McHaney v. Hobbs, 12-357

• Decision Date: 27 September 2012
• Docket Number: No. 12-357,12-357
• Citation: 2012 Ark. 361
• Parties: WILLIAM McHANEY APPELLANT v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE
• Court: Arkansas Supreme Court

2012 Ark. 361

WILLIAM McHANEY APPELLANT

v.RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE

No. 12-357

SUPREME COURT OF ARKANSAS

Opinion Delivered September 27, 2012

PRO SE MOTIONS TO STAY

BRIEFING TIME AND FOR

PHOTOCOPYING AT PUBLIC

EXPENSE [APPEAL FROM THE

PULASKI COUNTY CIRCUIT

COURT, CV 10-5712, HON. JAY

MOODY, JUDGE]

APPEAL DISMISSED; MOTIONS

MOOT.

PER CURIAM

Pursuant to a negotiated plea agreement, appellant William McHaney pled guilty to manufacturing a controlled substance (methamphetamine), two counts of possession of drug paraphernalia with the intent to manufacture methamphetamine, and failure to appear. A cumulative sentence of 540 months' incarceration in the Arkansas Department of Correction was imposed.

Appellant subsequently filed in the Pulaski County Circuit Court a petition for writ of habeas corpus pursuant to Arkansas Code Annotated section 16-112-101 to -123 (Repl. 2006) and a motion to proceed in forma pauperis. The circuit court granted the motion, but denied the petition by written order, and appellant timely filed a notice of appeal from that order on February 14, 2012, and lodged an appeal in this court.

Now before us are appellant's motions to stay the briefing time in his appeal andrequesting that this court order the Pulaski County Circuit Clerk to provide appellant with a copy of the record on appeal at no cost to appellant.¹ Because it is clear that appellant could not prevail if his appeal were allowed to proceed, the appeal is dismissed, and appellant's 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. Bliss v. Hobbs, 2012 Ark. 315 (per curiam) (citing Fudge v. Hobbs, 2012 Ark. 80 (per curiam)). 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. Culbertson v. State, 2012 Ark. 112 (per curiam). Under our statute, a petitioner 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. Bliss, 2012 Ark. 315; Ark. Code Ann. § 16-112-103(a)(1).

In appellant's petition for writ of habeas corpus, he first argued that the trial court was without jurisdiction to accept appellant's guilty plea on, and sentence appellant for, the charges of possession of drug paraphernalia with intent to manufacture methamphetamine, as that charge is a lesser-included offense of manufacturing methamphetamine. This is simply incorrect. An offense is a lesser-included offense of the offense charged if the offense isestablished by proof of the same or less than all the elements required to establish the commission of the offense charged. See Myers v. State, 2012 Ark. 143, ____ S.W.3d ____; Ark. Code Ann. § 5-1-110(b) (Supp. 2011). We have consistently held that the possession of drug paraphernalia with the intent to manufacture methamphetamine was not a lesser-included offense of a charge of manufacturing methamphetamine. See Myers, 2012 Ark. 143 (citing Hester v. State, 362 Ark. 373, 208 S.W.3d 747 (2005)). A conviction for manufacturing methamphetamine requires the State to prove that a defendant was engaged in the production, preparation, propagation, compounding, conversion, or processing of methamphetamine, whereas possession of drug paraphernalia with intent to manufacture methamphetamine requires no such proof. See id.

Appellant's second alleged basis for writ of habeas corpus was that the trial court should not have sentenced him for manufacturing a controlled substance, because "the record is clear that [he]...