Vincent Hussey v. State of Arkansas

Cite as 2023 Ark. 33SUPREME COURT OF ARKANSAS
No. CR-22-580
Opinion Delivered: March 9, 2023
VINCENT HUSSEY
APPELLANT PRO SE APPEAL FROM THE DREW
COUNTY CIRCUIT COURT
[NO. 22CR-96-34]
V.
HONORABLE CREWS PURYEAR,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED.
RHONDA K. WOOD, Associate Justice
On appeal, Vincent Hussey contends the trial court erred in finding his pro se
petition to correct an illegal sentence was both untimely and without merit. He argues
Arkansas law imposes no time restriction on raising the following claim: that his capital-
murder sentence was illegal because he was never sentenced for aggravated robbery, the
underlying felony. He asks this court to vacate his capital-murder conviction and remand
his case to the trial court for resentencing on both his capital-murder and aggravated-robbery
convictions. We decline and affirm the trial court’s decision.
In 1996, Hussey and others were charged with capital murder in furtherance of an
aggravated robbery. A Drew County jury convicted Hussey of capital murder and
aggravated robbery and sentenced him to life imprisonment without parole. The trial
transcript reveals that the trial court merged the aggravated robbery with capital murder for
sentencing after Hussey’s attorney moved for merger and the State agreed. The sentencing
procedure was not challenged on direct appeal, and Hussey’s conviction was affirmed.
Hussey v. State, 332 Ark. 552, 966 S.W.2d 261 (1998). The mandate issued on May 5, 1998.
Hussey v. State, CR-97-450 (Ark. May 5, 1998).1 Almost twenty-four years later, Hussey
petitioned to correct an illegal sentence. The trial court denied the petition as untimely and
without merit. Hussey then filed this appeal.
We will not reverse a trial court’s decision to deny relief pursuant to Arkansas Code
Annotated section 16-90-111(a) (Repl. 2016) unless it is clearly erroneous. Smith v. State,
2021 Ark. 131, at 2. A finding is clearly erroneous when the appellate court, after reviewing
the entire evidence, is left with the definite and firm conviction that a mistake has been
made. Id.Arkansas Code Annotated section 16-90-111(a) gives a trial court authority to correct
an illegal sentence at any time. An illegal sentence is one that is facially illegal. Mister v. State,
2022 Ark. 35, at 6, 639 S.W.3d 331, 335. A facially illegal sentence is void because the
sentence exceeds the maximum term prescribed by law or exceeds the court’s subject-matter
jurisdiction. Id. Sentencing is entirely a matter of statute in Arkansas. Id. The petitioner
seeking relief under section 16-90-111(a) carries the burden of proving that his or her
sentence was illegal. Id. In contrast, a petitioner may challenge the way a sentence was
imposed only within a limited time frame. In 1998, that was 120 days after receipt of the
1
While this court did not reference the merger on his direct appeal, we did reference
the merger in his co-defendant’s case, who likewise was not sentenced for aggravated
robbery. See Harris v. State, 331 Ark. 353, 354, 961 S.W.2d 737, 738 (1998). Harris, fifteen
at the time of the murder and aggravated robbery, has been afforded resentencing on his
capital-murder conviction because of Miller v. Alabama, 567 U.S. 460 (2012). Harris v. State,
2018 Ark. 179, 547 S.W.3d 64.
2
mandate following affirmance or dismissal of the direct appeal. Ark. Code Ann. § 16-90-
111(b) (Supp. 1995).2
The trial court was correct that Hussey’s petition to correct an illegal sentence was
untimely and meritless. Hussey alleges that he should have been sentenced for both the
capital murder and the aggravated robbery. The State concedes that he could have been
sentenced for both, but that it was not required. In 1995, the General Assembly amended
Arkansas Code Annotated section 5-1-110(d)(1) to “authorize” separate convictions and
sentences for certain crimes, including capital murder and any underlying felonies used as
the basis for the capital murder. Act 657 of 1995, § 2; see also Walker v. State, 353 Ark. 12,
21, 110 S.W.3d 752, 757–58 (2003). But the statute says the separate sentences “are
authorized,” not that they are required. Id. And Hussey’s sentence did not exceed the
statutory maximum. He received the minimum sentence for capital murder—life
imprisonment without parole—and received less than the minimum for aggravated robbery
in that he received no sentence. See Ark. Code Ann. § 5-10-101(c) (Supp. 1995).
Because these were not facially illegal sentences, Hussey can argue only that his
sentence was imposed in an illegal manner. But twenty-four years exceeds the time to
challenge how those sentences were imposed under the limits in place in 1998.
Affirmed.
Vincent J. Hussey, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.
2
Section 16-90-111(b)(1) has now been superseded by Rule 37.2(c). Rule 37.2(c)(ii)
requires that a petition seeking relief under the Rule must be brought within sixty days
following issuance of the mandate on direct appeal from the judgment of conviction.
3