Bryant v. May

2013 Ark. 168

JEREMIE DALE BRYANT APPELLANT

v. LARRY MAY, DIRECTOR, ARKANSASDEPARTMENT OF CORRECTION APPELLEE

No. 12-602

SUPREME COURT OF ARKANSAS

Opinion Delivered April 18, 2013

PRO SE MOTIONS FOR APPOINTMENT OF COUNSEL,

ORAL ARGUMENT, TO ORDER INMATE'S PRESENCE AT ALL SCHEDULED HEARINGS,

AND TO REFILE APPEAL RECORD AS RECORD FOR

CERTIORARI AND PETITION FOR WRIT OF CERTIORARI [APPEAL

FROM THE LEE COUNTY CIRCUIT COURT, CV 12-39,

HON. L.T. SIMES II, JUDGE]

MOTION TO REFILE RECORD DENIED; APPEAL DISMISSED;

MOTIONS FOR APPOINTMENT OF COUNSEL, ORAL ARGUMENT,

AND TO ORDER INMATE'S PRESENCE AND PETITION FOR WRIT OF CERTIORARI MOOT.

PER CURIAM

In 2002, the prosecuting attorney in Craighead County charged appellant Jeremie Dale Bryant with the capital murder and kidnapping of Aaron Griffin. Appellant entered a negotiated plea to first-degree murder in Griffin's death, and, in accord with that plea agreement, appellant testified against his codefendant, William Joseph Lenox.

The evidence in the case against Mr. Lenox, which was based largely on appellant's testimony, showed that appellant was angry with Griffin and that he had asked Lenox to help him beat up Griffin. See Lenox v. State, CACR 03-197 (Ark. App. May 19, 2004) (unpublished).Lenox and appellant got together to plan how they would deceive Griffin into going with them, and appellant then called Griffin and told him a fabricated story about moving furniture for Lenox so that Griffin would think that he could earn some money. Id. Appellant and Lenox picked Griffin up at a church, drove him to an isolated area, beat him unconscious, and left him partially submerged in the Cache River, where Griffin died. Id.

In 2012, appellant filed a petition for writ of habeas corpus in the Lee County Circuit Court that was denied, and he has lodged an appeal of that order in this court.¹ Appellant filed motions requesting appointment of counsel, oral argument, and to order his presence at all scheduled hearings, and he later filed a motion that requested permission to refile the record on appeal as a record for certiorari and a petition for writ of certiorari.

The later two filings appear to stem from appellant's mistaken belief that the proper means of review of a habeas corpus proceeding is through writ of certiorari rather than appeal. In fact, we now permit review of habeas corpus proceedings only by appeal. See In re Review of Habeas Corpus Proceedings, 313 Ark. 168, 852 S.W.2d 791 (1993) (per curiam). Accordingly, we deny appellant's motion to refile the record, and the petition for writ of certiorari is moot. Because we dismiss the appeal, the remaining motions are also moot.

An appeal of the denial of postconviction relief, including an appeal from an order that denied a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that the appellant could not prevail. Roberson v. State, 2013 Ark. 75 (per curiam). Our review of the record has made it clear that appellant cannot prevail.

A writ of habeas corpus is proper only when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Murry v. Hobbs, 2013 Ark. 64 (per curiam). The burden is on the petitioner in a proceeding for a 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. Id. 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. Id.; Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006). In his petition, appellant did not allege actual innocence, and he did not demonstrate a basis for the writ to issue.

Appellant alleged grounds for issuance of the writ as follows: (1) the trial court lacked jurisdiction because the murder was committed in Greene County and not Craighead County; (2) the filing of the information, which alleged capital murder based on kidnapping as the underlying felony and a separate kidnapping charge, subjected appellant to prejudice and was a double-jeopardy violation; (3) the first-degree-murder conviction was invalid in that the prosecution did not prove the underlying felony of kidnapping because it nol-prossed the separate kidnapping charge, in that kidnapping was a lesser-included offense of first-degree murder, and in that it was a breach of the plea agreement not to drop the kidnapping charge. To the extent that these claims alleged that the trial court lacked jurisdiction or that the commitment was invalid on its face, none demonstrate probable cause to support the basis alleged.

In his first ground for the writ, appellant asserted that the trial court lacked jurisdiction to convict him when the murder was committed in another county. Our cases, however, have consistently recognized that when a crime begins in one county and proceeds to culmination in another county, both counties have jurisdiction to prosecute the crime. Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003). This court has held that, when the actual killing occurred in another county, the trial court had jurisdiction if acts requisite to the consummation of the murder occurred within its jurisdiction. Fudge v. Hobbs, 2012 Ark. 80 (per curiam). Appellant only alleged that the actual killing occurred outside of the trial court's jurisdiction, and not that the codefendants planned the assault, contacted the victim, and picked him up in some other jurisdiction. In fact, the probable-cause affidavit that appellant points to in support of his claim appears to indicate that these other acts, which were requisite to the consummation of the murder, occurred in Jonesboro. Jonesboro is in Craighead County and within the jurisdiction of the trial...