Charles Edward Harris, Jr. v. Whitney Gass, William Byers,, Dexter Payne, Buddy Chadick,, John Felts, Tyrone Broomfield, John Doe, And, Bobby Glover ( 2024 )

Cite as 2024 Ark. 78SUPREME COURT OF ARKANSAS
No. CV-23-633
Opinion Delivered: May 9, 2024
CHARLES EDWARD HARRIS, JR.
APPELLANT
APPEAL FROM THE LINCOLN
V. COUNTY CIRCUIT COURT
[NO. 40CV-23-34]
WHITNEY GASS, WILLIAM BYERS,
DEXTER PAYNE, BUDDY HONORABLE JODI RAINES
CHADICK, DENNIS, JUDGE
JOHN FELTS, TYRONE
BROOMFIELD, JOHN DOE, AND
BOBBY GLOVER AFFIRMED; PETITION FOR
APPELLEES RECONSIDERATION DENIED.
COURTNEY RAE HUDSON, Associate Justice
Appellant Charles Edward Harris, Jr., appeals the denial and dismissal of his pro se
petition for writ of habeas corpus filed pursuant to Arkansas Code Annotated section 16-
112-101 (Repl. 2016) in Lincoln County, which is the county where he is incarcerated.
For reversal, Harris argues that (1) the special judge who presided over his criminal trial was
not properly appointed in compliance with amendment 80 and Arkansas Supreme Court
Administrative Order No. 16, and therefore, the circuit court lacked jurisdiction; and (2)
that his convictions violated the prohibition against double jeopardy. We affirm the circuit
court’s denial of Harris’s habeas petition and deny Harris’s petition for reconsideration.
A Pulaski County jury convicted Harris of first-degree battery and a terroristic act
after he fired eight or nine gunshots into a vehicle occupied by the victim and the victim’s
friend. The gunshots shattered the vehicle’s rear window and injured the victim. Harris was
sentenced as a habitual offender to an aggregate term of 180 months’—or fifteen years’—
imprisonment. Harris’s conviction and sentences were affirmed by the Arkansas Court of
Appeals. Harris v. State, 2010 Ark. App. 247.
A circuit court’s decision on a petition for writ of habeas corpus will be upheld unless
it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly
erroneous when, although there is evidence to support it, the appellate court, after reviewing
the entire evidence, is left with the definite and firm conviction that a mistake has been
made. Id. Harris insists that a special judge, Dale Adams, was appointed to replace Judge
Herbert Wright in contravention of amendment 80 of the Arkansas Constitution as well as
Administrative Order No. 16. Amendment 80 and Administrative Order No. 16 provide
that the Chief Justice of the Arkansas Supreme Court has the authority to assign a special
judge under rules adopted by the Arkansas Supreme Court. See Russell v. Payne, 2020 Ark.
377. Harris offers no substantial evidence that the appointment of Special Judge Dale Adams
failed to comply with amendment 80 or Administrative Order No. 16, other than an
allegation that the process of appointing a special judge was not included in the transcript
filed on direct appeal. The record on appeal includes only those materials relevant to the
issues on appeal. Busbee v. Ark. Dep’t of Health & Hum. Servs., 369 Ark. 416, 255 S.W.3d
463 (2007). Additionally, a challenge to the appointment of a special judge is not cognizable
in habeas proceedings.
A writ of habeas corpus is proper when a judgment and commitment order is invalid
on its face or when a circuit court lacks jurisdiction over the cause. Finney v. Kelley, 2020
CV-23-633
2
Ark. 145, 598 S.W.3d 26. Jurisdiction is the power of the court to hear and determine the
subject matter in controversy. Id. When the circuit court has personal jurisdiction over the
appellant and has jurisdiction over the subject matter, the court has authority to render the
judgment. Id. A circuit court has subject-matter jurisdiction to hear and determine cases
involving violations of criminal statutes and has personal jurisdiction over offenses
committed within the county over which it presides. Fuller/Akbar v. Payne, 2021 Ark. 155,
628 S.W.3d 366. In Arkansas, a circuit court has subject-matter jurisdiction of all justiciable
matters, including criminal matters. Jackson v. Payne, 2022 Ark. 10, 636 S.W.3d 765. The
circuit court has personal jurisdiction over offenses committed within the county over
which it presides. Fuller/Akbar, 2021 Ark. 155, 628 S.W.3d 366. A challenge to the
appointment of an individual judge to preside over a criminal case is a nonjurisdictional issue
and is a matter of trial error that should have been raised at trial and on direct appeal. Id.Harris committed the two offenses in Pulaski County and was properly tried before a circuit
court that had both personal and subject-matter jurisdiction.
Harris next claims that his convictions for first-degree battery and a terroristic act
violate the prohibition against double jeopardy because the two offenses arose from the same
continuing course of conduct, and first-degree battery and a terroristic act share the same
elements. Harris’s double-jeopardy claim is equally unavailing. Each gunshot fired by Harris
represented a separate criminal act that supports separate criminal charges, such as a charge
of a terroristic act and first-degree battery. Lee v. State, 2017 Ark. 337, 532 S.W.3d 43; see
also McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999) (firing three shots into an
apartment constituted three separate terroristic acts). Because firing multiple gunshots are
CV-23-633
3
considered distinct criminal acts, there is no need to decide whether the elements in different
charges overlap. Lee, 2017 Ark. 337, 532 S.W.3d 43.
A petitioner for the writ who does not allege his or her actual innocence and proceed
under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the circuit
court’s lack of jurisdiction and make a showing, by affidavit or other evidence, of probable
cause to believe that he or she is being illegally detained. Id. (citing Ark. Code Ann. § 16-
112-103(a)(1) (Repl. 2016)). Unless the petitioner can show that the circuit court lacked
jurisdiction or that the commitment order was invalid on its face, there is no basis for a
finding that a writ of habeas corpus should issue. Id. In habeas proceedings, an illegal
sentence is one that exceeds the statutory maximum sentence. See Hobbs v. Turner, 2014
Ark. 19, 431 S.W.3d 283. If a petitioner does not show that on the face of the commitment
order there was an illegal sentence imposed, the claim does not implicate the jurisdiction of
the court to hear the case, and the claim is not one that is cognizable in a habeas proceeding.
Proctor v. Payne, 2020 Ark. 142, 598 S.W.3d 17.
Harris did not challenge the facial legality of his sentences for the two offenses. The
concurrent sentences of 180 months’ imprisonment do not exceed the statutory maximum
for the crimes for which he was convicted. See Ark. Code Ann. § 5-13-201(c) (Supp. 2007)
(first-degree battery is a Class B felony); see also Ark. Code Ann. § 5-13-310(b)(2) (a
terroristic act is a Class Y felony if, with the purpose to cause physical injury, physical injury
is caused to another person). Under the habitual-offender act, Harris was subject to a
maximum term of forty years for first-degree battery and a maximum term of life
CV-23-633
4
imprisonment for a terroristic act. See Ark. Code Ann. § 5-4-501(b)(2) (Repl. 2006). The
circuit court did not err when it denied and dismissed Harris’s habeas petition.
Additional allegations were raised in the petition filed in the circuit court but have
not been raised on appeal and are therefore abandoned. See Anderson v. State, 2011 Ark.
461, 385 S.W.3d 214. The circuit court found that Harris had failed to demonstrate that he
was being illegally detained and denied and dismissed the petition. Harris has also filed a
petition for reconsideration and rehearing of this court’s per curiam order entered on
February 22, 2024, that denied Harris’s motion to supplement the record with uncertified
documents. Only documents certified by the circuit clerk provide this court with appellate
jurisdiction. Bannister v. State, 2013 Ark. 412 (per curiam).
Affirmed; petition for reconsideration denied.
Charles Edward Harris, Jr., pro se appellant.
Tim Griffin, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.
CV-23-633
5