Richard Dale Lackie v. State of Arkansas

ARKANSAS SUPREME COURT

No. 05-983

NOT DESIGNATED FOR PUBLICATION

RICHARD DALE LACKIE

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered November 3, 2005

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF LINCOLN COUNTY, LCV 2005-16-5, HON. ROBERT WYATT, JR., JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

Richard Dale Lackie, an inmate in the custody of the Arkansas Department of Correction, filed in the circuit court in the county in which he was incarcerated a pro se petition for writ of habeas corpus. The petition was denied, and the record has been lodged here on appeal. Appellant now seeks an extension to file his brief.

We need not consider the motion as it is apparent that appellant could not prevail in this appeal if it were permitted to go forward because he failed to demonstrate a ground for the writ. Accordingly, the appeal is dismissed. The motion is moot.

This court has consistently held that an appeal of the denial of postconviction relief, including an appeal from an order that denied a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that the appellant could not prevail. Purdue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam).

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) (per curiam). The petitioner must plead either a 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). See also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Appellant, who stated in the habeas petition that he entered a plea of guilty, asserts that the trial court was not allowed to enhance a sentence beyond the statutory maximum without the matter being presented to a jury. Appellant failed to append to the habeas petition a copy of the judgment of conviction being challenged or otherwise substantiate his claim. No affidavit or other evidence of probable cause to support the assertion was presented to the court. There was also no applicable authority presented to demonstrate that only a jury may enhance a sentence.

In light of the lack of substantiation of the allegations in the petition and the lack of authority, it cannot be said that appellant established that the commitment was invalid on its face or that the trial court was without jurisdiction. Clearly, appellant failed to meet his burden of showing by affidavit or other evidence of probable cause to believe that he was illegally detained.

Appeal dismissed; motion moot.