Smith v. Kelley

Cite as 2016 Ark. 307
SUPREME COURT OF ARKANSAS
No. CV-16-167
Opinion Delivered: September 15, 2016
PRO SE APPEAL FROM THE LEE
COUNTY CIRCUIT COURT [NO.
39CV-15-82]
BILLY RAY SMITH
APPELLANT
V. HONORABLE CHALK S. MITCHELL,
JUDGE
WENDY KELLEY, DIRECTOR,
ARKANSAS DEPARTMENT OF REVERSED; WRIT ISSUED;
CORRECTION REMANDED TO PIKE COUNTY
APPELLEE CIRCUIT COURT IN CASE NO.
55CR-77-1 WITH INSTRUCTIONS.
RHONDA K. WOOD, Associate Justice
Appellant Billy Ray Smith filed a petition for writ of habeas corpus in Lee County
where he is incarcerated for rape and aggravated burglary offenses. Smith appeals the denial
of his petition. On appeal, Smith contends that the circuit court erred in finding his claim
that he received an illegal sentence for rape under Graham v. Florida was without merit and
denying habeas relief. 560 U.S. 48 (2010). As Smith was under the age of eighteen at the
time of the offense, his sentence of life without parole is illegal. Accordingly, we reverse
the denial of Smith’s habeas petition, issue the writ, and remand to the sentencing court for
entry of a sentence of fifty years on the rape charge in Pike County Circuit Court case
number 55CR-77-1.
In 1977, appellant Billy Ray Smith entered guilty pleas in Pike County Circuit Court
to charges of rape and aggravated robbery. In 1984, after the trial court granted a motion
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for new trial, Smith was convicted, and he received a sentence of life imprisonment on the
rape charge and a sentence of fifty years’ imprisonment on the robbery charge, with the
sentences to run consecutively.1 This court affirmed the judgment. Smith v. State, 286
Ark. 247, 691 S.W.2d 154 (1985).
A writ of habeas corpus is proper when a judgment of conviction is invalid on its
face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley, 2015 Ark.
465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who, as in this case, does
not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must
plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court
and 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). Unless the petitioner
in proceedings for a writ of habeas corpus can show that the trial court lacked jurisdiction
or that the commitment was invalid on its face, there is no basis for a finding that a writ of
habeas corpus should issue. Fields v. Hobbs, 2013 Ark. 416. Smith has made both such
showings because he demonstrated that his sentence was illegal.
A circuit court’s grant or denial of habeas relief will not be reversed unless the court’s
findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A finding
is clearly erroneous when, although there is evidence to support it, the appellate court is
1
It appears, from a copy of a corrected judgment appearing in the record as an exhibit
to Smith’s habeas petition, that the trial court amended the judgment in 1988 to reflect a
forty-year sentence for the aggravated-robbery charge. The judgment as it concerns the
robbery charge is not at issue here.
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left, after reviewing the entire evidence, with the definite and firm conviction that a mistake
has been committed. Id.
In Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283, this court acknowledged that,
under the holding in Graham, the Eighth Amendment forbids imposition of a sentence of
life without parole for a juvenile offender who did not commit homicide. It is clear from
the record in the direct appeal that Smith was a juvenile when he committed the rape for
which he was sentenced to life without parole. The state does not contest this and in fact
concedes he is entitled to relief from the illegal sentence. In denying Smith’s habeas petition,
the circuit court found that his sentence for the rape was not life without parole. The State
concedes in its brief that this finding was reversible error.2
In Arkansas, sentencing is entirely a matter of statute, and this court has consistently
held that sentencing shall not be other than in accordance with the statute in effect at the
time of the commission of the crime. Hale v. Hobbs, 2014 Ark. 405. In addition to the date
that was listed on the copy of the judgment attached to Smith’s habeas petition, the record
on appeal in CR-85-32 clearly establishes that December 31, 1976, was, as an adjudicated
fact, the date that the crime was committed in the rape case at issue, 55CR-77-1. Those
records are appropriate for judicial notice. See Bryant v. Hobbs, 2014 Ark. 287 (per curiam).
Under the controlling statute, Arkansas Statutes Annotated section 43-2807(b) (Repl.
1977), individuals who were sentenced to life imprisonment after the February 12, 1969
2
As the State notes, it is not clear from the circuit court’s order if this mistake resulted
from some confusion over the earlier order on Smith’s guilty plea, or whether the circuit
court incorrectly determined that the sentence imposed following retrial was life with
eligibility for parole.
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effective date of the implementing act are not eligible for release on parole unless the
sentence is commuted to a term of years by executive clemency. Smith was sentenced to a
term of life imprisonment for the rape charge on September 18, 1984, and he was therefore
not eligible for parole.
Lee County Circuit Court’s order denying Smith’s petition is accordingly reversed.
The State asks that we remand for the circuit court to issue the writ and allow a return
under the habeas procedure provided in our statutes, citing Hobbs v. Hodge, 2015 Ark. 207,
461 S.W.3d 704. This case is unlike Hodge, however, because all dispositive facts are not
only uncontested, but have been adjudicated, and this court is in a position to grant the
requested relief on the record before it without need for a return on the writ. This court
may raise an issue of an illegal sentence sua sponte, and it is obligated to correct an apparent
illegal sentence on review on appeal. Barber v. State, 2016 Ark. 54, 482 S.W.3d 314 (per
curiam) (citing Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003)).
Smith has established that he was a juvenile who was sentenced to life without parole
for an offense other than homicide and therefore that his sentence on the rape charge was
illegal under Graham. The rule in Graham applies retroactively to cases such as Smith’s. See
Montgomery v. Louisiana, 136 S. Ct. 718 (2016). This court has held that the proper remedy
for a Graham violation is reduction of the sentence from life to the maximum term-of-years
sentence allowed by law. Turner, 2014 Ark. 19, 431 S.W.3d 283; see also Proctor v. Hobbs,
2015 Ark. 42. Rape under the applicable statute was a class A felony. Ark. Stat. Ann. § 41-
1803 (Repl. 1977). As such, it was punishable by a term of imprisonment of not less than
five years, nor more than fifty years, or life. Ark. Stat. Ann. § 41-901(a) (Repl. 1977).
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Therefore Smith’s sentence on the rape charge in 55CR-77-1 must be reduced to a term
of fifty years’ imprisonment. We reverse the denial of the petition for habeas corpus and
issue the writ of habeas corpus and remand to the Pike County Circuit Court with
instructions for the court to modify the judgment in 55CR-77-1 to reflect a sentence of
fifty years’ imprisonment on Smith’s rape conviction.
Reversed; writ issued; remanded to Pike County Circuit Court in case no. 55CR-
77-1 with instructions.
Billy Ray Smith, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee
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