John Wayne Sims v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

June 21, 2001

JOHN WAYNE SIMS

Appellant

v.

LARRY NORRIS, DIRECTOR,

ARKANSAS DEPARTMENT

OF CORRECTION

Appellee

01-374

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF LINCOLN COUNTY, NO. LCIV 00-95-3, HON. FRED DAVIS, JUDGE]

MOTION DENIED AND APPEAL DISMISSED

In 1995, John Wayne Sims entered a plea of nolo contendere to multiple felony offenses and was sentenced to an aggregate term of eighty-five years' imprisonment. In 2000, Sims filed in the circuit court in the county in which he was incarcerated a petition for writ of habeas corpus. The petition was denied, and the record on appeal from that order has been lodged here. Appellant Sims now requests an extension of time to file the appellant's brief.

It is well settled that the burden is on the petitioner in a habeas corpus action to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). The petitioner must plead either the facial invalidity of the commitment or the lack of jurisdiction and make a "showing, by affidavit or other evidence, [of] probable cause to believe" he is illegally detained. Ark. Code Ann. 16-112-103 (1987). See Wallacev. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989).

Appellant contended in the petition for writ of habeas corpus that the judgment of conviction was invalid and the trial court lacked jurisdiction because he pleaded nolo contendere to possession of a controlled substance with intent to deliver but the judgment reflected that he was convicted of delivery of a controlled substance. Appellant was charged in the felony Information, however, with delivery of a controlled substance and the judgment reflected that he had been found guilty of that charge upon entry of the plea of nolo contendere. Wallace, supra, presented an issue similar to that raised by appellant in his habeas petition. In Wallace, the petitioner contended that she had not pleaded guilty to one of the charges that appeared on the judgment of conviction. We held that a petition for writ of habeas corpus is not available to question the validity of a conviction where a plea of guilty was accepted in a court which had jurisdiction. Review is limited where the court had jurisdiction, as it did in Wallace and as it did in appellant Sims's case, to whether the judgment is invalid on its face. There is nothing to indicate on the face of the judgment entered in the instant case that any of the three convictions reflected on the judgment, including the delivery of a controlled substance conviction of which appellant complained, was invalid.

Appellant's motion for an extension of time is denied and the appeal dismissed as it is clear that the appellant could not succeed on appeal. 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); Reedv. 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).

Motion denied and appeal dismissed.