Pennington v. Hobbs , 497 S.W.3d 186 ( 2014 )

Cite as 2014 Ark. 441SUPREME COURT OF ARKANSAS
No. CV-13-115
FREDERICK PENNINGTON, JR. Opinion Delivered October 23, 2014
APPELLANT
PRO SE PETITION FOR REHEARING
V. [JEFFERSON COUNTY CIRCUIT
COURT, NO. 35CV-12-671]
RAY HOBBS, DIRECTOR, ARKANSAS HONORABLE JODI RAINES DENNIS,
DEPARTMENT OF CORRECTION JUDGE
APPELLEE
PETITION FOR REHEARING
TREATED AS PETITION FOR
RECONSIDERATION AND
GRANTED; DENIAL OF PETITION
FOR WRIT OF HABEAS CORPUS
REVERSED; WRIT OF HABEAS
CORPUS ISSUED; REMANDED TO
THE JEFFERSON COUNTY CIRCUIT
COURT WITH INSTRUCTIONS.
PER CURIAM
Now before the court is a pro se petition for rehearing filed by appellant Frederick
Pennington, Jr. The petition, properly treated as a petition for reconsideration, concerns our
decision of September 4, 2014, dismissing appellant’s appeal from the denial of habeas relief,
denying his petition for habeas relief filed directly in this court, and finding his remaining
motions to be moot. See Pennington v. Hobbs, 2014 Ark. 356, ___ S.W.3d ___ (per curiam). In
light of our decision in Hale v. Hobbs, 2014 Ark. 405, ___ S.W.3d ___, we grant appellant’s
petition for reconsideration.1
1
Appellant and Billy Ray Hale were co-defendants in Pulaski County Circuit Court Case
Nos. 60CR-77-1933, 60CR-77-1934, and 60CR-77-1939. Like appellant, Hale appealed to this
court from the denial of habeas relief. On appeal, we reversed and remanded on the ground that
Cite as 2014 Ark. 441On reconsideration, we find that the sentencing orders entered against appellant are
facially invalid. While the specific issue was not raised by appellant, issues concerning a void or
illegal sentence are akin to subject-matter jurisdiction and cannot be waived by either party.
Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003) (citing Flowers v. State, 347 Ark. 760, 68
S.W.3d 289 (2002)). This court may review a void or illegal judgment sua sponte regardless of
whether the issue is raised by a party. See Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).
As we noted in Hale, sentencing in Arkansas is entirely a matter of statute, and this court
has consistently held that sentencing shall not be other than in accordance with the statute in
effect at the time of the commission of the crime. Hale, 2014 Ark. 405, ___ S.W.3d ___. When
the law does not authorize the particular sentence pronounced by a circuit court, that sentence
is unauthorized and illegal, and the case must be reversed and remanded. Id.Here, appellant entered a negotiated plea of guilty in the Pulaski County Circuit Court
to one count of first-degree murder and four counts of aggravated robbery, and he was
sentenced to life imprisonment for each of the charges. At the time the crimes were committed,
first-degree murder and aggravated robbery were classified as Class A felonies. Ark. Stat. Ann.
§§ 41-1502(3), 41-2102 (Repl. 1977). A Class A felony was punishable by “not less than five
years nor more than fifty years, or life.” Ark. Stat. Ann. § 41-901. The sentencing orders
entered in appellant’s case referred to appellant’s parole eligibility after serving one-third of his
life sentences. However, under Arkansas Statutes Annotated section 43-2807(b)(1), which was
the sentencing orders were facially invalid. Specifically, we held that the circuit court exceeded
its authority by entering a sentence of life imprisonment with the possibility of parole. The
sentencing orders entered against appellant are identical to those entered against Hale.
2
Cite as 2014 Ark. 441in effect at the time the crimes were committed, “[i]ndividuals sentenced to life imprisonment
prior to March 1, 1968, and those sentenced to life imprisonment after the effective date
[February 12, 1969] of this Act, shall not be eligible for release on parole unless such sentence
is commuted to a term of years by executive clemency.” Thus, parole-eligibility was not
authorized by the statute in effect at the time the crimes were committed, and the sentencing
orders entered against appellant are facially invalid.
Because the Pulaski County Circuit Court exceeded its authority in sentencing appellant
to life imprisonment with the possibility of parole, we reverse the denial of the petition for writ
of habeas corpus, issue the writ, and remand to the Jefferson County Circuit Court with
instructions to transfer the case to the Pulaski County Circuit Court for resentencing. The
remaining motions and petition of which we disposed in Pennington, 2014 Ark. 356, ___ S.W.3d
___ (per curiam) are moot.
Pro se petition for rehearing treated as petition for reconsideration and granted; denial
of petition for writ of habeas corpus reversed; writ of habeas corpus issued; remanded to the
Jefferson County Circuit Court with instructions.
Frederick Pennington, Jr., pro se appellant.
Dustin McDaniel, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.
3