Pelletier v. Kelley, CV-18-264

• Court: Supreme Court of Arkansas
• Writing for the Court: ROBIN F. WYNNE, Associate Justice
• Citation: 561 S.W.3d 730
• Parties: Dereck PELLETIER, Appellant v. Wendy KELLEY, Director of the Arkansas Department of Correction; and Greg Harmon, Warden of the East Arkansas Regional Unit, Appellees
• Docket Number: No. CV-18-264,CV-18-264
• Decision Date: 06 December 2018

561 S.W.3d 730

Dereck PELLETIER, Appellant
v.
Wendy KELLEY, Director of the Arkansas Department of Correction; and Greg Harmon, Warden of the East Arkansas Regional Unit, Appellees

No. CV-18-264

Supreme Court of Arkansas.

Opinion Delivered: December 6, 2018
Rehearing Denied January 31, 2019

Cortinez Law Firm, by: Robert R. Cortinez, Sr., Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

ROBIN F. WYNNE, Associate Justice

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Dereck Pelletier appeals from an order of the Lee County Circuit Court denying his petition for writ of habeas corpus. He argues on appeal that the circuit court erred in denying the petition because his convictions on thirty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child violate the prohibition against double jeopardy. We affirm.

On August 14, 2012, appellant, who lived in Texas, sent an email with an attachment containing thirty photographs depicting child pornography to an undercover police officer in Faulkner County, Arkansas.¹ He was charged in the Faulkner County Circuit Court with thirty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child, in violation of Arkansas Code Annotated section 5-27-602 (Repl. 2013). Appellant and the State subsequently negotiated a plea agreement under which appellant would plead guilty to all thirty counts of violating section 5-27-602. In exchange, he would be sentenced to ten years' imprisonment on six of the counts to be served consecutively, with the sentences on the remaining counts to run concurrently, for a total of sixty years' imprisonment.² Appellant pled guilty, and he was sentenced in accordance with the negotiated plea agreement.

Appellant filed a petition for writ of error coram nobis in the Faulkner County Circuit Court in June 2014. In the petition, he alleged that he had been illegally sentenced because he had committed only one illegal act. The circuit court denied the petition. On appeal, this court held that appellant's claim was not cognizable in a petition for writ of error coram nobis. Pelletier v. State , 2015 Ark. 432, 474 S.W.3d 500. Appellant then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. A federal magistrate determined that appellant's habeas petition was untimely. The magistrate's findings were adopted by the federal district court.

Appellant then filed a petition for writ of habeas corpus in the Lee County Circuit Court on October 23, 2017. In the petition, he alleges that his convictions on twenty-nine of the thirty counts violate double jeopardy because he sent only one email with one attachment. In an order entered on January 8, 2018, the circuit court found that there was not probable cause to issue a writ based on the face of the pleadings. This appeal followed.

A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. See Noble v. Norris , 368 Ark. 69, 243 S.W.3d 260 (2006). Unless a petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. See id. The petitioner

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must plead either the facial invalidity or the lack of jurisdiction and make a "showing, by affidavit or other evidence, [of] probable cause to believe" that he or she is being illegally detained. Ark. Code Ann. § 16-112-103(a)(l) (Repl. 2016). Moreover, a habeas proceeding does not afford a prisoner an opportunity to retry his or her case, and it is not a substitute for direct appeal or postconviction relief. See Noble , 368 Ark. 69, 243 S.W.3d 260. A hearing is not required if the petition does not allege either of the bases of relief proper in a habeas proceeding, and even if a cognizable claim is made, the writ does not have to be issued unless probable cause is shown. See id. A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon , 2014 Ark. 225, 434 S.W.3d 364. A decision 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. Id.

The State contends that appellant's claim is not one that is recognized in a habeas proceeding. We disagree. This court has recognized that some claims of double jeopardy are cognizable in a habeas proceeding, as detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. See Quezada v. Hobbs , 2014 Ark. 396, 441 S.W.3d 910 (per curiam). Appellant argues that his sixty-year sentence is illegal because he could only have been found guilty of one count of violating section 5-27-602. A meritorious claim of an illegal sentence falls within the purview of the habeas remedy. Morgan v. State , 2017 Ark. 57, 510 S.W.3d 253 (reviewing whether a defendant was illegally sentenced as a habitual offender). This court views an allegation of a void or illegal sentence as being an issue of subject-matter jurisdiction. Id. We hold that appellant's claim falls within the bounds of a habeas action, and the issue before this court is whether the claim has merit.

Appellant argues on appeal that the circuit court erred by denying his petition because his sentence violates the double-jeopardy clauses of the Arkansas Constitution and the United States Constitution, as well as Arkansas Code Annotated section 5-1-110, which sets out conduct constituting more than one offense. The Supreme Court of the United States has stated that "the question under the Double Jeopardy Clause whether punishments are multiple is essentially one of legislative intent." Ohio v. Johnson , 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). That Court has also stated that "[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter , 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Both the Supreme Court of the United States and this court have made it clear that it is the legislature that determines crimes, fixes punishments, and has the authority to impose cumulative punishments for the same conduct. Rowbottom v. State , 341 Ark. 33, 38–39, 13 S.W.3d 904, 907 (2000).

Arkansas Code Annotated section 5-27-602 (Repl. 2013) states, in pertinent part, as follows:

(a) A person commits distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child if the person knowingly:

(1) Receives for the purpose of selling or knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers,

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transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers, or agrees to offer through any means, including the Internet, any photograph, film, videotape, computer program or file, video game, or any other reproduction or reconstruction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct; or

(2) Possesses or views through any means, including on the Internet, any photograph, film, videotape, computer program or

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