Lonnie Mitchell v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JULY 9, 2001

LONNIE MITCHELL

Appellant

v.

LARRY NORRIS, Director, Arkansas Department of Correction

Appellee

99-1243

APPEAL FROM THE CIRCUIT COURT OF LINCOLN COUNTY, CR 99-56-3, HONORABLE FRED D. DAVIS III, CIRCUIT JUDGE

AFFIRMED

Appellant is serving two life sentences plus forty years for kidnapping, rape, and first-degree battery. We affirmed appellant's conviction and sentence in Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989). In 1999, appellant filed a petition for a writ of habeas corpus in the Lincoln County Circuit Court. The circuit court denied the petition, concluding that appellant had failed to state a claim upon which a writ of habeas corpus could issue. We affirm.

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). On appeal, appellant argues that the information charging him with rape was defective; thus, the trial court lacked jurisdiction.

The record before us indicates that appellant never objected prior to trial to the form of the information. Since our decision in State v. Eason & Fletcher, 200 Ark. 1112, 143 S.W.2d 22 (1940),we have consistently held that the proper time to object to the form or sufficiency of an indictment or information is prior to trial. See Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991); England v. State, 234 Ark. 421, 352 S.W.2d 582 (1962); Ark. Code Ann. § 16-85-705 (1987). We have declined to review the sufficiency of an information on appeal when there was no proper objection in the court below. Prince, supra. If we considered the issue to be jurisdictional, we could have overlooked the failure to object and reversed the conviction, if necessary, on our own motion. See Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). However, the subject matter jurisdiction of the trial court is not implicated when the sufficiency of the information is questioned, and appellant is not entitled to habeas corpus relief.

Appellant also contends that the commitment order was facially invalid because it showed that appellant had five prior convictions when, in fact, he did not receive a sentencing hearing to establish the prior convictions. Appellant's claim pertains to the manner in which appellant's sentence was imposed and in no way reflects on the facial validity of the commitment order. Therefore, this issue is not cognizable in a habeas corpus proceeding. In addition, appellant has failed to abstract any evidence that would establish that the commitment order was invalid.

As indicated above, appellant has not demonstrated that the commitment order is invalid on its face, nor has he shown that the court that tried him lacked subject matter jurisdiction. See Renshaw v. State, 337 Ark. 494, 989 S.W.2d 515 (1999). Accordingly, the trial court did not err in denying habeas relief.

Affirmed.