Clinton Flowers v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 20, 2001

CLINTON FLOWERS

Appellant

v.

LARRY NORRIS, Director,

Arkansas Department of Correction

Appellee

00-1049

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CIV 00-4251-3, HONORABLE FRED D. DAVIS III, JUDGE

AFFIRMED AS MODIFIED

In 1997, appellant pled guilty to kidnapping, aggravated robbery, and attempted capital murder. The trial court sentenced him to concurrent sentences of forty years' imprisonment for the aggravated robbery and attempted capital murder, and suspended imposition of sentence of twenty-five years' imprisonment for the kidnapping. In 2000, Appellant filed a pro se petition for writ of habeas corpus in the Jefferson County Circuit Court seeking to have the judgments vacated. The circuit court denied the petition, and this appeal ensued.

We have repeatedly held that a writ of habeas corpus will issue only if the commitment was invalid on its face or the committing court lacked jurisdiction. Meny v. Norris, 340 Ark. 418, 420, 13 S.W.3d 143, 144 (2000). A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case. Id. A writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial. Id. The remedy in such a case is direct appeal. A writ of habeas corpus will not be issued as a substitute for postconviction relief. Id. The petitioner must plead either thefacial invalidity or the lack of jurisdiction and make a "showing, by affidavit or other evidence, [of] probable cause to believe" he is so detained. Id. at 420, 13 S.W.3d at 144-45 (citing Ark. Code Ann. § 16-112-103 (1987)). A hearing is not required if the petition does not allege either of the bases of relief proper in a habeas proceeding, and, even if a cognizable claim is made, the writ does not have to be issued unless probable cause is shown. Id. at 420, 13 S.W.3d at 145.

Appellant claims that the Crittenden County Circuit Court lacked jurisdiction over the attempted capital murder charge. He contends that while he abducted his victim in West Memphis, Arkansas, the attempted murder occurred in Memphis, Tennessee, and therefore, only the State of Tennessee could have charged him with attempted capital murder. It is not essential, however, that all of the elements of the crime charged take place in Arkansas. Findley v. State, 307 Ark. 53, 59-60, 818 S.W.2d 242, 246 (1991). We have said it is generally accepted that if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. Id.

Appellant was charged with attempted capital murder pursuant to Ark. Code Ann. §§ 5-3-201(a)(2) and 5-10-101(a)(1) for taking substantial steps designed to culminate in the death of his victim under circumstances manifesting extreme indifference to the value of human life in the course of and in furtherance of committing kidnapping and robbery. It is undisputed that appellant and his co-defendants kidnapped the victim in West Memphis, Arkansas, and placed her in the trunk of her car, and that later, appellant alone drove her to Memphis, Tennessee, where he cut her throat, stabbed her twenty-seven times, and ran over her with the car. Accordingly, the Crittenden County Circuit Court had jurisdiction over the charge of attempted capitalmurder, and the circuit court did not err in denying relief on this claim.

Appellant also contends that his judgment and commitment is invalid on its face because his sentence of forty years' imprisonment for attempted capital murder exceeds the statutory maximum of thirty years' imprisonment. The State admits that the forty-year sentence for attempted capital murder exceeds that authorized by law.

As we stated in Meny, detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. 340 Ark. at 422, 13 S.W.3d at 146. American Jurisprudence 2d states the fundamental principle of law:

Challenges to the length of confinement are properly considered in the context of habeas corpus proceedings. Thus, the unlawful confinement of an individual under a sentence longer than that permitted by statute constitutes a denial of liberty without due process of law, and a petitioner alleging such confinement is entitled to seek habeas corpus relief under the Great Writ.

39 AM.JUR.2d § 66 (1999). The Great Writ provides protection for petitioners who are confined under sentences longer than that permitted by statute. Meny, 340 Ark. at 423, 13 S.W.3d at 146.

We agree that appellant is being illegally detained to the extent that his sentence for attempted capital murder is excessive. Arkansas Code Annotated § 5-3-203 (1) provides that criminal attempt is a Class A felony if the offense attempted is capital murder. A defendant convicted of a Class A felony shall receive a determinate sentence not less than six years nor more than thirty years. Ark. Code Ann. § 5-4-401 (a)(2). Accordingly, appellant's judgment and commitment order is modified to show a sentence of thirty years' imprisonment in the Arkansas Department of Correction for the crime of attempted capital murder.

Affirmed as modified.

Imber, J., not participating.