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                   SUPREME COURT OF ARKANSAS
                                         No.   CV-15-228

THEODORE A. ANDERSON                                Opinion Delivered November   5, 2015
                   APPELLANT
                                                    PRO SE APPEAL FROM THE
V.                                                  LINCOLN COUNTY CIRCUIT COURT
                                                    [NO. 40CV-14-89]

WENDY KELLEY, DIRECTOR,                             HONORABLE JODI RAINES DENNIS,
ARKANSAS DEPARTMENT OF                              JUDGE
CORRECTION
                     APPELLEE                       AFFIRMED.


                                         PER CURIAM


       Appellant Theodore A. Anderson appeals the dismissal of his petition for writ of habeas

corpus challenging a 2007 judgment reflecting his criminal convictions in the Saline County

Circuit Court on charges of rape, residential burglary, and third-degree domestic battery. We

affirm the Lincoln County Circuit Court’s order finding that Anderson failed to demonstrate

probable cause sufficient for the writ to issue.1

       In his petition for the writ, Anderson alleged that the trial court lacked jurisdiction to

convict him in that he was illegally arrested, the information charging him was defective, and no

plea was entered before his trial. On appeal, Anderson alleges that the circuit court erred in

dismissing the petition because his due-process rights were violated by the use of a defective

information filed by a deputy prosecutor in juvenile court and by a warrantless arrest prior to

the filing of any information.


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        Anderson filed the petition in the circuit court of the county where he was and, as of the
date of this opinion, still is incarcerated.
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       The appellee, Kelley, first urges this court to dismiss the appeal because, she contends,

Anderson has accrued three “strikes,” and he is therefore no longer entitled to bring an appeal

or other civil action under Arkansas Code Annotated section 16-68-607 (Repl. 2005). Section

16-68-607 provides as follows:

       In no event shall an incarcerated person bring a civil action or appeal a judgment in a
       civil action or proceeding under the Arkansas indigency statutes if the incarcerated
       person has on three (3) or more prior occasions, while incarcerated or detained in any
       facility, brought an action that is frivolous, malicious, or fails to state a claim upon which
       relief may be granted, unless the incarcerated person is under imminent danger of serious
       physical injury.

Kelley points to two previous appeals to this court and the decision in the circuit court in this

appeal as the three strikes under the statute.

       The two previous appeals were also habeas proceedings. See Anderson v. State, 2011 Ark.

35 (per curiam) (holding that petition for habeas relief did not state a claim cognizable in a

proceeding for the writ); Anderson v. State, 2009 Ark. 467 (per curiam) (holding that a petition

under Act 1780 did not state a sufficient basis for a claim under the Act). This court has

consistently held that habeas petitions that fail to state a claim upon which relief can be granted

are appropriately counted as strikes under section 16-68-607. See Tucker v. Hobbs, 2014 Ark. 449

(per curiam).

        Kelley cites Coleman v. Tollefson, 135 S. Ct. 1759 (2015), a United States Supreme Court

case interpreting a comparable federal statute, asserting that the order Anderson challenges in

this appeal may count as the third strike against him. Coleman holds that the federal statute

prevents the filing of any new proceedings as a pauper once the lower court has dismissed a

third prior proceeding even if the third dismissal is pending on appeal. The Court, however,


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specifically declined to reach the question here, that is, whether the statute may serve to prevent

the pursuit of an appeal for the order constituting the third strike. Coleman, 135 S. Ct. at

1764–65. The Court simply noted, without addressing the issue, that the Solicitor General’s

position was that a prisoner should not be prevented from appealing as a pauper in the same

proceedings in which an order was entered constituting a third strike. Id.

       Under our constitution, the privilege of the writ of habeas corpus shall not be suspended

by the general assembly except in the case of rebellion, insurrection or invasion, or when the

pubic safety may require it. Ark. Const. Art. 2, § 11. This court has held it to be well settled that

the writ is a vital privilege protected by our constitution. Hundley v. Hobbs, 2015 Ark. 70, 456

S.W.3d 755. We need not determine whether section 16-68-607 may serve to prevent an appeal

of the denial of habeas relief, however, because Kelley has not demonstrated that the statute, by

its own terms, would apply under the circumstances of this case.

       As Anderson asserts in his reply brief, there is no order included in the record to indicate

that Anderson was declared a pauper in this habeas proceeding. Kelley has made no request to

supplement the record to demonstrate that Anderson was proceeding as a pauper. The docket

sheet from the Saline County proceedings attached to his habeas petition indicates that

Anderson was declared indigent in those proceedings, and the judgment indicates that he was

represented by a public defender for trial. The circuit court also found that section 16-68-607

applied, with the accompanying inference that Anderson was proceeding as an indigent. The

order did not, however, include a more specific finding that Anderson was proceeding as a

pauper below. The record, more importantly, includes a statement on the costs for preparation



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of the record on appeal. The fee bill prepared by the circuit clerk indicates that Anderson paid

the costs for preparation of the record. The record therefore does not indicate that Anderson

is proceeding in this appeal under the Arkansas indigency statutes so that section 16-68-607

would apply.

       Turning to the merits of the appeal, it is clear that Anderson made no well-founded claim

for the writ. A circuit court’s grant or denial of habeas relief will not be reversed unless the

court’s findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A

finding is clearly erroneous when, although there is evidence to support it, the appellate court

is left, after reviewing the entire evidence, with the definite and firm conviction that a mistake

has been committed. Id.

       Under our statute, a petitioner for the writ who does not allege his actual innocence and

proceed under Act 1780 of 2001 Acts of Arkansas 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. Ark. Code Ann. § 16-112-

103(a)(1) (Repl. 2006). 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. Fields

v. Hobbs, 2013 Ark. 416.

       Although the petition alleged that the trial court lacked jurisdiction to convict Anderson

and that his conviction was void, Anderson’s claims do not survive scrutiny. Anderson has not

demonstrated error.



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       Anderson’s allegations in the petition that his judgment was void because he never

entered a plea are abandoned on appeal. Chambers v. State, 2012 Ark. 407, 424 S.W.3d 296

(holding that an argument raised below but not on appeal was considered abandoned). This

court may choose to address jurisdictional issues at any time, but claims of a violation of proper

plea procedure are not cognizable in proceedings for the writ. See Woodson v. Hobbs, 2015 Ark.

304, ___ S.W.3d ___ (per curiam). Woodson concerned a guilty plea, but arraignment and inquiry

as to the plea is waived where a defendant announced he was ready for trial and was tried as if

he had entered a plea of not guilty. Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006); see also

Bettis v. State, 164 Ark. 17, 261 S.W. 46 (1924).

       Claims of a defective information that raise a jurisdictional issue, such as those that raise

a claim of an illegal sentence, are cognizable in a habeas proceeding. See Gooch v. Hobbs, 2014

Ark. 73 (holding that where the information averred that the appellant had committed a felony

murder although charging first-degree murder, the sentence on a plea to capital-felony murder

was not illegal); Willis v. Hobbs, 2011 Ark. 509 (per curiam) (holding that, to the extent that the

appellant contended that he was never charged with the crime as convicted, he failed to provide

probable cause to support the claim); see also Parmley v. Hobbs, 2011 Ark. 75 (per curiam) (holding

that the petitioner’s allegation that the information charged him with a crime committed in

another county was not factually supported by the record). Allegations of a defective

information, however, are not generally considered to be jurisdictional and are treated as trial

error. Willis, 2011 Ark. 509. Allegations of a defective information that merely assert trial error

are not cognizable claims. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). This court has



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consistently held that the proper time to object to the form or sufficiency of a charging

instrument is prior to trial. Chambliss v. State, 2014 Ark. 188 (per curiam).

       Anderson alleged the information was defective in that it was signed by a deputy

prosecutor. This court has discussed the case that Anderson cites, Eason v. Fletcher, 200 Ark.

1112, 143 S.W.2d 22 (1940), concerning a similar claim, and noted that, because the defect

alleged may result in a voidable defect and not one that voids the judgment, the trial court did

not lack jurisdiction to sentence the appellant. Murry v. Hobbs, 2013 Ark. 29 (per curiam).

       Anderson also alleged that the information was defective in that it was not filed until after

a warrantless arrest, and the process of charging him was therefore illegal. The court’s

jurisdiction to try the accused does not depend upon the validity of the arrest. Singleton v. State,

256 Ark. 756, 510 S.W.2d 283 (1974). Due-process claims are not sufficient to implicate the

facial validity of the judgment or the jurisdiction of the trial court. Maier v. State, 2015 Ark. 303

(per curiam). Anderson did not therefore demonstrate a jurisdictional defect in the information.

       Additionally, Anderson argues that the information was filed in juvenile court, which,

because of his age, would not have had jurisdiction. He did not include this claim in his petition

below.2 A claim that a sentence is illegal on its face is treated as an issue of subject-matter

jurisdiction that can be addressed by this court sua sponte. Harness v. State, 352 Ark. 335, 101

S.W.3d 235 (2003). Anderson appears to assert that, because the judgment was filed in the

second division of the Twenty-Second Judicial District and because Arkansas Code Annotated

section 16-13-3103 (Repl. 2010) mandates that the judge of that division be the juvenile judge,


       2
       Anderson appears to have raised a similar, although less developed, argument in a
previous habeas proceeding. See Anderson v. State, 2011 Ark. 35 (per curiam).
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he must therefore have been convicted in juvenile court.

         Anderson’s argument omits any reference to that portion of the statute that indicates the

juvenile court judge may also sit as judge of the circuit court as time permits. Anderson’s

judgment reflects that it was entered in circuit court with a criminal-division number. The

information attached to the habeas petition also reflects a criminal-division number. Anderson

points to nothing in the statute to indicate that the second division must exclusively hear juvenile

cases.

         Pursuant to amendment 80 of the Arkansas Constitution, this court issued Administrative

Order Number 14. C.H. v. State, 2010 Ark. 279, 365 S.W.3d 879. Under Administrative Order

Number 14, the designation of divisions is for the purpose of judicial administration and

caseload management and is not for the purpose of subject-matter jurisdiction. Furthermore,

the creation of divisions shall in no way limit the powers and duties of the judges to hear all

matters within the jurisdiction of the circuit court. Ark. Sup. Ct. Admin. Order No. 14(1)(a).

The mere filing of the information and Anderson’s conviction in the second division did not,

as Anderson contends, indicate that the matter had been filed in juvenile court.

         Although Anderson may have raised issues on appeal that questioned the jurisdiction of

the trial court, none of his allegations in the petition had merit, and the circuit court was not

clearly erroneous in finding that his petition did not set forth the requisite probable cause.

Accordingly, we affirm the order dismissing the petition for the writ.

         Affirmed.

         Theodore A. Anderson, pro se appellant.

         Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.



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