Holly v. Hobbs

2015 Ark. 467

RODNEY HOLLY APPELLANT v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE

No. CV-15-339

SUPREME COURT OF ARKANSAS

December 10, 2015

PRO SE APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. 35CV-14-536]

HONORABLE JODI RAINES DENNIS, JUDGE

AFFIRMED.

PER CURIAM

On January 11, 2002, a judgment was entered reflecting that appellant Rodney Holly had entered a guilty plea in Garland County Circuit Court to first-degree murder and aggravated robbery. He was sentenced to consecutive sentences of 240 months' imprisonment on the murder charge and 480 months' imprisonment on the aggravated robbery charge for an aggregate sentence of 720 months' imprisonment in the Arkansas Department of Correction. Holly, who is incarcerated at a unit of the Arkansas Department of Correction in Jefferson County, filed a petition for a writ of habeas corpus in the Jefferson County Circuit Court on November 6, 2014.¹ In the petition, Holly claimed that his sentence was illegal because it violated the constitutional provision against double jeopardy. The petition was dismissed on March 11, 2015, and Holly brings this appeal.

Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas 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. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006). The burden is on the petitioner in proceedings 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. Fields v. Hobbs, 2013 Ark. 416.

A circuit court's grant or denial of habeas relief will not be reversed unless the court's findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left, after reviewing the entire evidence, with the definite and firm conviction that a mistake has been committed. Id.

In his habeas petition, Holly's allegations surround whether his sentence was a double-jeopardy violation, in that simple robbery, not aggravated robbery, was used as the predicate felony for first-degree murder, and that a separate charge of aggravated robbery was therefore invalid and illegal.² Some claims of double jeopardy are cognizable in a habeas proceeding. Fields, 2013 Ark. 416. Detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003). When the petitioner does not show that, on the face of the commitment order, there was an illegal sentence imposed, the claim does not implicate the jurisdiction of the court to hear the case, and the claim is not one that is cognizable. Fields, 2013 Ark. 416.

As a preliminary matter, Holly asserts that the circuit court erred in finding that Holly's double-jeopardy issue had previously been decided. He is correct that the circuit court mistakenly found that Holly had previously raised his double jeopardy argument on direct appeal and that therefore habeas relief was inappropriate to re-litigate the same issue.³ Ultimately, though, the court found Holly did not offer sufficient evidence to establish probable cause that he was held illegally. This decision, based on a review of all the evidence, is not clearly erroneous as there was no double-jeopardy violation in his sentencing.

Arkansas Code Annotated section 5-1-110(d)(1)(c) (Repl. 2006) provides for separate convictions for murder in the first degree and "any felony utilized as an underlying felony" for the murder. At the time of the commission of the crime, aggravated robbery was not enumerated by statute to be a predicate felony to first-degree murder. Ark. Code Ann. § 5-10-102 (Repl. 2013). Holly was convicted of murder with simple robbery as the underlying felony, and he argues that, because aggravated robbery was not the felony utilized as the underlying felony for the murder conviction, he could only be sentenced separately for a simple robbery charge.

In Holly's co-defendant's case, we addressed that aggravated robbery would be an appropriate underlying felony to support a charge of felony-murder. See Burgie v. Hobbs, 2013 Ark. 360 (per curiam). Even if aggravated robbery would not be an authorized underlying felony, separate sentences for first-degree murder and aggravated robbery do not violate the prohibition against double jeopardy or section 5-1-110(b)(3). Where the legislature has specifically authorized cumulative punishment under two statutes, the prohibition against double jeopardy is not violated. Missouri v. Hunter, 459 U.S. 359 (1983).

Holly contends that sentencing on the two charges constitutes a double jeopardy violation because the two charges differ only in degree. See Ark. Code Ann. § 5-1-110(b)(3) (providing that an offense qualifies as a lesser-included offense if it differs from the offense...