Atkins v. State

Cite as 2014 Ark. 393
SUPREME COURT OF ARKANSAS
No. CR-12-533
Opinion Delivered September 25, 2014
MARCUS TERRELL ATKINS PRO SE APPEAL FROM THE HOT
APPELLANT SPRING COUNTY CIRCUIT COURT
[NO. 30CR-07-102]
V.
HONORABLE CHRIS E WILLIAMS,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED.
PER CURIAM
In 2007, appellant Marcus Terrell Atkins was found guilty by a jury of first-degree battery,
kidnapping, being a felon in possession of a firearm, and use of a firearm in commission of a
felony. An aggregate sentence of 480 months’ imprisonment was imposed. The Arkansas Court
of Appeals affirmed. Atkins v. State, 2009 Ark. App. 124, 302 S.W.3d 635.
Subsequently, appellant timely filed in the trial court a pro se petition for postconviction
relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2007). The petition was denied.
No appeal was taken, and this court ultimately granted leave for appellant to proceed with a
belated appeal from the order. Atkins v. State, 2010 Ark. 392 (per curiam). On appeal, this court
affirmed the order of the trial court. Atkins v. State, 2011 Ark. 398 (per curiam).
In 2012, appellant filed in the trial court a pro se petition to correct an illegal sentence
pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2006), alleging that the trial
court erred by sentencing him, itself, to fifteen years’ imprisonment for commission of a felony
with a firearm pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2006) rather than
allowing the jury to determine if the sentence should be imposed. Appellant further alleged that
Cite as 2014 Ark. 393
his attorney was ineffective for failing to object to the court’s action. He sought to have the
fifteen-year sentence vacated on the ground that it was illegal. The trial court dismissed the
petition, and appellant brings this appeal.
This court has held that it will reverse the circuit court’s decision granting or denying
postconviction relief only when that decision is clearly erroneous. Paige v. State, 2013 Ark. 432
(per curiam); Pankau v. State, 2013 Ark. 162. A finding 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 committed. Sartin v. State, 2012 Ark. 155,
400 S.W.3d 494. We find no error and affirm the order.
First, appellant raised the claim of ineffective assistance of counsel concerning the trial
court’s decision not to submit the sentencing issue to the jury in his Rule 37.1 petition. On
appeal from the Rule 37.1 order, we held that appellant had not demonstrated that his attorney
was remiss, noting that one of appellant’s codefendants, Kyron Watkins, had raised the same
issue in his Rule 37.1 petition and we had affirmed the order denying relief in Watkins v. State,
2010 Ark. 156, 326 S.W.3d 910 (per curiam). Atkins, 2011 Ark. 398. Moreover, even if the issue
had not already been raised under Rule 37.1, section 16-90-111 does not provide a means to
mount a collateral challenge to a judgment on the ground of ineffective assistance of counsel.
Murphy v. State, 2013 Ark. 243 (per curiam).
With respect to appellant’s assertion that the trial court erred in not submitting the
sentencing issue to the jury, claims of mere trial error are not within the purview of section 16-
90-111 inasmuch as the statute does not provide a means to address trial error. See Gilliland v.
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State, 2014 Ark. 149 (per curiam) (Assertions of constitutional error were not cognizable under
section 16-90-111.). Trial error is a matter to be addressed during trial and on the record on
direct appeal from the judgment. Id.; Ybarra v. State, 2013 Ark. 423 (per curiam).
As to the claim that the sentence was illegal, a claim that a sentence is illegal presents an
issue of subject-matter jurisdiction that can be addressed at any time. Hill v. State, 2013 Ark. 291
(per curiam); Skinner v. Hobbs, 2011 Ark. 383 (per curiam); see Culbertson v. State, 2012 Ark. 112
(per curiam). Arkansas Code Annotated section 16-90-111(a) provides authority to a trial court
to correct an illegal sentence at any time. See Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999);
Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999). For that reason, the trial court had
authority to grant relief under the statute if the sentence imposed on appellant was indeed illegal.
Hodges v. State, 2013 Ark. 299 (per curiam).
Here, appellant did not claim that the fifteen-year sentence was outside statutory bounds.
Section 16-90-111(a) provides that any person convicted of any offense that is classified by the
laws of this state as a felon who employed any firearm of any character as a means of
committing or escaping from the felony, in the discretion of the sentencing court, may be
subjected to an additional period of confinement in the state penitentiary for a period not to
exceed fifteen years. Accordingly, the sentence was not excessive, and appellant did not
establish that it was illegal. Sentencing in Arkansas is entirely a matter of statute. State v. Colvin,
2013 Ark. 203, 427 S.W.3d 635; Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203. No sentence
shall be imposed other than as prescribed by statute. Maldonado v. State, 2009 Ark. 432. A void
or illegal sentence is one that is illegal on its face. Lovelace v. State, 301 Ark. 519, 785 S.W.2d 212
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(1990); Fritts v. State, 298 Ark. 533, 768 S.W.2d 541 (1989). A sentence is illegal on its face when
it exceeds the statutory maximum for the offense for which the defendant was convicted.
Lovelace, 301 Ark. 519, 785 S.W.2d 212; Fritts, 298 Ark. 533, 768 S.W.2d 541. If a sentence is
within the limits set by statute, it is legal. Grissom v. State, 2013 Ark. 417 (per curiam).
Affirmed.
Marcus Terrell Atkins, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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