Hill v. Norris
Larry NORRIS, Appellee.
Supreme Court of Arkansas.
In 1988, appellant Johnny Lee Hill was found guilty by a jury of murder in the first degree and sentenced to life imprisonment. We affirmed. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). Appellant subsequently filed in this court a petition to proceed pursuant to Criminal Procedure Rule 37.1 (2010) that was denied. Hill v. State, CR 89-10 (Ark. Jan. 29, 1990) (unpublished per curiam). In 1990, appellant filed in the trial court a petition to correct sentence pursuant to Arkansas Code Annotated § 16-90-111 (Supp. 1989). The appeal was dismissed on the ground that there was clearly no merit to the appeal. Hill v. State, CR 91-101 (Ark. Sept. 16, 1991) (unpublished per curiam).
On December 11, 2009, appellant filed in the circuit court in the county where he was incarcerated a pro se petition for writ of habeas corpus pursuant to Arkansas Code Annotated §§ 16-112-101 to -123 (Repl. 2006). The petition was denied, and appellant lodged an appeal here. He timely tendered one copy of his brief-in-chief and seeks by motion to have it duplicated at public expense.
We need not address the merits of the motion because it is clear from the record that appellant could not prevail on appeal. Accordingly, the appeal is dismissed, and the motion is 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. Jefferson v. State, 2010 Ark. 202 (per curiam); Hill v. State, 2010 Ark. 102 (per curiam); Washington v. Norris, 2010 Ark. 104 (per curiam); Edwards v. State, 2010 Ark. 85 (per curiam); Grissom v. State, 2009 Ark. 557 (per curiam); Pineda v. Norris, 2009 Ark. 471 (per curiam); see also Strong v. State, 2010 Ark. 181, ___ S.W.3d ___ (per curiam).
Appellant failed to state a claim in his petition that was cognizable in a habeas proceeding. 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. Boyle v. State, 2010 Ark. 98 (per curiam); 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 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, 365 Ark. at 221, 226 S.W.3d at 798-99; Ark. Code Ann. § 16-112-103(a)(1); Grimes v. State, 2010 Ark. 97 (per curiam); Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). In determining whether the denial of a writ of habeas corpus was proper, this court must look for the invalidity only on the face of the judgment. Key v. Norris, 2010 Ark. 61 (per curiam)
Appellant contended in the petition for writ of habeas corpus that the judgment in his case was invalid on the ground that he was found guilty of a charge not contained in the amended information. The original information charged appellant with capital murder. Before voir dire of the jury panel commenced, the court permitted the prosecution, over the objection of the defense, to amend the information so that the language in it reflected the capital felony-murder statute in effect at the time of the alleged offense. The underlying felony was robbery. The jury was subsequently instructed on capital murder and robbery. The jury was further instructed that first-degree murder was a lesser included offense of capital murder and that to sustain a charge of first-degree murder, the jury must find that appellant beyond a reasonable doubt acted with premeditated and deliberated purpose to commit the offense.
Appellant argued that his conviction for first-degree murder was erroneous because he was not charged with first-degree murder in the amended information, and first-degree murder is not a lesser included offense to capital felony murder. He further argued that he should not have been found guilty of acting with premeditation and deliberation to commit first-degree murder when the amended information contained no language addressing premeditation and deliberation. Appellant asserted that he was denied due process of law sufficient to render the judgment invalid on its face because he was convicted of an offense not charged.
We have held that claims such as those raised by appellant are not cognizable in a habeas proceeding. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). Even if there was an error at trial in the information or jury instructions, the error would not take away the court's personal or subject-matter jurisdiction. Id. A court with personal and subject-matter jurisdiction over the defendant in a criminal proceeding has authority to render judgment. Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989). If the trial court erred in permitting the information to be amended or the jury instructions were improper, appellant's remedy lay in timely objections in the trial court and appeal of any adverse ruling. If counsel was remiss in representing appellant at trial or on direct appeal for not objecting to trial error, appellant's remedy was a timely claim of ineffective assistance of counsel raised pursuant to our postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (2010).
Because appellant failed to demonstrate that the trial court lacked jurisdiction or that the judgment was facially invalid, he failed to state a ground for the writ. Accordingly, he cannot prevail on appeal.
Appeal dismissed; motion moot.
CORBIN, J., not participating.
 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).