Frost v. State , 2014 Ark. 46 ( 2014 )

Cite as 2014 Ark. 46
SUPREME COURT OF ARKANSAS
No. CV-13-512
JIMMY L. FROST Opinion Delivered January 30, 2014
APPELLANT
PRO SE MOTION FOR
V. APPOINTMENT OF COUNSEL;
MOTION FOR EXTENSION OF TIME
TO FILE BRIEF; MOTION TO
STATE OF ARKANSAS DISMISS MOTION FOR EXTENSION
APPELLEE TO FILE BRIEF; SECOND MOTION
FOR EXTENSION OF TIME TO FILE
BRIEF [ LEE COUNTY CIRCUIT
COURT, NO. 30CV-13-55]
HONORABLE L.T. SIMES, JUDGE
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
In 2008, appellant Jimmy Lee Frost was found guilty by a jury of attempted first-degree
murder, committing a terroristic act, and being a felon in possession of a firearm. He was
sentenced as a habitual offender to 276 months’ imprisonment. The Arkansas Court of Appeals
affirmed. Frost v. State, 2010 Ark. App. 163.
In 2013, appellant filed in the Lee County Circuit Court, the county in which he is
incarcerated, a pro se petition for writ of habeas corpus.1 The circuit court denied the petition
by written order, and appellant timely filed a notice of appeal from that order. Now before us
are appellant’s motions for appointment of counsel, for extension of time to file brief, and to
1
As of the date of this opinion, appellant remains incarcerated in Lee County.
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dismiss motion for extension to file brief, as well as a second motion for extension of time to
file brief.
We dismiss the appeal, and the motions are moot as it is clear from the record that
appellant could not prevail on appeal. An appeal of the denial of postconviction relief, including
an appeal from an order that denied a petition for habeas corpus, will not be permitted to go
forward where it is clear that the appeal is without merit. Glaze v. State, 2013 Ark. 458 (per
curiam).
The burden is on the petitioner in a habeas-corpus petition 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. Culbertson v. State, 2012 Ark. 112 (per
curiam). Under our statute, a petitioner who does not allege actual innocence and proceed under
Act 1780 of 2001 Acts of Arkansas 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); Darrough v. State, 2013 Ark. 28 (per curiam). A circuit court’s denial of
habeas relief will not be reversed unless the court’s findings are clearly erroneous. Justus v. Hobbs,
2013 Ark. 149 (per curiam).
In the petition, appellant apparently contended that the trial court acted without authority
and in violation of the state and federal constitutions by modifying the sentence recommended
by the jury to add a consecutive sentence for the firearm enhancement.2 Without even reaching
2
In the petition, appellant also stated that he was sentenced as a habitual offender;
however, he provided no argument as to why he was entitled to habeas relief based on the use
of this enhancement.
2
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the merits of appellant’s argument, we dismiss the appeal as appellant could not prevail because
his claim is based on errors of fact. According to the trial record, the jury fixed appellant’s
sentence at a term of 276 months’ imprisonment for attempted first-degree murder, a term of
120 months’ imprisonment for committing a terroristic act, and a term of 120 months’
imprisonment for being a felon in possession of a firearm, with the recommendation that none
of the terms of imprisonment be served consecutively. From the bench, the trial court then
ordered the sentence as fixed by the jury, including an order that the sentences run concurrently.
The judgment-and-commitment order reflects the sentence fixed by the jury and ordered by the
trial court.
Appeal dismissed; motions moot.
Jimmy L. Frost, pro se appellant.
No response.
3