Charles Webster Smith v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-445

NOT DESIGNATED FOR PUBLICATION

CHARLES WEBSTER SMITH

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 9, 2005

APPEAL FROM THE CIRCUIT COURT OF CRITTENDEN COUNTY, NO. CR. 86-159-B, HONORABLE RALPH E. WILSON, JR., JUDGE

AFFIRMED

PER CURIAM

Appellant and his two co-defendants, Victor Lind Johnson and Sylvester Wilkins, were convicted of aggravated robbery. Appellant was sentenced to ninety-nine years' imprisonment. We affirmed. Wilkins v. State, 292 Ark. 596, 731 S.W.2d 775 (1987). In 2004, appellant filed a motion in the Circuit Court of Crittenden County to correct an illegal sentence pursuant to Ark. Code Ann. §16-90-111. The circuit court denied the motion because it was not timely filed pursuant to Ark. R. Crim. P. 37.2. From that order comes this appeal.

While we agree with the circuit court that the motion was untimely, the court is incorrect that the timeliness of the motion is governed by Rule 37.2. Appellant's motion was filed pursuant to Ark. Code Ann. §16-90-111; therefore, we affirm the denial of relief because appellant's motion was filed outside of the time period proscribed in §16-90-111 at the time of his conviction. This court has made it abundantly clear that we can affirm a decision by the trial court, albeit for a different reason. McCoy v. State, 347 Ark. 913, 924, 69 S.W.3d 430, 437 (2002).

When appellant was convicted in 1986, Ark. Code Ann. § 16-90-111 provided a narrow remedy whereby a sentence illegal on its face could be corrected at any time and a sentence imposed in an illegal manner could be corrected by the trial court within 120 days after sentence was imposed or after the judgment was affirmed.1 Appellant's sentence was imposed in 1986, and he did not file his petition until 2004. He therefore was not entitled to relief unless he demonstrated that the sentence imposed was illegal on its face. Williams v. State, 291 Ark. 255, 257, 724 S.W.2d 158, 158 (1987)(per curiam).

In his petition, appellant claimed that his ninety-nine year sentence was outside the statutory range because in order for him to serve the full ninety-nine years, he would have had to live to be "over 130-years old," which is "beyond what is commonly and medically accepted as the average life span of a human being." Appellant argues that the ninety-nine year sentence is "no less than a life sentence." The allegations raised by appellant are not sufficient to demonstrate that the sentence was invalid on its face. As a result, we cannot consider appellant's motion as it was filed outside of the statutory period.

Affirmed.

1 Effective January 1, 1991, Ark. R. Crim. P. 37 was amended to provide that all claims that a sentence is illegal or was illegally imposed must be raised in a timely petition under Rule 37.