                                    Cite as 2017 Ark. 314


                   SUPREME COURT OF ARKANSAS.
                                        No.   CV-17-34


                                                 Opinion Delivered November   9, 2017
KEDRICK TREVON DARROUGH
                   APPELLANT
                                                 PRO SE APPEAL FROM THE
V.                                               JEFFERSON COUNTY CIRCUIT
                                                 COURT [NO. 35CV-16-264]

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


                           SHAWN A. WOMACK, Associate Justice

        Kedrick Trevon Darrough appeals the denial of his petition for writ of habeas corpus

 filed pursuant Arkansas Code Annotated section 16-112-101 to –123 (Repl. 2006) in which

 he alleged that his sentence was illegally enhanced pursuant to Arkansas Code Annotated

 section 5-64-408 (Supp. 2003). On appeal, Darrough argues that the circuit court erred by

 failing to grant his motion for default judgment, by not reducing his sentence because he

 was not subject to an enhancement with an out-of-state conviction pursuant to section 5-

 64-408, and by not holding an evidentiary hearing. The circuit court’s denial of habeas

 relief was not clearly erroneous and is affirmed.

        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, a petitioner for the writ who does not allege his

 actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity
                                   Cite as 2017 Ark. 314

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 being illegally detained. Ark. Code

Ann. § 16-112-103(a)(1) (Repl. 2006). 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 v. Norris, 368 Ark. 69, 243 S.W.3d 260 (2006). 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, at 5, 434 S.W.3d 364, 367. 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. Unless the 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. Fields v. Hobbs, 2013 Ark. 416, at 2.

       As an initial matter, although Darrough argues that that he was entitled to have the

court issue a summary judgment in his favor when the State failed to respond to his habeas

petition and motion for default judgment, the Arkansas Rules of Civil Procedure do not

apply to an action filed pursuant to Arkansas Code Annotated section 16-112-103. See

Baker v. Norris, 369 Ark. 405, 415, 255 S.W.3d 466, 472 n.2 (2007) (The Arkansas Rules

of Civil Procedure have never been applied to postconviction proceedings nor do they apply

to a postconviction habeas proceeding.); Sanders v. State, 352 Ark. 16, 24–25, 98 S.W.3d

35, 40–41 (2003). Contrary to Darrough’s contention, the State was not required to file a

return until the court made a determination of probable cause—which it did not do here.

See Hobbs v. Hodge, 2015 Ark. 207, at 5–6, 461 S.W.3d 704, 707. Because the State was

                                               2
                                    Cite as 2017 Ark. 314

not required to file a return, the circuit court properly denied Darrough’s request for default

judgment.

       Darrough argues that his sentence is illegal because the circuit court lacked authority

to enhance his sentence with an out-of-state conviction pursuant to Arkansas Code

Annotated section 5-64-408. Darrough further contends he was entitled to an evidentiary

hearing.1 As he argued below, Darrough contends that his judgment-and-commitment

order indicates that his sentences for possession of cocaine with intent to deliver and

possession of marijuana with intent to deliver were illegally enhanced by Arkansas Code

Annotated section 5-64-408. Citing to Sossamon v. State, 31 Ark. App. 131, 789 S.W.2d

738 (1990), he argues that a previous California conviction for possession of marijuana was

used to illegally enhance his sentences because he is a first-time offender in Arkansas.

Therefore, his sentences could not have been enhanced pursuant to section 5-64-408, as a

“second and subsequent offen[der].”

       Wendy Kelley, director of the Arkansas Department of Correction (ADC), counters

that Darrough made “bare statements” that were not adequate to meet his burden for

probable cause to have the writ issue. Because Darrough failed to meet his probable-cause

burden and establish that the California conviction “was, in fact, the conviction that was

used in the Drew County Circuit Court proceedings to enhance his sentence pursuant to §



       1
        Darrough also contends that the denial of his claim for habeas relief was a violation
of his constitutional rights to due process of law and equal protection. He raises the claim
of a constitutional violation for the first time on appeal, and we do not address constitutional
arguments raised for the first time on appeal. Taylor v. State, 2010 Ark. 372, at 20, 372
S.W.3d 769, 781.

                                               3
                                     Cite as 2017 Ark. 314

5-64-408[,]” Kelley contends that the ADC was not required to file a response to the habeas

petition. The circuit court agreed with Kelley, noting Darrough’s previously filed a habeas

petition in Lee County making the same allegation. Darrough v. State, 2013 Ark. 28 (denying

relief). The circuit court denied relief, finding that, although Darrough attached a copy of

a California conviction to his petition, a writ may not be supported by mere statements

placed in the petition and that Darrough failed to establish probable cause to support issuance

of the writ.

       Unlike the circumstances of Darrough’s first habeas petition, see Darrough, 2013 Ark.

28, Darrough attached his California conviction to the habeas petition that is the subject of

this appeal. Darrough’s assertion of the lack of jurisdiction of the trial court that resulted in

his claim of an illegal sentence is not made by “bare statements” or “mere statements placed

in the petition” but rather is supported by evidence that he claims is the prior conviction

used to support the enhancement of his sentence. The State is correct that it need not file

a return until a probable-cause determination was made. See Hodge, 2015 Ark. 207, at 5–6,

461   S.W.3d     at   707;   see   also   Gordon,   2014   Ark.    225,   434    S.W.3d     364.

       However, the State’s assertion, and the circuit court’s finding, that Darrough made

only a bare assertion that failed to establish probable cause is not accurate. Darrough made

more than a bare assertion in his pleading—he attached the prior California conviction,

alleging it was his first and only prior conviction; he nevertheless failed to obtain or attach

the record from any part of his sentencing hearing, which may have aided him in establishing

probable cause. See Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992) (holding that the

burden is on the appellant to bring forth a record that demonstrates error). Even though

                                                4
                                    Cite as 2017 Ark. 314

Darrough presented more than a bare assertion, he misinterprets Arkansas Code Annotated

section 5-64-408 and misplaces reliance on Sossamon, 31 Ark. App. 131, 789 S.W.2d 738.

This court may affirm a circuit court’s denial of habeas relief if the right result was reached

for a different reason. Watkins v. State, 2014 Ark. 283, at 5, 437 S.W.3d 685, 688 n.3.

Therefore, Darrough’s allegations fail to establish probable cause that the writ should issue.

       Arkansas Code Annotated section 5-64-408(a) (Supp. 2003) states that any person

convicted of a second or subsequent offense “under this chapter shall be imprisoned for a

term up to twice the term otherwise authorized . . . .” Subsection (b) states that an offense

is considered a second or subsequent offense “if, prior to his or her conviction of the offense,

the offender has at any time been convicted under this chapter or under any statute of the

United States or any state relating to a narcotic drug, marijuana, depressant, stimulant, or a

hallucinogenic drug.” However, the section does not apply to an offense under section 5-

64-401(c). Ark. Code Ann. § 5-64-408(c). Arkansas Code Annotated section 5-64-401(c)

(Supp. 2003), otherwise known as “simple possession,” states that it is unlawful for any

person to possess a controlled substance[.]”

       Darrough was convicted of possession of cocaine with intent to deliver and possession

of marijuana with intent to deliver—both of which fall under Arkansas Code Annotated

section 5-64-401(a), not subsection (c). In Sossaman, the appellant was convicted of simple

possession pursuant to Arkansas Code Annotated section 5-64-401(c), thereby, making

Sossaman subject to the limitation that prevented the application of the enhancement in

Arkansas Code Annotated section 5-64-408. Sossaman, 31 Ark. App. 131, 789 S.W.2d 738.

In this case, Darrough was not convicted of simple possession and was not subject to the

                                                5
                                   Cite as 2017 Ark. 314

limitation preventing the enhancement of his sentences. Further, Darrough’s previous

California conviction does not fall under either of the exceptions to section 5-64-408(c);

therefore his convictions under subsection (a) are not precluded from having the sentencing

enhancement in section 5-64-408(c) applied. The trial court did not lack jurisdiction to

sentence Darrough utilizing the enhancement in section 5-64-408. Because a hearing is not

required if the petition does not allege either bases of relief proper in a habeas proceeding,

the circuit court did not err by failing to have an evidentiary hearing on the matter. George

v. State, 285 Ark. 84, 685 S.W.2d 141 (1985).

       Affirmed.


       Kedrick Trevon Darrough, Sr., pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.




                                               6
