Opinion
10-818
Opinion Delivered November 18, 2010
Pro Se Motion for Extension of Time to File Appellant's Brief and Motion to Stay Appeal or for Extension of Brief Time [Lincoln County Circuit Court, LCV 2010-19, Hon. Jodi Raines Dennis, Judge], Appeal Dismissed; Motions Moot.
On February 9, 2010, appellant Wilbert Johnson, who is incarcerated in the custody of the Arkansas Department of Correction by virtue of multiple criminal convictions, 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.
Appellant now seeks by pro se motions an extension of time to file his brief-in-chief and to stay the appeal or in the alternative an extension of brief time. We need not address the merits of the motions because it is clear from the record that appellant could not prevail on appeal. Accordingly, the appeal is dismissed, and the motions are 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. Moore v. Hobbs, 2010 Ark. 380 (per curiam); Hutcherson v. State, 2010 Ark. 368 (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).
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. Moore, 2010 Ark. 380; 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).
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) (Repl. 2006).
In 2006, appellant was charged with theft by receiving, a Class C felony; aggravated assault; fleeing; and driving while intoxicated. In 2008, appellant entered a plea of guilty to theft by receiving and fleeing and was sentenced to an aggregate term of 300 months' imprisonment. At the plea hearing, the State elected to dismiss the charges of aggravated assault and driving while intoxicated, but amended the theft-by-receiving charge from a Class C to a Class B felony. In the petition for writ of habeas corpus, appellant contended the following: the judgment was invalid because his guilty plea was not voluntarily and intelligently made because he was unaware that amending the theft charge to a Class B felony would increase the maximum sentence; the trial court failed to comply with Arkansas Rule of Criminal Procedure 24.4 (2010) in that it did not fully advise him of his rights during the plea hearing; the court lacked subject-matter jurisdiction because it failed to ascertain that the plea was voluntarily and intelligently made and because he was sentenced for a crime not contained in the information; and the theft charge was wrongfully amended. The claims were not sufficient to establish that the judgment was invalid on its face or that the trial court lacked jurisdiction in the matter.
Appellant offered no authority for the propositions that amending an information deprives a court of jurisdiction to try the accused or that a habeas proceeding is a means to argue that the court failed to follow a procedural rule. We have held that a claim regarding amendment of the information is not cognizable in a habeas proceeding. Hill v. Norris, 2010 Ark. 287 (per curiam). Even if there was an error at trial in the amended information, the error would not take away the court's personal or subject-matter jurisdiction. Id.; see also Moore, 2010 Ark. 380. A court with personal and subject-matter jurisdiction over the defendant in a criminal proceeding has authority to render judgment. Moore, 2010 Ark. 380; Hutcherson, 2010 Ark. 368; Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989). If the trial court erred in permitting the information to be amended, appellant's remedy also lay in a timely objection in the trial court. If the court erred when the plea was taken, appellant's remedy was also a timely objection. If counsel was remiss in raising timely objections in the plea proceeding, 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). Moore, 2010 Ark. 380; Hill, 2010 Ark. 287. A claim of ineffective assistance of counsel is not cognizable in a habeas proceeding. Grimes v. State, 2010 Ark. 97 (per curiam). A petition for writ of habeas corpus likewise is not a substitute for proceeding under Rule 37.1. Rickenbaker v. Norris, 361 Ark. 291, 206 S.W.3d 220 (2005).
Appellant strove to bring the court's jurisdiction into question by asserting that any due-process violation, such as the claim that the court failed to ascertain that the plea of guilty was voluntarily and intelligently made, deprived the court of jurisdiction. The due-process claims asserted by appellant, however, were not such to render the judgment facially invalid or to deprive the court of jurisdiction. Jurisdiction is the authority of the court to hear and determine the subject matter. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). Appellant raised no challenge to his guilty plea that called into question the court's authority.
Appeal dismissed; motions moot.