Supreme Court

Cite as 2023 Ark. 38

SUPREME COURT OF ARKANSAS

No. CR-22-187

BARBARA W. WEBB, Justice

Wesley Jefferson appeals the denial of his pro se petition for postconviction relief pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2016).  He contends his sentence is illegal because the trial court lacked authority to convict him when it used aggravated robbery as the underlying felony for capital murder; the nature of the capital-murder charge was amended in violation of Arkansas Code Annotated section 16-85-407 (Repl. 2005), which violated his due-process rights; trial counsel made statements that were the functional equivalent of an admission of guilt when he had not admitted guilt; ex parte communications prejudiced him; trial counsel and the prosecution expressed personal opinions and beliefs during various phases of the trial; and trial counsel was ineffective.  Because none of the allegations raised by Jefferson establish his sentence was facially illegal, we affirm the trial court’s order. 

I.  Background

In September 2005, Jefferson and an accomplice robbed a Forrest City convenience store.  Malissa Ajimu, a clerk at the store, testified that Jefferson pulled a gun on her while the accomplice took money out of the register.  The two also took her cell phone.  Jefferson and the accomplice fled on Interstate 40 in a stolen car, and a high-speed chase with police ensued.  Arkansas State Trooper Lowry Astin pursued Jefferson’s vehicle, and Trooper Mark Carthron, who was available a couple of miles up the Interstate, prepared to use stop sticks.  When the troopers engaged their lights and sirens, Jefferson did not attempt to stop, and he immediately increased speed.  Trooper Carthron threw the stop sticks into the roadway, and Jefferson’s car ran over them.  Trooper Carthron then proceeded on foot into the roadway, and Trooper Astin, who was still pursuing Jefferson’s vehicle at a reduced rate of speed, was unable to avoid hitting Trooper Carthron, who later died.

A St. Francis County jury convicted Jefferson of capital murder, aggravated robbery, theft of property, and fleeing.  Jefferson was sentenced to a term of life imprisonment without parole, 240 months, 120 months, and 720 months, respectively, with the terms of years to be served consecutively to one another but concurrently with the life sentence.  This court affirmed on direct appeal.  Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008). 

II.  Standard of Review

The trial court’s decision to deny relief pursuant to section 16-90-111 will not be overturned unless that decision is clearly erroneous.  Manuel v. State, 2022 Ark. 117.  Under section 16-90-111, a finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made.  Millsap v. State, 2020 Ark. 38. 

III.  Arkansas Code Annotated Section 16-90-111

Section 16-90-111(a) gives a trial court authority to correct an illegal sentence at any time.  Redus v. State, 2019 Ark. 44, 566 S.W.3d 469.  An illegal sentence is one that is illegal on its face.  Id.  A sentence is illegal on its face when it is void because it is beyond the trial court’s authority to impose and gives rise to a question of subject-matter jurisdiction.  Id.  Sentencing is entirely a matter of statute in Arkansas.  Id.  The petitioner seeking relief under section 16-90-111(a) must demonstrate that his or her sentence was illegal.  Id.  The general rule is that a sentence imposed within the maximum term prescribed by law is not illegal on its face.  McArty v. State, 2020 Ark. 68, 594 S.W.3d 54.  A trial court has subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes, and typically, trial error does not implicate the jurisdiction of the trial court or, as a consequence, implicate the facial validity of the judgment.  Id.

IV.  Claims for Relief

Jefferson argues on appeal, as he did below, that the trial court lacked subject-matter jurisdiction to convict him of capital-felony murder by using aggravated robbery as the underlying felony because aggravated robbery was not authorized by the General Assembly until April 2007.  Contrary to Jefferson’s assertion, this court has addressed this issue before and held that while aggravated robbery may not have been specifically enumerated by statute, aggravated robbery will support a charge of capital murder.  See, e.g., Gardner v. State, 2017 Ark. 230; see also Nooner v. State, 322 Ark. 87, 106, 907 S.W.2d 677, 687 (1995) (“The General Assembly could not conceivably have intended that robbery, which may involve no force, would support a charge of capital murder, while aggravated robbery, an inherently dangerous crime, would not.”).  Accordingly, the trial court did not err by denying Jefferson’s request to correct his sentence on this basis.

Jefferson next contends that the nature of the criminal information was changed with the filing of an amended criminal information.  The amended criminal information stated that he caused the death of the victim in the course and furtherance of a felony or in the immediate flight from the felony of “aggravated robbery,” not “burglary and theft of property,” as was the nature of the offense charged in the original criminal information.  Although Jefferson claims the amended information violated Arkansas Code Annotated section 16-85-407, it is well settled that a felony information may be amended by permission of the trial court up to a certain point after the jury has been sworn but before the case has been submitted to it, as long as the amendment does not change the nature of the crime charged or create an unfair surprise for the defendant.  See Thomas v. State, 2022 Ark. 12, 637 S.W.3d 268.  Jefferson does not claim that he was not provided sufficient notice of the charges against him, and the amendment did not change the nature or degree of the offense charged or create unfair surprise.  Id.; see Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). 

As he did below, Jefferson makes a series of claims regarding trial counsel.  Specifically, he contends that trial counsel made statements that were the functional equivalent of an admission of guilt when Jefferson had not admitted guilt, that ex parte communications took place and were discussed on the record, and that trial counsel was ineffective.  Statements made or actions by counsel that may be deemed prejudicial, biased, or opinionated are claims of ineffective assistance of counsel, which are not cognizable in proceedings to correct an illegal sentence.  Mister v. State, 2022 Ark. 35, 639 S.W.3d 331.  Because these claims should have been asserted in a timely petition under Arkansas Rule of Criminal Procedure 37.1, the trial court lacked jurisdiction to grant Jefferson relief on these grounds.  Id. 

To the extent Jefferson’s ex parte-communication claim references judicial bias, again, the claim is not cognizable in a proceeding to correct an illegal sentence.  Allegations of judicial bias must be raised at trial and addressed on direct appeal and are not cognizable in postconviction proceedings under section 16-90-111.  See Stover v. State, 2016 Ark. 167, 489 S.W.3d 674 (per curiam).  Likewise, Jefferson’s assertion of prosecutorial misconduct should also have been raised either at trial or on direct appeal.  See generally Sirkaneo v. State, 2022 Ark. 124, 644 S.W.3d 392.

Affirmed.

Wesley Jefferson, pro se appellant.

Leslie Rutledge, Att’y Gen., by: David L. Eanes Jr., Ass’t Att’y Gen., for appellee.