Esry v. State (Concurring)
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Cite as 2014 Ark. 265 SUPREME COURT OF ARKANSAS No. CR-14-31 Opinion Delivered May 29, 2014 MATTHEW ESRY APPELLANT APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT [NO. 30CR-11-16] V. HONORABLE CHRIS E WILLIAMS, JUDGE STATE OF ARKANSAS APPELLEE CONCURRING OPINION. JOSEPHINE LINKER HART, Associate Justice I concur in our decision to grant Matthew Esry s motions for access to the record on appeal to prepare his brief and for an extension of brief time. Here, the appeal cannot be said to be wholly without merit; therefore, access to the record for briefing is proper. Esry entered a plea of guilty to second-degree battery, which is a Class D felony. Ark. Code Ann. § 5-13-202(b) (Repl. 2013). A Class D felony is punishable by a sentence that shall not exceed six years. Ark. Code Ann. § 5-13-401(a)(5) (Repl. 2013). In open court, Esry agreed to a sentence of eight years imprisonment as a habitual offender. The written judgment and commitment order, however, did not show that he was sentenced as a habitual offender. Esry filed a petition seeking relief under Arkansas Code Annotated section 16-90111(a) (Supp. 2013). In denying Esry s motion to correct the sentence, the circuit court found that the motion was untimely and it therefore did not have jurisdiction. Sentencing in Arkansas is entirely a matter of statute, and where the law does not Cite as 2014 Ark. 265 authorize the particular sentence imposed by a circuit court, the sentence is unauthorized; an illegal imposition of a void or illegal sentence is subject to challenge at any time. Whiteside v. State, 2013 Ark. 176, at 4, ___ S.W.3d ___, ___. A circuit court is without jurisdiction to modify, amend, or revise a valid sentence once it has been put into execution. See, e.g., Rudrud v. State, 2010 Ark. 439, at 2 (per curiam). A claim that a sentence is illegal, however, presents an issue of subject-matter jurisdiction that can be addressed at any time, and section 16-90-111(a) provides authority to a circuit court to correct an illegal sentence at any time. See, e.g., Hill v. State, 2013 Ark. 291, at 1 2 (per curiam). I simply note that when a sentence is void or illegal, a challenge to the sentence may be raised at any time, and the interests of justice dictate that an appellant must have access to the record in order to prepare a brief. 2
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