Roy LeJohn Parham v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

SEPTEMBER 20, 2001

ROY LEJOHN PARHAM

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-451

PRO SE MOTION TO FILE A BELATED BRIEF [CIRCUIT COURT OF OUACHITA COUNTY, NO. CR 99-25, HON. CAROL CRAFTON ANTHONY, JUDGE

MOTION DENIED AND APPEAL DISMISSED

On July 21, 1999, judgment was entered reflecting that Roy LeJohn Parham had pleaded guilty to aggravated robbery and had been sentenced to a term of 120 months' imprisonment. Imposition of an additional 60 months' imprisonment was suspended. On February 21, 2001, Parham filed in the trial court a pro se petition for writ of habeas corpus and for reduction of sentence pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1999). The court denied the petition, and the record has been lodged here on appeal. Now before us is a motion filed by appellant Barham seeking leave to file a belated brief.

Because we find that the trial court did not err when it denied relief, we deny the motion and dismiss the 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 appeal is wholly without merit. 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).

With respect to appellant's claim that a writ of habeas corpus should issue, he did not state a ground to warrant the writ. Unless a petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, 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 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 Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989).

Appellant argued that: (1) his attorney was ineffective; (2) his Constitutional right against self-incrimination was violated; and (3) he was not properly advised of his Miranda rights when interrogated by the sheriff's office. As the allegations did not present a challenge to the trial court's jurisdiction or the validity of the commitment itself, the circuit court did not err when it declined to issue the writ.

With respect to the invocation of Ark. Code Ann.§ 16-90-111 (Supp. 1995) to reduce the sentence, the petition filed in the trial court was not timely filed and thus appellant was procedural barred from proceeding under the statute. Criminal Procedure Rule 37.2 (b) has superseded Ark. Code Ann. § 16-90-111 (Supp. 1999). Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). Rule 37 provides that all grounds for postconviction relief, including the assertion that the petitioner is entitled to a reduction of sentence because the sentence is illegal or illegally imposed, must be raised in apetition under the rule filed within ninety days of entry of judgment pursuant to a plea of guilty. The appellant here did not file his petition challenging the judgment within the ninety-day period set by Rule 37. The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on a untimely postconviction petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Motion denied and appeal dismissed.