John Robert Martin v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

November 1, 2001

JOHN ROBERT MARTIN

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-927

APPEAL FROM THE CIRCUIT COURT OF BENTON COUNTY, CR 89-556-1, HONORABLE TOM J. KEITH, JUDGE

AFFIRMED

In 1990, John Robert Martin was convicted of possession with intent to deliver marijuana in Benton County Circuit Court. He was sentenced to thirty years' imprisonment in the Arkansas Department of Correction and was fined $20,000. Appellant's direct appeal was initially dismissed on December 23, 1992, for failure to perfect the appeal. On August 19, 1998, the Court of Appeals granted appellant's motion to reinstate the appeal. It then affirmed appellant's conviction and sentence in an unpublished opinion. Martin v. State, CACR 91-280 (Ark. App. June 9, 1999). Petitions for rehearing and review were subsequently denied.

Following the issuance of the mandate on September 9, 1999, appellant filed a motion for reduction of sentence pursuant to Ark. Code Ann. § 16-90-111(b). The circuit court held a hearing on the matter and subsequently denied the appellant's motion, concluding that it was without jurisdiction to reduce a sentence pursuant to Ark. Code Ann. § 16-90-111. We agree and affirm.

Arkansas Code Annotated § 16-90-111(a) provides authority to a circuit court to correct an illegal sentence at any time and to correct a sentence imposed in an illegal manner within the time limits provided in Ark. Code Ann. § 16-90-111(b). See also Reeves v. State, 339 Ark. 304, 310, 5 S.W.3d 41, 44 (1999); Renshaw v. Norris, 337 Ark. 494, 500, 989 S.W.2d 515, 518 (1999). This statute was declared superseded by the time limitations in Ark. R. Cr. P. 37.2(c), which provides for postconviction relief while in custody. Reeves, 339 Ark. at 310, 5 S.W.3d at 44. Appellant does not contend, however, that he received an illegal sentence or a sentence imposed in an illegal manner, or that his claim is cognizable under Rule 37. Instead, he asserts that the circuit court possessed the power to reduce his sentence for any reason, including leniency and mercy as to him, pursuant to Ark. Code Ann. § 16-90-111(b).

Appellant's sentence fell within the limits set by the General Assembly for the offense. See Ark. Code Ann. §§ 5-64-401(a)(1)(iv)(b) and 5-64-408 (1987). Once a valid sentence has been put into execution the trial court is without jurisdiction to modify, amend, or revise it. Renshaw, 337 Ark. at 500??, 989 S.W.2d at 519. Furthermore, this court has previously decided that the power to exercise clemency and reduce sentences is vested in the chief executive of this State and not in the courts. Williams v. State, 320 Ark. 498, 500, 898 S.W.2d 38, 39 (1995). If the sentence fixed by the trial court is within the limits set by the legislature, we are not at liberty to reduce it even though we might think it unduly harsh. Id. We have carved out extremely narrow exceptions to this general statement of law: (1) where the punishment resulted from passion or prejudice, (2) where it was a clear abuse of the jury's discretion, or (3) where it was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Henderson v. State, 322 Ark. 402, 411-12, 910 S.W.2d 656, 660 (1995). Appellant does not contend that any of the exceptions apply to his case. Moreover, appellant's thirty year sentence and $20,000 fine for possession with intent to deliver over ten pounds of marijuana is not so wholly disproportionate to the nature of the offense as to shock the moral sense of the community when the maximum sentence that could have been imposed was forty years' imprisonment and a $100,000 fine. Appellant received a valid thirty year sentence and the circuit court possessed no power to reduce it pursuant to Ark. Code Ann. § 16-90-111(b). Accordingly, we affirm the circuit court's order.

Affirmed.