Ford v. State , 2014 Ark. 257 ( 2014 )

Cite as 2014 Ark. 257
SUPREME COURT OF ARKANSAS
No. CR-14-221
Opinion Delivered May 29, 2014
DWIGHT L. FORD APPELLANT’S PRO SE MOTION TO
APPELLANT SUPPLEMENT RECORD
[PULASKI COUNTY CIRCUIT COURT,
v. NOS. 60CR-82-1187, 60CR-82-1188,
60CR-82-1189]
STATE OF ARKANSAS
APPELLEE HONORABLE HERBERT WRIGHT,
JR., JUDGE
APPEAL DISMISSED; MOTION
MOOT.
PER CURIAM
In 1982, appellant Dwight L. Ford entered a plea of guilty to three counts of aggravated
robbery and two counts of rape and was sentenced to five concurrent terms of life
imprisonment. He subsequently filed in the trial court a petition for postconviction relief
seeking to withdraw the pleas. The trial court treated the petition as a petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1982) and denied
relief after holding a hearing. We affirmed. Ford v. State, CR-85-22 (Ark. May 13, 1985)
(unpublished per curiam) (original docket no. CACR 85-22).
In 2013, appellant filed another petition for postconviction relief in the trial court,
seeking to have the judgment rendered in 1982 declared void under Rule 37.1. In the petition,
appellant alleged that the judgment was a nullity on the ground that the trial court did not have
jurisdiction to enter the judgment because (1) he was “serving juvenile parole status” for a prior
offense when he was charged with the five felony offenses and the “juvenile court had not
released its jurisdiction”; and (2) he was a juvenile when accused of the felony offenses and the
Cite as 2014 Ark. 257
court erred in not holding a juvenile-transfer hearing but instead sentenced him to five
concurrent life sentences.1 The trial court denied the Rule 37.1 petition, and appellant lodged
an appeal here from the order. He now seeks by motion to supplement the record on appeal.
As it is clear from the record that appellant could not prevail on appeal, the appeal is
dismissed. The motion is moot. An appeal from an order that denied a petition for
postconviction relief under Rule 37.1 will not be permitted to go forward where it is clear that
there is no merit to the appeal. Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).
Rule 37.1, as it applies to a petitioner whose judgment was entered before July 1, 1989,
provides that a petition under the Rule is untimely if not filed within three years of the date of
commitment unless the petitioner states some ground for relief which, if found meritorious,
would render the judgment of conviction absolutely void, i.e. a complete nullity. Halfacre v. State,
2010 Ark. 377 (per curiam); Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985); Collins v. State,
271 Ark. 825, 611 S.W.2d 182 (1981) (per curiam), cert. denied 452 U.S. 973 (1981). Even trial
error of constitutional dimension, if not sufficient to void the judgment, does not warrant
granting relief under the Rule when the issue was raised, or could have been raised, at trial and,
if applicable, on the record on appeal. Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989) (per
curiam). The onus is on the petitioner to establish that there is a ground sufficient to void the
judgment of conviction. Travis, 286 Ark. 26, 688 S.W.2d 935.
Neither of the claims advanced by appellant in his Rule 37.1 petition was sufficient to
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To the extent appellant is seeking relief pursuant to Graham v. Florida, 560 U.S. 48 (2010),
this claim would be appropriate in a petition for writ of habeas corpus rather than an untimely
Rule 37.1 petition. See Hobbs v. Turner, 2014 Ark. 19, ___ S.W.3d ___.
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establish that judgment entered in his case was a complete nullity on the ground that the trial
court lacked jurisdiction in the case. First, this court has held that the failure of the trial court
to hold a juvenile-transfer hearing in a case does not, in itself, render a judgment of conviction
void. Morgan v. State, 2011 Ark. 377 (per curiam). Appellant raised the same issue in a petition
for writ of habeas corpus filed in 1993. The petition was denied, and this court affirmed the
order, holding that neither that issue, nor any other allegation raised by appellant in the habeas
petition, demonstrated that the trial court lacked jurisdiction to render the judgment. Ford v.
State, CR-93-841 (Ark. Nov. 22, 1993) (unpublished per curiam).
With respect to appellant’s allegation that the trial court did not have jurisdiction over
the case on the ground that he was still within the jurisdiction of the juvenile court on prior
charges, appellant’s claim lacked cogent, persuasive argument to establish that his “juvenile
parole status” had any effect on the trial court’s jurisdiction over the separate felony charges to
which he ultimately pled guilty. Jurisdiction is the power of the court to hear and determine the
subject matter in controversy. Henderson v. State, 2014 Ark. 180. Jurisdiction was vested with the
circuit court by virtue of the State’s felony information filed against appellant. See Rueda v. State,
2012 Ark. 144 , 400 S.W.3d 226; Walker v. State, 309 Ark. 23, 827 S.W.2d 637 (1992) (observing
that the trial court acquired jurisdiction of the subject matter when the charge was filed). It was
appellant’s burden under Rule 37.1 to show that the trial court in his case lacked subject-matter
jurisdiction to hear and determine his case involving violations of criminal statutes. He did not
meet that burden. See Hill v. State, 2014 Ark. 57 (per curiam) (holding that, when the petitioner
is required to file his petition under the Rule within three years of the date of commitment, the
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burden is on the petitioner to establish that there is a ground sufficient to void the judgment of
conviction; otherwise, the petition is considered untimely filed); see also Munnerlyn v. State, 2013
Ark. 339 (per curiam).
Appeal dismissed; motion moot.
Dwight L. Ford, pro se appellant.
Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
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