Paul Avery Harris v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 9, 2002

PAUL AVERY HARRIS

Appellant

v.

STATE OF ARKANSAS

Appellee

01-1270

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, NO. CIV-2001-602-3, HONORABLE FRED D. DAVIS III, JUDGE

AFFIRMED

Appellant was convicted in the Circuit Court of Lincoln County of furnishing a prohibited article into the Cummins Unit of the Arkansas Department of Correction in violation of Ark. Code Ann. § 5-54-119 (Repl. 1999). He was sentenced as a habitual offender to forty years' imprisonment. This court affirmed his conviction and sentence. Harris v. State, CR 91-32 (Ark. May 9, 1991). Appellant filed a state habeas corpus petition in the Circuit Court of Jefferson County, which was denied because appellant had failed to state a ground upon which relief could be granted. On appeal, this court affirmed the circuit court's denial of appellant's petition. Harris v. Norris, CR 99-554 (Ark. Mar. 30, 2001).

Appellant filed a second habeas corpus petition with the Circuit Court of Jefferson County, in which he claimed that the trial court lacked jurisdiction because his sentence did not conform to the statutory maximum allowed for the charge and also that he was actually innocent. The State filed a motion to dismiss under Ark. R. Civ. P. 12(b)(6). The circuit court denied relief concludingthat appellant had failed to state a claim upon which habeas relief could issue. From that order comes this appeal.

As stated by the circuit court in its order, a writ of habeas corpus is only proper when it is shown either that a commitment is invalid on its face or that the circuit court lacked jurisdiction over the cause. See Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 484 (1989); see also Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989); George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985). Moreover, appellant must make a "showing, by affidavit or other evidence, [of] probable cause to believe" he is illegally detained. Ark. Code Ann. § 16-112-103 (1987). Appellant has made no such showing.

According to Ark. Code Ann. § 5-54-119 (Repl. 1999):

(a) A person commits the offense of furnishing a prohibited article if he knowingly:

(1) Introduces a prohibited article into a correctional facility ....

(2)(b) Furnishing or providing a weapon, intoxicating beverage, controlled substance, moneys, or any other items that would facilitate an escape or violence within a facility is a Class B felony. Otherwise furnishing a prohibited article is a Class C felony.

Appellant was convicted of furnishing marijuana, a controlled substance; therefore, his conviction was for a Class B, rather than a Class C felony. A Class B felony has a sentencing range of not less than five years nor more than twenty years. Ark. Code Ann. § 5-4-401(3) (1987). However, appellant was sentenced as a habitual offender with four or more prior felony convictions and was sentenced under Ark. Code Ann. § 5-4-501 (1987). Therefore, it is clear that appellant was properly sentenced. Appellant makes no showing that his commitment was invalid on its face nor that the circuit court that tried him lacked subject matter jurisdiction. See Wallace, supra. Accordingly, thecircuit court did not err in denying habeas relief.

Affirmed.