Serandon Starling v. State of Arkansas , 2023 Ark. 32 ( 2023 )

Cite as 2023 Ark. 32SUPREME COURT OF ARKANSAS
No. CR-22-547
Opinion Delivered: March 9, 2023
SERANDON STARLING
APPELLANT PRO SE APPEAL FROM THE MILLER
COUNTY CIRCUIT COURT
V. [NO. 46CR-13-240]
HONORABLE BRENT HALTOM,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED.
COURTNEY RAE HUDSON, Associate Justice
Appellant, Serandon Starling, appeals the trial court’s denial of his pro se petition for
postconviction relief filed pursuant to Arkansas Code Annotated section 16-90-111 (Repl.
2016). For reversal, Starling argues that the trial court erred when it (1) found his petition
to be untimely, (2) concluded that his sentence was not invalid on its face, and (3) rendered
its decision without a hearing and without entering specific findings of fact and conclusions
of law to support its decision. We affirm.
In 2014, a Miller County Circuit Court jury found Starling guilty of first-degree
murder and committing a terroristic act for which he was sentenced as a habitual offender
to two life sentences plus an additional 180 months’ imprisonment for the use of a firearm
in the commission of the crimes. Starling’s convictions arose after he fired two gunshots—
one into a vehicle’s hood and another into that same vehicle’s windshield, which caused the
death of Andrew “P.J.” Cheatham. This court affirmed his convictions and sentences on
direct appeal. Starling v. State, 2016 Ark. 20, 480 S.W.3d 158.
After his convictions and sentences were affirmed on appeal, Starling sought habeas
relief pursuant to Arkansas Code Annotated section 16-112-101 (Repl. 2016), in which he
primarily argued that his convictions for first-degree murder and a Class Y terroristic act were
based on the same elements and the same action, thereby violating the prohibition against
double jeopardy and Arkansas Code Annotated sections 5-1-110 and 5-3-102 (Repl. 2013).
We affirmed the circuit court’s denial of relief, finding that Starling’s judgment does not
show that an illegal sentence was imposed for a Class Y terroristic act and that Starling did
not meet his burden of establishing that his double-jeopardy claim is cognizable in a habeas
proceeding. Starling v. Kelley, 2021 Ark. 15, 615 S.W.3d 386.
Starling filed his petition to correct an illegal sentence on June 24, 2022. The trial
court concluded that Starling’s petition was not timely filed and that the sentence imposed
was not invalid on its face. On July 25, 2022, the trial court denied Starling’s petition.
Starling filed a timely appeal.
The trial court’s decision to deny relief pursuant to section 16-90-111 will not be
overturned unless that decision is clearly erroneous. Rainer v. State, 2022 Ark. 159, 651
S.W.3d 713. Under section 16-90-111, a finding is clearly erroneous when, although there
is evidence to support it, the appellate court, after reviewing the entire evidence, is left with
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the definite and firm conviction that a mistake has been made. Millsap v. State, 2020 Ark.
38.
Section 16-90-111(a) gives a trial court authority to correct an illegal sentence at any
time. Redus v. State, 2019 Ark. 44, 566 S.W.3d 469. An illegal sentence is one that is illegal
on its face. Id. A sentence is illegal on its face when it is void because it is beyond the trial
court’s authority to impose and gives rise to a question of subject-matter jurisdiction. Swift v.
State, 2018 Ark. 74, 540 S.W.3d 288. Sentencing is entirely a matter of statute in Arkansas.
Fischer v. State, 2017 Ark. 338, 532 S.W.3d 40. The petitioner seeking relief under section
16-90-111(a) must demonstrate that his or her sentence was illegal. Redus, 2019 Ark. 44, 566
S.W.3d 469. The general rule is that a sentence imposed within the maximum term
prescribed by law is not illegal on its face. McArty v. State, 2020 Ark. 68, 594 S.W.3d 54. A
trial court has subject-matter jurisdiction to hear and determine cases involving violations of
criminal statutes, and typically, trial error does not implicate the jurisdiction of the trial court
or, as a consequence, implicate the facial validity of the judgment. Id.With these authorities in mind, we turn to Starling’s appeal. Starling’s first two points
are interrelated. He contends that the trial court clearly erred when it determined his petition
was untimely because, he alleged, his sentence is illegal on its face, and an illegal sentence
may be corrected at any time. However, his allegations do not implicate the facial validity of
the judgment in that he does not contend that the sentences imposed exceed the maximum
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sentences for the offenses for which he was convicted. McArty, 2020 Ark. 68, 594 S.W.3d
54. Starling alleges on appeal, as he did below, that when the same conduct establishes the
commission of more than one offense, the trial court is “directed” under Arkansas Code
Annotated section 5-1-110 to enter judgment solely for the first-degree murder. Starling
contends that once the trial court “contravened” the statute and entered a judgment for the
lesser-included offense of committing a terroristic act, the court acted without jurisdiction,
which resulted in a void and illegal sentence with respect to the terroristic-act conviction.
Starling’s lesser-included-offense claim is not cognizable in a petition filed pursuant
to section 16-90-111 because it is based on an allegation that his convictions and sentences
violated double jeopardy as set forth in Arkansas Code Annotated section 5-1-110 (Repl.
2013). See Dirickson v. State, 2021 Ark. 36, 617 S.W.3d 712. We have held that a claim that
multiple convictions violate the provision against double jeopardy is an assertion that the
judgment was imposed in an illegal manner, not that the judgment is facially invalid. Id.; see
also Wesley v. State, 2019 Ark. 270, 585 S.W.3d 156. As such, double-jeopardy claims should
have been raised at trial or in a postconviction petition filed pursuant to Rule 37.1 of the
Arkansas Rules of Criminal Procedure, and a petition under section 16-90-111 is not a
substitute for raising a claim under the Rule. Dirickson, 2021 Ark. 36, 617 S.W.3d 712.
The time limitations on filing a petition under section 16-90-111(a)–(b)(1) alleging
that the sentence was imposed in an illegal manner were superseded by Rule 37.2(c). Swift,
2018 Ark. 74, 540 S.W.3d 288. Rule 37.2(c)(ii) mandates that a petition seeking relief under
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the Rule must be brought within sixty days following issuance of the mandate on direct
appeal from the judgment. Starling’s petition was filed six years after the mandate in his case
had been issued and was untimely under Rule 37.2(c)(ii). Wesley, 2019 Ark. 270, 585 S.W.3d
156.
Starling’s final point is that the trial court erred when it failed to hold a hearing to
consider the section 16-90-111 petition. However, when a petition for postconviction relief
is clearly without merit, the trial court may render its decision on the petition without a
hearing. Id.; see also Williams v. State, 2019 Ark. 129, 571 S.W.3d 921. With respect to
Starling’s claim that the trial court failed to make written findings of fact and conclusions of
law when it denied his petition, the trial court found that his petition was untimely and that
it should be denied. This court can affirm the denial of postconviction relief when it can be
determined from the record that the petition is wholly without merit or when the allegations
in the petition are such that it is conclusive on the face of the petition that no relief is
warranted. Turner v. State, 2016 Ark. 96, 486 S.W.3d 757.
Affirmed.
Serandon Starling, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.
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