Kindall v. State

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 18, 2001

KENNETH RAY KINDALL

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-906

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CR 86-407-2-3, HON. FRED DAVIS, JUDGE

MOTION DENIED

In 1986, Kenneth Ray Kindall was found guilty by a jury of burglary, aggravated robbery, and rape. He was sentenced to an aggregate term of imprisonment of life and twenty years. We affirmed. Kindall v. State, 292 Ark. 173, 729 S.W.2d 1 (1987). In 1996, Kindall filed a petition here seeking relief pursuant to our postconviction rule, Criminal Procedure Rule 37.1 The petition was denied. Kindall v. State, CR 86-222 (March 3, 1997).

In 1999, Kindall filed in the trial court a petition pursuant to Ark. Code Ann. 16-90-111

seeking to correct the sentence imposed in 1986, alleging that it was illegal. The trial court deniedrelief on May 23, 2000. An appeal was not perfected, and Kindall now seeks leave to proceed with a belated appeal. We need not consider petitioner Kindall's reasons for failing to perfect the appeal because the petition filed in the trial court was untimely, and this court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Arkansas Code Annotated § 16-90-111, as applied to a defendant convicted in 1986, permitted the trial court to correct a sentence imposed in an illegal manner within 120 days after judgment was entered and to correct at any time a sentence illegal on its face. Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986).2 Appellant did not file his petition for postconviction relief until approximately thirteen years after the judgment of conviction was entered.

Petitioner asserted that the statutes under which he was found guilty were unlawful. The attack on the illegality of the statutes does not demonstrate that the sentence, which was within statutory range, was illegal on its face; thus, the trial court did not err when it denied the petition.

Motion denied.

1 Prior to July 1, 1989, a petitioner whose judgment of conviction had been affirmed on appeal was required to petition this court for relief under Criminal Procedure Rule 37 and gain leave from this court to proceed under the rule in the circuit court before filing a petition there. The rule was revised effective January 1, 1991, to allow all petitioners to file for postconviction relief directly in the trial court without having first garnered permission from this court.

2 Criminal Procedure Rule 37 was revised effective January 1, 1991, to provide that a claim that a sentence was illegal or imposed in an illegal manner must be raised under Rule 37. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 979 S.W.2d 458 (1990). This provision had the effect of limiting the remedy provided under Ark. Code Ann. § 16-90-111 for those persons convicted after January 1, 1991. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994).