Ricky Hershel Justus v. State, CR11-695

• Decision Date: 01 March 2012
• Docket Number: No. CR11-695,CR11-695
• Citation: 2012 Ark. 91
• Parties: RICKY HERSHEL JUSTUS PETITIONER. v. STATE OF ARKANSAS RESPONDENT
• Court: Arkansas Supreme Court

2012 Ark. 91

RICKY HERSHEL JUSTUSPETITIONER. v.STATE OF ARKANSASRESPONDENT

No. CR11-695

SUPREME COURT OF ARKANSAS

Opinion Delivered March 1, 2012

PRO SE PETITION FOR WRIT OF CERTIORARI AND MOTIONS TO

SUPPLEMENT RECORD AND FOR TRANSCRIPT [GARLAND COUNTY

CIRCUIT COURT, NO. CR 2004-248, HON. MARCIA R. HEARNSBERGER, JUDGE]

PETITION GRANTED IN PART;

APPEAL DISMISSED; MOTIONS MOOT.

KAREN R. BAKER, Associate Justice

Ricky Hershel Justus pled guilty to two counts of false imprisonment, theft of property, and domestic battery in Garland County Circuit Court on March 31, 2004.A jury trial was held on the issue of sentencing, and after hearing the evidence, the maximum sentence was imposed.The judgment was entered on April 22, 2005.The Arkansas Court of Appeals affirmed.Justus v. State, CACR 06-878(Ark. App.Nov. 29, 2006)(unpublished).On June 8, 2010, pro se Justus filed a belated petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1(2005).The circuit court denied the petition on May 5, 2011.On May 17, 2011, Justus filed a timely notice of appeal.Pending in this case are (1) a petition for writ of certiorari to lodge the record to appeal the order denying theRule 37.1 petition, (2) a motion to supplement the record with copies of the original judgment and the amended judgment, and (3) a motion seeking a copy of the transcript of the guilty-plea hearing.

The petition for writ of certiorari requests this court to compel the Garland County Circuit Clerk to lodge the certified record with the Arkansas Supreme Court Clerk.A partial record has been prepared and tendered to this court.We grant the writ as to the partial record tendered in order that it may be filed and considered in this case.However, because it is clear that Justus could not prevail, his motions to supplement the record and for a copy of the transcript are moot.¹An appeal from an order that denied a petition for a postconviction remedy will not be permitted to go forward where it is clear that the petitioner could not prevail.Gonder v. State, 2011 Ark. 248, ____ S.W.3d ____(per curiam).

The time limits imposed by Rule 37.2(c) are jurisdictional.Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303(1989).Where the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction.Clark v. State, 362 Ark. 545, 210 S.W.3d 59(2005).Arkansas Rule of Criminal Procedure 37.2(c) requires that a postconviction Rule 37.1 petition be filed within sixty days of the date the mandate is issued by the appellate court.SeePolivka v. State, 2010 Ark. 152, ___ S.W.3d ___.A mandate issues within eighteen days after the decision becomes final upon appeal.Ark. Sup. Ct. R. 5-3.

The court of appeals' mandate was issued on December 19, 2006.To be timely, Justus was required to file his petition by February 19, 2007.Justus tacitly concedes that his Rule37.1 petition is untimely as regards the original judgment.However, he contends that the circuit court's amendment of the judgment "opened the door" for his present petition.We disagree.

The original judgment entered on April 22, 2005, reflects that Justus pled guilty to one count of false imprisonment in the first degree of a victim over the age of eighteen, one count of false imprisonment in the first degree of a victim under the age of eighteen, one count of theft of property over $500 of a victim over the age of eighteen, and one count of domestic battery in the second degree of a victim over the age of eighteen.The judgment also stated that Justus (1) was not a sex or child offender as defined in Arkansas Code Annotated section 12-12-903 and was not ordered to complete the sex offender registration form, (2) was not alleged to be a sexually violent predator and was not ordered to undergo an evaluation at a facility designated by the Arkansas Department of Correction, and (3) had not committed an aggravated sex offense.The order denying the Rule 37.1 petition states that the judgment was amended because Arkansas Code Annotated section 12-12-903(12)(A)(i)(r) requires registration as a sex offender for persons convicted of false imprisonment in the first degree when the victim is a minor.

In his Rule 37.1 petition, Justus argues (1) that the amendment was void and illegal, (2) that counsel was ineffective for failing to advise Justus regarding the reporting requirements, (3) that the trial court should have advised him of the reporting requirements, and (4) that he would not have entered the plea if he had been aware of the reporting requirements.Justus sought a declaration that his sentence and conviction be declared void,an evidentiary hearing, appointment of counsel, and a new trial.He contended that his petition was timely as regards the amended judgment, not the original judgment.The order denying the petition states that the Sex Offender Registration Act of 1997 was regulatory, nonpunitive in nature, and not a form of punishment.

Justus's assertion of entitlement to Rule 37.1 relief regarding the first claim is premised on an incorrect assumption regarding the nature and application of the Sex Offender Registration Act of 1997 (SORA), presently codified at Arkansas Code Annotated section 12-12-901 to -923 (Supp. 2007).As opposed to being "sentenced" under the act, we have held that the registration and notification components of the SORA are regulatory and "not a form of punishment[.]"Kellar v. Fayetteville Police Dep't, 339 Ark. 274, 287, 5 S.W.3d 402, 410(1999).Further, pursuant to section 12-12-906(a)(1)(A)(i), trial courts must designate criminal defendants who are convicted of certain crimes to register as sex offenders.Because Justus pled guilty to false imprisonment in the first degree of a minor victim, which was a designated crime at the time he was sentenced pursuant to section 12-12-903(12)(A)(i)(r), he was subject to SORA's requirements regardless of whether it was reflected on the original judgment.Correction of the judgment to reflect SORA's requirements does not demonstrate error so fundamental as to render the judgment void and subject to collateral attack pursuant to Rule 37.1.SeeCothren v. State, 344 Ark. 697, 42 S.W.3d 543(2001)(postconviction relief available for a double-jeopardy violation as it is a fundamental error rendering a judgment void).Thus, any challenge to SORA must be by direct attack on the amended judgment.Rule 37.1 is not the appropriate vehicle for a direct attack on ajudgment.Camargo v. State, 346 Ark. 118, 55 S.W.3d 255(2001).Nor can it serve as a substitute for an appeal.Id.

Justus's second, third, and fourth claims are an attack on the original judgment.With the exception of claims presenting as an indirect attack on the judgment or that allege fundamental error relating to a separate sentencing proceeding, cognizable claims where a defendant pleads guilty are limited to those asserting that the petitioner's plea either was not entered intelligently and voluntarily or was entered without the advice of competent counsel.Polivka, supra.Justus...