cognizable claim for habeas relief. See Christopher v. Hobbs, 2011 Ark.
399 (per curiam). Rape is a Class Y felony, and, under Arkansas Code Annotated section 5-4-
401(a), it is punishable by a life sentence. See Ark. Code Ann. § 5-14-103(c)(1).
Kelley’s argument was that this sentence was illegal in that he did not receive adequate
notice of the habitual-offender charge because the provision of Arkansas Code Annotated
section 5-4-501 noted on the judgment as the basis for the charge was not one of the two
subsections of the statute that had been alleged in the information. A felony information
containing general language referring to the habitual-offender statute, however, is sufficient to
put the defendant on notice that his prior convictions may be introduced in assessing an
enhanced sentence. Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203.
Despite Kelley’s characterization of his claim as one concerning an illegal sentence, the
basis for the claim, that the information did not provide sufficient information to identify the
crime, only raised trial error of the type that is not cognizable in a habeas proceeding. See
Sanders v. Straughn, 2014 Ark. 312, 439 S.W.3d 1 (per curiam). Where a court has jurisdiction
over the appellant’s person and the criminal matter, the court is not divested of jurisdiction by
a trial error that may be appealed, and the error does not provide a basis for issuance of the
writ. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990).
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Cite as 2015 Ark. 486
Kelley stated no facts adequate to support his claim that he did not receive adequate
notice. His allegations of due-process violations are not cognizable issues in a proceeding for
the writ. His claim of an illegal sentence fails because his sentence was within the permitted
range for the charge. Kelley demonstrated no error in the circuit court’s holding that he did
not provide meritorious grounds for the writ in his petition. We accordingly affirm the denial
of relief.
Affirmed.
Billy Joe Kelley, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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