Robert Fischer v. Dexter Payne, Director, Arkansas Department of Correction , 2022 Ark. 105 ( 2022 )

Cite as 2022 Ark. 105SUPREME COURT OF ARKANSAS
No. CV-21-430
Opinion Delivered: May 19, 2022
ROBERT FISCHER
APPELLANT PRO SE APPEAL FROM THE HOT
SPRING COUNTY CIRCUIT COURT
V. [NO. 30CV-21-63]
HONORABLE PHILLIP H. SHIRRON,
DEXTER PAYNE, DIRECTOR, JUDGE
ARKANSAS DEPARTMENT OF
CORRECTION AFFIRMED.
APPELLEE
RHONDA K. WOOD, Associate Justice
Robert Fischer appeals the circuit court’s dismissal of his pro se petition for a writ of
habeas corpus. Fischer alleged that his conviction is illegal because he only committed one
offense but was convicted of six counts of possessing matter depicting sexually explicit images
of a child. He alternatively argued his multiple sentences should be served concurrently, not
consecutively. The circuit court denied his petition, finding that the six consecutive
sentences were legal. We affirm.
In 2009, Fischer was convicted of six counts of possessing child pornography and was
sentenced to ten years’ imprisonment on each count, resulting in an aggregate term of sixty
years’ imprisonment. The Arkansas Court of Appeals affirmed. Fischer v. State, 2011 Ark.
App. 580. Years later, Fischer filed a pro se petition for relief from an illegal sentence under
Arkansas Code Annotated section 16-90-111 (Repl. 2016). He contended that he was only
convicted of one Class C felony offense and therefore could not have been sentenced to six
consecutive ten-year sentences. He alternatively argued that even if he had multiple
convictions, Arkansas Code Annotated section 5-4-403(a) mandates that the sentences run
concurrently. The circuit court denied the petition. On appeal, we found that it was “clear
from the record” that Fischer could not prevail on the merits. Fischer v. State, 2017 Ark. 338,
532 S.W.3d 40.
Now, Fischer is again pursuing relief from his multiple sentences resulting from his
possession of sexually explicit material involving children. Although the arguments are the
same as those he previously raised, this time he asserts relief through a writ of habeas corpus.
The circuit court correctly denied his petition.
We will affirm a circuit court’s decision on a petition for writ of habeas corpus unless
it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly
erroneous when the appellate court, after reviewing the entire evidence, is left with the
definite and firm conviction that there has been a mistake. Id. 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 matter. Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503. A trial court
has subject-matter jurisdiction to hear and determine cases involving violations of criminal
statutes. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). In Arkansas, sentencing is a
matter of statute, and this court has consistently held that sentencing must be according to
the statute in effect at the time of the crime.
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As stated above, Fischer alleges that his consecutive sentences for six counts of
possessing matter depicting sexually explicit images of a child are illegal because he
committed only one offense. Thus, he believes his sentence should not be ten years’
imprisonment. However, Fischer was charged with, and convicted of, six counts of
distributing, possessing, or viewing matter depicting sexually explicit conduct involving a
child, a Class C felony, for the first offense. See Ark. Code Ann. § 5-27-602(b)(1) (Repl.
2006). The sentence for a Class C felony “shall be not less than three (3) years nor more than
ten (10) years.” Arkansas Code Annotated section 5-4-401(a)(4) (Repl. 2006). Thus, his
sentences, which are within the statutory range, are not facially illegal. See also Fischer, 2017
Ark. 338, at 3, 532 S.W.3d at 42 (explaining Fischer’s sentences were legal).
Likewise, his argument about concurrent rather than consecutive sentences is
meritless as we previously stated in his prior case. Id. at 3–4, 532 S.W.3d at 42. The decision
to impose sentences concurrently or consecutively is solely within the province of the trial
court. See Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Because the trial court’s decision
to deny Fischer’s writ for habeas corpus was not clearly erroneous, we affirm.
Affirmed.
Robert Fischer, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.
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