David A. Kelly v. Larry Norris

ARKANSAS SUPREME COURT

No. 03-1295

NOT DESIGNATED FOR PUBLICATION

DAVID A. KELLY

APPELLANT

v.

LARRY NORRIS

APPELLEE

Opinion Delivered April 28, 2005

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CV 2002-1005-5, HON. FRED D. DAVIS, III, JUDGE

AFFIRMED.

PER CURIAM

On November 9, 1998, David A. Kelly entered a guilty plea in Lawrence County Circuit Court to one count of incest and was sentenced to twenty-five years' imprisonment in the Department of Correction. As a part of the plea agreement, the State moved during the hearing to nol pros a count of rape of a child of less than thirteen, a count of rape by force and a count of third degree battery. Kelly filed a petition seeking postconviction relief under Ark. R. Crim. P. 37.1, which was denied, and later dismissed on appeal because the petition was not timely. Kelly v. State, CR 99-552 (July 1, 1999). Kelly appears to have then successfully pursued a petition for habeas corpus, resulting in a writ of habeas corpus being issued in the county in which he was incarcerated, because the trial court in Lawrence County on February 15, 2001, issued a writ of habeas corpus ad prosequendum to produce Kelley for a new trial. On February 16, 2001, the prosecuting attorney filed a new information charging Kelly with incest, third degree battery, and two counts of rape.

Following a jury trial, a judgment and commitment order was entered August 21, 2001. That judgment reflects that Kelly was convicted of the two counts of rape, incest (with a notation "vacated -see addendum to judgment"), and battery in the third degree. Kelly was sentenced by the jury to twenty years' imprisonment for each of the rape charges, and one year of imprisonment for the battery charge, all to run concurrently. The note attached to the judgment and signed by the judge indicates the Jefferson County Circuit Court granted a writ of habeas corpus in the case on the grounds that the sentence was illegal, and the defendant was retried on the original charges. The addendum further indicates that the incest charge was vacated on double jeopardy grounds.

Kelly appealed the conviction, and this court affirmed in Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). Kelly then filed a pro se petition for writ of habeas corpus in Jefferson County Circuit Court, where he was incarcerated, and the writ was denied. The court found that the claims raised by the petitioner were not sufficient to demonstrate that the commitment was invalid or that the court lacked jurisdiction, and held petitioner had failed to state a claim upon which habeas corpus relief could issue. Appellant now brings this appeal of that order. We note here that, although there are references to it, and appellant's brief indicates it was entered November 15, 2000, the record before us does not contain the order that granted appellant's first habeas corpus petition.

Appellant brings two points on appeal: (1) that the court erred in failing to find the trial court lacked jurisdiction to retry him because he had only sought resentencing in his original habeas corpus petition; (2) that the trial court and prosecuting attorney violated due process by retaliating against him by refiling all charges after the writ of habeas corpus was issued in 2000 and trying the case. We find no error and affirm the circuit court's decision to deny habeas corpus relief.

A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Davis v. Reed, 316 Ark. 575, 577, 873 S.W.2d 524, 525 (1994). A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case, and is not a substitute for direct appeal or postconviction relief. Meny v. Norris, 340 Ark. 418, 420, 13 S.W.3d 143, 144 (2000). However, this court has recognized that allegations of a void or illegal sentence are appropriate for writs of habeas corpus since they are treated similarly to problems of subject-matter jurisdiction. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003).

Appellant argues first that the trial court in Lawrence County lacked jurisdiction to do more than reduce his sentence to the maximum permitted for the offense in his original judgment. He asserts double jeopardy should have prevented any retrial, and the Jefferson County Circuit Court should therefore have found the trial court did lack jurisdiction. As the State notes in its brief, this court has previously found that a question of former jeopardy did not raise a question of jurisdiction for purposes of habeas corpus relief. Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989). While we do not have benefit of the order before us granting habeas corpus relief on his first such petition, appellant raises no question of subject matter or personal jurisdiction being proper in the trial court. So, the next question that arises is whether the facts in this case raise the double jeopardy issue to one of a void or illegal sentence.

The United States Supreme Court has recognized that where a plea agreement was violated, double jeopardy does not bar a new trial on the original, higher charge. Ricketts v. Adamson, 483 U.S. 1 (1987). The Court in Ricketts indicated a defendant is not relieved from the consequences of his voluntary choice if he deliberately seeks to terminate the proceedings against him on a basis unrelated to factual guilt or innocence, and he is then returned to the position he occupied prior to execution of his plea bargain. Here, appellant voluntarily sought relief for an improper sentence, and the consequences were a new trial on the original charges filed. We find that to retry the case under the circumstances presented here did not result in a double jeopardy violation.

Since we conclude double jeopardy was not a bar to correcting the sentence through a new trial, appellant is left with his argument on this point that because he specifically requested only a reduction to the maximum sentence for the offense, the court was without authority to order a more appropriate remedy to correct his sentence. Appellant contends the trial court had no authority, and therefore no jurisdiction, to retry the case because the remedy should have been limited to a reduction of the sentence. As noted, we do not have the benefit of the order granting that relief. It is the responsibility of the appellant to bring a record to this court sufficient for our review of the issues presented. See e.g., Jones v. Flowers, ___Ark.___, ___S..W.3d___(November 18, 2004). We do not know what was provided in the order issued, but we recognize that to correct a sentence where a plea agreement was in place, a court generally will find it necessary and appropriate to return the defendant to the position he occupied prior to the plea agreement. Judicial regard for fairness and the integrity of the plea bargaining process require the conclusion that a defendant should expect to be, and may legitimately be exposed to the original charges filed against him following a successful challenge to his plea. Appellant has presented no evidence or reason for us to conclude this general rule should not apply to his situation.

Further, we note that appellant could have, but did not appeal the order granting habeas corpus relief in 2000, nor did he raise this issue on appeal of the trial or in a petition for postconviction relief. A writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial. Meny v. Norris at 420, 13 S.W.3d at 144. Moreover, as the State correctly states in its brief, appellant cites no authority for this position. We will not consider an argument when the appellant does not provide authority or convincing argument in support of it and when it is not apparent without further research that the argument is well taken. Rikard v. State, 354 Ark. 345, 123 S.W.3d 114 (2003).

Appellant's second point asserts a due process violation alleging vindictiveness in retaliation for appellant's pursuing correction of his sentence. Appellant bases this position on his claim that the prosecutor refiled all original charges, and then the trial court tried appellant on those same charges, as a penalty for the success of his initial habeas corpus petition. The alleged misconduct, both the prosecutor's and the trial court's, flows from the prosecutor's action in filing the new indictment.

We have recognized two methods whereby a criminal defendant may establish a claim for prosecutorial vindictiveness. First, the defendant may establish actual vindictiveness by proving objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do. Next, a criminal defendant may contend that there is a presumption of vindictiveness when a prosecutor substitutes a more serious charge for an original charge, thus subjecting the criminal defendant to a potentially increased period of incarceration following the defendant's exercise of his right to appeal. Townsend v. State, 355 Ark. 248, 134 S.W.3d 545 (2003).

Appellant does not alleged actual vindictiveness. Appellant, however, does cite North Carolina v. Pearce, 395 U.S. 711 (1969), Chaffin v. Stynchombe, 412 U.S. 17 (1973), and Blackledge v. Perry, 417 U.S. 21 (1974), for his contention that a presumption exists here and the prosecutor in this case has a burden to show proof the charges were filed without vindictiveness. Those decisions simply do not support that stance. We discussed Pearce and its progeny, including Blackledge, in Gardner v. State, 332 Ark. 33, 963 S.W.2d 590 (1998). Gardner quoted Alabama v. Smith, 490 U.S. 794 (1989), for the ruling that there is no basis for a presumption of vindictiveness where a second sentence imposed after trial is heavier than a first sentence imposed after a guilty plea. Gardner at 44, 963 S.W.2d at 596. Assuming, as appellant asserts, that the sentence after trial here were harsher, there would still be no basis for a presumption of prosecutorial vindictiveness.

The Court in Blackledge found a presumption under the circumstances of that case, but emphasized that the prosecutor had substituted a harsher charge for the original charges filed. 417 U.S. at 28. We conclude that, when the defendant has successfully challenged the resulting sentence, there is no presumption of prosecutorial vindictiveness where the prosecutor merely reinstates the indictment that was in effect before a defendant entered a guilty plea pursuant to a plea agreement. Without a presumption of vindictiveness, appellant's argument fails. He has not shown an invalid or void sentence, that the judgment is invalid on its face, or that the trial court lacked jurisdiction. The circuit court correctly determined that appellant was not entitled to habeas corpus relief.

Affirmed.