Wilkins v. State
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Cite as 2011 Ark. 169
SUPREME COURT OF ARKANSAS
No.
10-508
Opinion Delivered
RANDY WILKINS
Appellant
v.
LARRY NORRIS
Appellee
April 14, 2011
APPELLEE’S MOTION TO DISMISS
APPEAL AND APPELLANT’S PRO SE
MOTION TO FILE BELATED
APPEAL BRIEF [LINCOLN COUNTY
CIRCUIT COURT, LCV 2009-126,
HON. JODI RAINES DENNIS,
JUDGE]
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
In 1995, appellant Randy Wilkins was found guilty by a jury and sentenced to life
imprisonment without parole. Appellant, who was fifteen when the crime was committed,
appealed to this court, contending, among other issues, that the trial court erred by not
granting his motion to transfer the case to juvenile court. We affirmed. Wilkins v. State, 324
Ark. 60, 918 S.W.2d 702 (1996).
Appellant subsequently filed a pro se petition for writ of habeas corpus pursuant to
Arkansas Code Annotated § 16-112-103 (1987) in which he argued that the trial court lacked
jurisdiction because it did not hold a juvenile transfer hearing within ninety days as provided
by Arkansas Code Annotated § 9-27-318 (Repl. 1993). The petition was denied, and on
Cite as 2011 Ark. 169
appeal, this court held that the ninety-day requirement was not jurisdictional. Finding no
error in the court’s denial of the habeas petition, we affirmed the order. Wilkins v. State, CR
97-913 (Ark. Sept. 17, 1998) (unpublished per curiam).
In 2009, appellant sought a petition for writ of habeas corpus pursuant to Arkansas
Code Annotated §§ 16-112-101 to -123 (Repl. 2006) from the circuit court in the county
where he was incarcerated. Appellant again raised the issue of whether the trial court erred
by denying the transfer to juvenile court. He further argued that he was not afforded effective
assistance of counsel in the hearing on the motion to transfer to juvenile court. The petition
was denied, and appellant lodged an appeal in this court. As he did not timely file his brief-inchief, the appellee State has filed a motion to dismiss the appeal on that basis. In turn,
appellant filed a motion for belated appeal, which we treat as a motion to file a belated brief.
We need not address the merits of the motions because it is clear from the record that
appellant could not prevail on appeal. Accordingly, the appeal is dismissed because the appeal
is clearly without merit, and the motions are moot. An appeal from an order that denied a
petition for postconviction relief, including a petition for writ of habeas corpus, will not be
permitted to go forward where it is clear that the appellant could not prevail. Anderson v. State,
2011 Ark. 35 (per curiam); McCullough v. State, 2010 Ark. 394 (per curiam); Moore v. Hobbs,
2010 Ark. 380 (per curiam); Hutcherson v. State, 2010 Ark. 368 (per curiam); Washington v.
Norris, 2010 Ark. 104 (per curiam); Edwards v. State, 2010 Ark. 85 (per curiam); Pineda v.
Norris, 2009 Ark. 471 (per curiam).
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Cite as 2011 Ark. 169
Appellant failed to demonstrate in his petition that the writ was warranted. The burden
is on the petitioner in a petition for writ of habeas corpus to establish that the trial court
lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis
for a finding that a writ of habeas corpus should issue. Jackson v. Norris, 2011 Ark. 49, ___
S.W.3d ___; Moore, 2010 Ark. 380; Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006)
(per curiam). Under our statute, a petitioner who does not allege his actual innocence 1 must
plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court
and make a “showing by affidavit or other evidence, [of] probable cause to believe” that he
is illegally detained. Young at 221, 226 S.W.3d at 798–99; Ark. Code Ann. § 16-112103(a)(1).
Appellant’s contention that the trial court lacked jurisdiction in his case because his
motion to transfer the matter to juvenile court was denied is wholly without merit. As we
noted when appellant raised the issue in this court previously, the ninety-day requirement in
the statute is not jurisdictional. Wilkins, CR 97-913 (citing Cobbins v. State, 306 Ark. 447, 816
S.W.2d 161 (1991)). Appellant’s claim is rather one of trial error, and mere trial error, even
if established, is a matter to be addressed at trial. It is not grounds for habeas relief. Tryon v.
Hobbs, 2011 Ark. 76 (per curiam); see also Hill v. Norris, 2010 Ark. 287 (per curiam). A habeas
1
A petitioner who seeks a writ of habeas corpus and alleges actual innocence must do
so in accordance with Act 1780 of 2001 Acts of Arkansas, codified as Arkansas Code
Annotated sections 16-112-201 to -208 (Repl. 2006). Ark. Code Ann. § 16-112-103(a)(2)
(Repl. 2006).
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Cite as 2011 Ark. 169
corpus proceeding does not afford a convicted defendant an opportunity to retry his case, and
it is not a substitute for direct appeal. Key v. Norris, 2010 Ark. 61 (per curiam); Henderson v.
State, 2010 Ark. 30 (per curiam) (citing Meny v. Norris, 340 Ark. 418, 420, 13 S.W.3d 143,
144 (2000) (per curiam)). Jurisdiction is the power of the court to hear and determine the
subject matter in controversy. Anderson, 2011 Ark. 35; Baker v. Norris, 369 Ark. 405, 255
S.W.3d 466 (2007). A circuit court has subject-matter jurisdiction to hear and determine cases
involving violations of criminal statutes. Id. Mere trial error does not deprive a court of
jurisdiction. Tryon, 2011 Ark. 76; see also Birchett v. State, 303 Ark. 220, 795 S.W.3d 53
(1990).
With respect to appellant’s allegation that he was not afforded effective assistance of
counsel in the trial court, a claim of ineffective assistance of counsel is not cognizable in a
habeas proceeding. Tryon, 2011 Ark. 76; Grimes v. State, 2010 Ark. 97 (per curiam).
Allegations concerning counsel’s effectiveness are properly raised in a timely petition pursuant
to our postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (2010). Moore, 2010
Ark. 380; Hill, 2010 Ark. 287. A petition for writ of habeas corpus is not a substitute for
proceeding under Rule 37.1. Johnson v. Hobbs, 2010 Ark. 459 (per curiam); Rickenbacker v.
Norris, 361 Ark. 291, 206 S.W.3d 220 (2005).
Appeal dismissed; motions moot.
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