Millsap v. Kelley

Cite as 2016 Ark. 324
SUPREME COURT OF ARKANSAS
No. CV-16-404
Opinion Delivered: September 22, 2016
LEE CHARLES MILLSAP, JR.
APPELLANT PRO SE APPEAL FROM THE
V. LINCOLN COUNTY CIRCUIT
COURT
WENDY KELLEY, DIRECTOR, [NO. 40CV-15-106]
ARKANSAS DEPARTMENT OF
CORRECTION
APPELLEE HONORABLE JODI RAINES DENNIS,
JUDGE
AFFIRMED.
PER CURIAM
Appellant Lee Charles Millsap, Jr., filed a pro se petition for writ of habeas corpus in
the circuit court of the county where he was incarcerated.1 The circuit court dismissed the
petition, and Millsap lodged this appeal. On appeal, Millsap contends that the circuit court
erred in dismissing the petition because it failed to grant relief on his claim in the habeas
petition that a judgment of commitment sentencing Millsap to “life without parole” on a
capital-murder charge was facially invalid. We affirm the order dismissing the petition.
In 1998, Millsap entered negotiated guilty pleas in the Pulaski County Circuit Court
to charges of capital murder, first-degree terroristic threatening, and second-degree battery.
The judgment Millsap attached to the habeas petition reflects that Millsap received a
sentence of life without parole on the capital-murder charge. Millsap also attached to his
petition a copy of the docket listing for the trial court, which indicates that the death penalty
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As of the date of this opinion, Millsap remains incarcerated in Lincoln County.
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was waived. Millsap does not contest the judgment concerning the other charges, but he
contends, both in the petition and on appeal, that the trial court did not have authority
under the applicable statutes to enter a sentence of life without parole for the capital-murder
charge.
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, unless a petitioner for the writ alleges his actual
innocence and proceeds under Act 1780 of 2001 Acts of Arkansas, he is required to 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). A petitioner in proceedings
for a writ of habeas corpus must show that the trial court lacked jurisdiction or that the
commitment was invalid on its face, or there is no basis for a finding that a writ of habeas
corpus should issue. Fields v. Hobbs, 2013 Ark. 416.
Millsap alleged that the judgment was illegal on its face, and he contends that he has
shown probable cause for a finding of illegal detention because he has shown that the trial
court lost jurisdiction to impose the sentence when the State waived the death penalty.
Arkansas Code Annotated section 16-89-108(b) (Repl. 2005) states that, in those cases
where the death penalty has been waived, “punishment cannot be fixed at more than life
imprisonment.” Millsap asserts that the imposition of the sentence that he received, life
without parole, was barred by this statutory requirement. Millsap contends that, because he
can only be sentenced under that statute to life, his conviction must be void. Millsap alleges
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the sentence may not be reduced to a “life” sentence because, under Arkansas Code
Annotated section 5-10-101 (Repl. 1997), the only two possible sentences for a conviction
of capital murder are death or life imprisonment without parole. Millsap argues that this
conflict in statutory intent must be resolved in his favor, and that the sentence imposed was
in excess of that permitted.
The circuit court considering the habeas petition found that Millsap’s sentence was
within the statutory range for capital murder and that Millsap failed to demonstrate probable
cause for issuance of the writ. 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 left, after reviewing the entire evidence, with the definite and firm
conviction that a mistake has been committed. Id. On appeal, however, we consider any
statutory interpretation de novo and give no deference to the circuit court’s interpretation.
State v. Thomas, 2014 Ark. 362, 439 S.W.3d 690. In this case, the circuit court’s order was
not clearly erroneous, and, following clear precedent, its statutory interpretation was also
correct.
As the circuit court noted in its order, this court has considered this issue and rejected
Millsap’s argument. In Butler v. State, 261 Ark. 369, 549 S.W.2d 65 (1977), we noted that
the intermediate punishment of life imprisonment without parole did not exist when the
act codified by section 16-89-108 was passed. In construing any statute, we place it beside
other statutes relevant to the subject matter in question and ascribe meaning and effect to
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be derived from the whole. Thomas, 2014 Ark. 362, at 4, 439 S.W.3d at 692. Statutes
relating to the same subject must be construed together and in harmony, if possible. Id.
It is true that penal statutes are to be strictly construed, and all doubts are to be
resolved in favor of the defendant. State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635. Even
a penal statute, however, must not be construed so strictly as to defeat the obvious intent of
the legislature. Id. As we concluded in Butler, the two statutes here can be read in harmony.
The legislature’s intent in section 16-89-108(b) was clearly that, once waived, the waiver
could not be disregarded and the death penalty imposed. It was not, as Millsap contends,
the legislature’s intent to prohibit any imposition of the only permissible alternative sentence
under section 5-10-101, life imprisonment without parole. Accordingly, the circuit court
did not err in declining to grant relief on the claim in the habeas petition.
Affirmed.
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