Bumgarner v. Hobbs , 2014 Ark. 78 ( 2014 )

Cite as 2014 Ark. 78
SUPREME COURT OF ARKANSAS
No. CV-12-273
JIMMY BUMGARDNER Opinion Delivered February 20, 2014
APPELLANT
PRO SE APPEAL FROM THE
V. JEFFERSON COUNTY CIRCUIT
COURT [NO. 35CV-11-771]
RAY HOBBS, DIRECTOR, ARKANSAS HONORABLE JODI RAINES DENNIS,
DEPARTMENT OF CORRECTION JUDGE
APPELLEE
AFFIRMED.
PER CURIAM
In 2005, appellant Jimmy Bumgardner was found guilty by a jury of possession of
methamphetamine with intent to deliver, possession of drug paraphernalia, and possession of
pseudoephedrine. The trial court sentenced appellant as a habitual offender to consecutive
terms of 720 months’, 240 months’, and 144 months’ imprisonment, respectively. He was also
fined a total of $15,000. The Arkansas Court of Appeals affirmed. Bumgardner v. State, CACR-
05-963 (Ark. App. Jun. 14, 2006) (unpublished) (Bumgardner I). Thereafter, appellant filed a
petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2005),
which was denied. This court affirmed the denial. Bumgardner v. State, CR-07-366 (Ark. Sept. 18,
2008) (unpublished per curiam) (Bumgardner II). Appellant then filed a pro se petition for writ
of habeas corpus in the Circuit Court of Lincoln County, and the petition was denied. We
dismissed the appeal on the basis that the Lincoln County Circuit Court no longer had personal
jurisdiction over appellant because, after filing his petition, he had been transferred from the
Varner Unit in Lincoln County to the Tucker Unit in Jefferson County. Bumgardner v. Norris,
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2011 Ark. 334 (per curiam) (Bumgardner III).
In 2011, appellant filed in the Jefferson County Circuit Court, the county in which he
remains incarcerated, a second pro se petition for writ of habeas corpus. The circuit court
denied the petition by written order, finding that the trial court had jurisdiction and the authority
to render the judgment. The circuit court also noted that appellant had unsuccessfully argued
the same issues raised in his habeas petition on direct appeal and in a Rule 37.1 petition.
Appellant has lodged an appeal in this court. We affirm the circuit court order.
The burden is on the petitioner in a habeas-corpus petition 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. Culbertson v. State, 2012 Ark. 112 (per
curiam). Under our statute, a petitioner who does not allege actual innocence and proceed under
Act 1780 of 2001 Acts of Arkansas must additionally make a showing by affidavit or other
evidence of probable cause to believe that he is illegally detained. Ark. Code Ann. § 16-112-
103(a)(1) (Repl. 2006); Darrough v. State, 2013 Ark. 28 (per curiam). A circuit court’s denial of
habeas relief will not be reversed unless the court’s findings are clearly erroneous. Justus v. Hobbs,
2013 Ark. 149 (per curiam).
On appeal, appellant raises a number of arguments to support his contention that the trial
court lacked jurisdiction and the authority to sentence him. He claims that after accepting the
jury’s recommendation that his sentence be served concurrently, the trial court, acting without
jurisdiction or authority and in violation of his constitutional rights, held a “resentencing
hearing” and modified his sentences to run consecutively. He also claims that the sentences
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were imposed consecutively by the trial court due to the court’s “vindictiveness” stemming from
its desire to punish him for receiving the benefit of executive clemency in a previous sentence.
While appellant attempts to characterize an in-court meeting between the trial court,
counsel, and the prosecutor as a “resentencing hearing” when the trial court amended his
sentence from the imposition of concurrent terms to consecutive terms, we rejected this
contention in Bumgardner II and noted that the trial court stated specifically at the meeting that
it had always been its intent to have the sentences run consecutively. Affirming the trial court’s
denial of appellant’s petition for postconviction relief in Bumgardner II, we recounted the facts,
as relevant to this appeal, as follows:
At the conclusion of the sentencing phase of the jury trial, the trial court
pronounced appellant’s sentences in conformity with the jury’s recommendation,
including the provision that the sentences be served concurrently. The trial court did not
enter the judgment at that time.
A week after the jury trial, the court spoke to counsel on the record in the
presence of the prosecutor. The court informed counsel that it would be entering a
judgment in which the sentences would run consecutively rather than concurrently. The
trial court noted that it had always intended to sentence appellant to consecutive terms
but had inadvertently used the incorrect term from the bench at the close of the jury trial.
In this conversation with trial counsel, the court set out the reasons it considered in
support of consecutive sentences. At the end of the meeting, the court noted that it
wanted to inform counsel so that the judgment would not “come as [a] surprise” to
counsel and appellant.
Bumgardner II, CR-07-366, slip op. at 7-8..
On direct appeal, appellant challenged the imposition of the consecutive sentences on
the basis that the judgment-and-commitment order did not reflect the trial court’s ruling at trial,
and the court of appeals held that the trial court was acting within its authority to impose the
sentences consecutively. In its opinion, the court of appeals referred to the authority of the trial
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court to order sentences to run consecutively and the requirement that judgment-and-
commitment orders are effective upon entry of record. Bumgardner I, CACR-05-963, slip op. at
4. Thus, to the extent that appellant is raising the argument that he is entitled to habeas relief
because the trial court did not have the authority or jurisdiction to impose the sentences
consecutively, this claim is barred by the law-of-the-case doctrine. See Pitts v. Hobbs, 2013 Ark.
457 (per curiam); Strong v. Hobbs, 2013 Ark. 376 (per curiam) (explaining that, where the merits
of a claim were addressed and adjudicated in a prior appellate decision, that issue is settled and
may not be revisited in a subsequent appeal).
As to appellant’s challenge to the consecutive sentences based on the violation of myriad
constitutional rights, including the right to notice and an opportunity to be heard, the trial court’s
“vindictiveness” in sentencing him, and its consideration of inadmissible evidence in imposing
the sentences, these arguments fail as they are based on appellant’s erroneous characterization
of the in-court meeting as a “resentencing hearing.” In Bumgardner II, appellant argued that
counsel was ineffective for failing to ensure that he was physically present during his sentencing
hearing and for failing to object to the proceeding being held without appellant’s attendance.
Affirming the trial court’s finding that counsel was not ineffective on these bases, we held that
appellant failed to demonstrate that he was required to be physically present during the meeting
or that what transpired was anything more than a meeting where the court made a correction
to reflect its original intention to use the word “consecutively” rather than “concurrently.”
Bumgardner II, CR-07-366, slip op. at 8-9. The issue of whether the proceeding was tantamount
to a sentencing hearing has been addressed and adjudicated in a prior appellate decision. Again,
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the law-of-the-case doctrine dictates that an issue raised and concluded in a prior appellate
decision may not be revisited in a subsequent appeal. Strong, 2013 Ark. 376. Thus, appellant’s
arguments, which rely on his characterization of what occurred as a hearing, cannot be
considered. See Pitts, 2013 Ark. 457; Strong, 2013 Ark. 276.
Finally, appellant seems to contend that error occurred because the trial court did not
allow him jail-time credit for the eight days that he served in jail on each of his three “concurrent
sentences” between the trial court’s pronouncement from the bench that the sentences were
imposed to run concurrently and the imposition of the sentences consecutively. The judgment-
and-commitment order reflects that appellant received a total of sixteen days of jail-time credit.
While appellant attempts to characterize his claim as one based on a violation of his right to due
process and the prohibition against double jeopardy, it is essentially a request for jail-time credit.
A request for jail-time credit is a request for modification of a sentence imposed in an illegal
manner, not an allegation of an illegal sentence, and as such must be raised in a proceeding
pursuant to Arkansas Rule of Criminal Procedure 37.1. Pineda v. Norris, 2009 Ark. 471. An
allegation that the judgment fails to reflect a jail-time credit is not a claim cognizable in a petition
for writ of habeas corpus. Id.
Affirmed.
Jimmy Bumgarner, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
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