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                  SUPREME COURT OF ARKANSAS
                                         No. CV-16-404

                                                  Opinion Delivered: September 22, 2016
LEE CHARLES MILLSAP, JR.
                      APPELLANT                   PRO SE APPEAL FROM THE
V.                                                LINCOLN COUNTY CIRCUIT
                                                  COURT
WENDY KELLEY, DIRECTOR,                           [NO. 40CV-15-106]
ARKANSAS DEPARTMENT OF
CORRECTION
                     APPELLEE                     HONORABLE JODI RAINES DENNIS,
                                                  JUDGE

                                                   AFFIRMED.


                                        PER CURIAM

         Appellant Lee Charles Millsap, Jr., filed a pro se petition for writ of habeas corpus in

the circuit court of the county where he was incarcerated.1 The circuit court dismissed the

petition, and Millsap lodged this appeal. On appeal, Millsap contends that the circuit court

erred in dismissing the petition because it failed to grant relief on his claim in the habeas

petition that a judgment of commitment sentencing Millsap to “life without parole” on a

capital-murder charge was facially invalid. We affirm the order dismissing the petition.

         In 1998, Millsap entered negotiated guilty pleas in the Pulaski County Circuit Court

to charges of capital murder, first-degree terroristic threatening, and second-degree battery.

The judgment Millsap attached to the habeas petition reflects that Millsap received a

sentence of life without parole on the capital-murder charge. Millsap also attached to his

petition a copy of the docket listing for the trial court, which indicates that the death penalty


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       As of the date of this opinion, Millsap remains incarcerated in Lincoln County.
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was waived. Millsap does not contest the judgment concerning the other charges, but he

contends, both in the petition and on appeal, that the trial court did not have authority

under the applicable statutes to enter a sentence of life without parole for the capital-murder

charge.

       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. Philyaw v. Kelley, 2015 Ark.

465, 477 S.W.3d 503. Under our statute, unless a petitioner for the writ alleges his actual

innocence and proceeds under Act 1780 of 2001 Acts of Arkansas, he is required to 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). A petitioner in proceedings

for a writ of habeas corpus must show that the trial court lacked jurisdiction or that the

commitment was invalid on its face, or there is no basis for a finding that a writ of habeas

corpus should issue. Fields v. Hobbs, 2013 Ark. 416.

       Millsap alleged that the judgment was illegal on its face, and he contends that he has

shown probable cause for a finding of illegal detention because he has shown that the trial

court lost jurisdiction to impose the sentence when the State waived the death penalty.

Arkansas Code Annotated section 16-89-108(b) (Repl. 2005) states that, in those cases

where the death penalty has been waived, “punishment cannot be fixed at more than life

imprisonment.” Millsap asserts that the imposition of the sentence that he received, life

without parole, was barred by this statutory requirement. Millsap contends that, because he

can only be sentenced under that statute to life, his conviction must be void. Millsap alleges


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the sentence may not be reduced to a “life” sentence because, under Arkansas Code

Annotated section 5-10-101 (Repl. 1997), the only two possible sentences for a conviction

of capital murder are death or life imprisonment without parole. Millsap argues that this

conflict in statutory intent must be resolved in his favor, and that the sentence imposed was

in excess of that permitted.

       The circuit court considering the habeas petition found that Millsap’s sentence was

within the statutory range for capital murder and that Millsap failed to demonstrate probable

cause for issuance of 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. On appeal, however, we consider any

statutory interpretation de novo and give no deference to the circuit court’s interpretation.

State v. Thomas, 2014 Ark. 362, 439 S.W.3d 690. In this case, the circuit court’s order was

not clearly erroneous, and, following clear precedent, its statutory interpretation was also

correct.

       As the circuit court noted in its order, this court has considered this issue and rejected

Millsap’s argument. In Butler v. State, 261 Ark. 369, 549 S.W.2d 65 (1977), we noted that

the intermediate punishment of life imprisonment without parole did not exist when the

act codified by section 16-89-108 was passed. In construing any statute, we place it beside

other statutes relevant to the subject matter in question and ascribe meaning and effect to




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be derived from the whole. Thomas, 2014 Ark. 362, at 4, 439 S.W.3d at 692. Statutes

relating to the same subject must be construed together and in harmony, if possible. Id.

       It is true that penal statutes are to be strictly construed, and all doubts are to be

resolved in favor of the defendant. State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635. Even

a penal statute, however, must not be construed so strictly as to defeat the obvious intent of

the legislature. Id. As we concluded in Butler, the two statutes here can be read in harmony.

The legislature’s intent in section 16-89-108(b) was clearly that, once waived, the waiver

could not be disregarded and the death penalty imposed. It was not, as Millsap contends,

the legislature’s intent to prohibit any imposition of the only permissible alternative sentence

under section 5-10-101, life imprisonment without parole. Accordingly, the circuit court

did not err in declining to grant relief on the claim in the habeas petition.

       Affirmed.




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