Kindall v. Hobbs , 2015 Ark. LEXIS 111 ( 2015 )

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SUPREME COURT OF ARKANSAS
No. CV-14-709
KENNETH RAY KINDALL Opinion Delivered March 5, 2015
APPELLANT
PRO SE APPEAL FROM THE
V. LINCOLN COUNTY CIRCUIT COURT
[NO. 40CV-13-110]
RAY HOBBS, DIRECTOR, ARKANSAS HONORABLE JODI RAINES DENNIS,
DEPARTMENT OF CORRECTION JUDGE
APPELLEE
AFFIRMED.
PER CURIAM
In 1986, appellant Kenneth Ray Kindall was found guilty by a jury of burglary, aggravated
robbery, and rape, and he was sentenced to an aggregate term of life imprisonment and twenty
years. The judgment-and-commitment order was marked to indicate that appellant’s sentence
was enhanced for committing aggravated robbery with a deadly weapon and for using a firearm
and a deadly weapon while committing rape. We affirmed. Kindall v. State, 292 Ark. 173, 729
S.W.2d 1 (1987). On September 13, 2013, appellant filed a pro se petition for writ of habeas
corpus in the Lincoln County Circuit Court, the county in which he was imprisoned.1 The
circuit court dismissed the petition with prejudice, and appellant has lodged an appeal of that
order in this court. We affirm.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face
or when a trial court lacked jurisdiction over the cause. Tucker v. Hobbs, 2014 Ark. 449 (per
curiam); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). The burden is on the petitioner in
1
At the time of this decision, appellant remains incarcerated in Lincoln County.
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a habeas-corpus proceeding 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. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam).
Under our statute, a petitioner who does not proceed under Act 1780 of 2001 Acts of Arkansas
must plead either the facial invalidity or the lack of jurisdiction by the trial court and must
additionally 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); Murphy v. State, 2013 Ark.
155 (per curiam). Proceedings for the writ are not intended to require an extensive review of
the record of the trial proceedings, and the court’s inquiry into the validity of the judgment is
limited to the face of the commitment order. Murphy, 2013 Ark. 155.
The judgment-and-commitment order reflects that appellant’s sentence was enhanced
pursuant to Arkansas Statutes Annotated sections “41-1004/42-2336” for using a firearm while
committing rape and that his sentence was enhanced pursuant to section 43-2336.1 for
employing a deadly weapon while committing rape and aggravated robbery. As he did in his
petition, appellant argues on appeal that the enhancement for use of a firearm while committing
rape is illegal.2 Specifically, he asserts that, based on the language in Arkansas Statutes
Annotated section 41-803 (Supp. 1985) (later codified at Arkansas Code Annotated section 5-4-
104 (1987)) that “no defendant convicted of an offense shall be sentenced otherwise than in
2
Because the only enhancement statutes that appellant refers to in his petition and on
appeal are sections “41-1004/42-2336,” he only raises the argument that the enhancement of
the rape sentence based on the use of a firearm is illegal and fails to challenge the enhancement
of the rape or aggravated-robbery sentence pursuant to Arkansas Statutes Annotated section 41-
2336.1 (Supp. 1985).
2
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accordance with this Article [§§ 41-801–41-1309],” the enhancement is illegal because the
enhancement statutes under which he was sentenced, sections “41-1004/42-2336,” were not part
of the Article. He contends that, because the enhancement is not an “authorized sentence”
under Arkansas law, the trial court did not have the authority to impose it and the judgment-and-
commitment order is facially invalid.3 Arkansas Statutes Annotated section 41-1004 (Supp.
1985) was later codified at Arkansas Code Annotated section 5-4-505 (1987), which was repealed
by Act of March 16, 1993, No. 532, § 9, 1993 Arkansas Acts 1471, 1492. The reference in the
judgment-and-commitment order to section 42-2336 appears to be a citation to section 43-2336
(Repl. 1977) (later codified at Arkansas Code Annotated section 16-90-120(a)-(b) (1987)).
We note that section 41-1004 falls within the sentencing provisions referenced in section
41-803. Further, we have previously rejected appellant’s argument that the language formerly
employed in section 41-803(1) precluded imposition of an enhancement statute enacted outside
of the Arkansas Criminal Code. See Williams v. State, 364 Ark. 203, 217 S.W.3d 817 (2005); Smith
v. State, 2013 Ark. 364. In Williams, the defendant argued that the five-year sentence imposed
on him under Arkansas Code Annotated section 16-90-120(a) and (b) (Repl. 2006) for having
used a firearm to commit aggravated robbery was forbidden by section 5-4-104(a). In that case,
Williams asserted that because his commission of aggravated robbery occurred after the passage
of the Arkansas Criminal Code in 1975 and because aggravated robbery is defined in the
Arkansas Criminal Code, his sentencing should have been governed solely by that Code and not
3
Arguments raised by appellant for the first time in his reply brief will not be considered
on appeal. This court will not consider arguments raised for the first time in an appellant’s reply
brief because the appellee is not given a chance to rebut the argument. Graves v. Greene County,
2013 Ark. 493, 430 S.W.3d 722.
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by any other statutory provision. One of the arguments that Williams raised to support his claim
was based on section 5-4-104(a), which reads: “No defendant convicted of an offense shall be
sentenced otherwise than in accordance with this chapter.” We disagreed, holding that, because
section 5-4-104(a) can be viewed as referring to the initial sentence imposed based on the crime
for which the defendant was convicted, section 5-4-104(a) and section 16-90-120(a)-(b) can be
read harmoniously to mean that section 16-90-120(a)-(b) is only a sentence enhancement that
may be added to an initial sentence, while the Arkansas Criminal Code provides the minimum
sentence to be imposed for each specific offense. Williams, 364 Ark. 203, 217 S.W.3d 817.
Subsequently, in Smith, we declined to overrule Williams and rejected the argument that language
in the commentary to Arkansas Statutes Annotated section 41-803(1) required that Arkansas
Code Annotated section 5-4-104(a) be interpreted to refer to a sentence enhancement as well
as to an initial sentence.4 Smith, 2013 Ark. 364.
The policy behind stare decisis is to lend predictability and stability to the law. Cochran
v. Bentley, 369 Ark. 159, 174, 251 S.W.3d 253, 265 (2007). There is a strong presumption of the
validity of prior decisions, and it is necessary as a matter of public policy to uphold prior
decisions unless great injury or injustice would result. Id. Precedent governs until it gives a
result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Id. Because
appellant fails to demonstrate that our previous holdings in Williams and Smith are patently
wrong or manifestly unjust, we decline to break from precedent and hold that his sentence is not
4
The second sentence of the commentary to Arkansas Statutes Annotated section 41-
803(1) states, “Subsection (1) makes it clear that the disposition of a defendant convicted of any
offense, whether defined by this Code, another statute, or a municipal ordinance, is governed
by the provisions of this article.”
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illegal.
Because appellant did not establish the facial invalidity of the judgment or demonstrate
a lack of the trial court’s jurisdiction, he did not establish a basis for a writ of habeas corpus to
issue. See Culbertson v. State, 2012 Ark. 112 (per curiam); Skinner v. Hobbs, 2011 Ark. 383 (per
curiam); McHaney v. Hobbs, 2012 Ark. 361 (per curiam). Accordingly, the circuit court’s order
is affirmed.
Affirmed.
Kenneth Ray Kindall, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
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