                                      Cite as 2013 Ark. 483

                 SUPREME COURT OF ARKANSAS
                                         No.   CR-13-594

                                                    Opinion Delivered    November 21, 2013
OSCAR W. STANLEY
                                 APPELLANT          PRO SE MOTION FOR
                                                    TRANSCRIPT, SECOND MOTION
v.                                                  FOR TRANSCRIPT, AND MOTION
                                                    FOR EXTENSION OF TIME TO FILE
STATE OF ARKANSAS                                   BRIEF [SEBASTIAN COUNTY
                                   APPELLEE         CIRCUIT COURT, FORT SMITH
                                                    DISTRICT, 66CR-12-321, HON. J.
                                                    MICHAEL FITZHUGH, JUDGE]


                                                    APPEAL DISMISSED; MOTIONS
                                                    MOOT.


                                        PER CURIAM


       In 2012, appellant Oscar W. Stanley entered a negotiated plea of guilty in the Sebastian

County Circuit Court, Fort Smith District, to the charges of robbery and overdraft and was

sentenced as a habitual offender to 300 months’ imprisonment for the robbery charge with

an additional 60 months’ suspended imposition of sentence for the overdraft charge. The

sentencing order indicated that the 300-month sentence would run consecutive to appellant’s

parole violation.1 On May 28, 2013, appellant filed in the circuit court a pro se petition to


       1
         The additional terms and conditions of appellant’s sentence also indicated that the State’s
petition to revoke in the Sebastian County Circuit Court, Fort Smith District, Case Nos. CR-99-
481(b), CR-05-330, and CR-08-365 would be withdrawn based on appellant’s plea to the charges
of robbery and overdraft. In CR-99-481(b) and CR-05-330, appellant pled guilty to conspiracy
to manufacture methamphetamine, possession of drug paraphernalia, and conspiracy to possess
drug paraphernalia. He was sentenced to fourteen years’ suspended imposition of sentence, ten
years’ suspended imposition of sentence, and five years’ imprisonment with an additional five
years’ suspended imposition of sentence, respectively. In CR-08-365, appellant pled guilty to
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correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111. The

circuit court denied the petition as untimely, and appellant lodged an appeal from the order

in this court.

       Now before us are appellant’s motions for transcript and motion for extension of time

to file brief.2 As it is clear from the record that appellant could not prevail if the appeal were

permitted to go forward, the appeal is dismissed, and the motions are moot. An appeal from

an order that denied a petition for postconviction relief will not be permitted to proceed

where it is clear that the appellant could not prevail. Davis v. State, 2013 Ark. 118 (per

curiam); Holliday v. State, 2013 Ark. 47 (per curiam).

       Appellant asserted in his petition that his sentence was illegal because the circuit court

violated constitutional provisions by retroactively applying the law; though, he does not

specify which law was retroactively applied by the court. He further took issue with the

application of parole-eligibility statutes to his sentence and argued that his multiple sentences,

including sentences imposed for prior convictions, should run consecutively to the sentence

imposed in his 1993 case, which he deemed the “cumulative sentence.” Finally, appellant

alleged ineffective assistance of counsel for his trial counsel’s failure to object to, or advise him



theft by deception and was sentenced to five years’ imprisonment with an additional five years’
suspended imposition of sentence. Because of the theft by deception, the circuit court revoked
appellant’s suspended sentences in CR-99-481(b) and CR-05-330 upon motion of the State, and
appellant was sentenced to five years’ imprisonment with an additional nine years’ suspended
imposition of sentence. The Arkansas Court of Appeals affirmed the revocation order in Stanley
v. State, 2009 Ark. App. 293.
       2
      Appellant’s brief-in-chief was due on August 19, 2013, and was tendered late on
September 12, 2013.

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of, the sentencing scheme.

       A claim that a sentence is illegal presents an issue of subject-matter jurisdiction that can

be addressed at any time. Skinner v. Hobbs, 2011 Ark. 383 (per curiam); see Culbertson v. State,

2012 Ark. 112 (per curiam). However, the claims advanced in appellant’s petition do not

allege an illegal sentence of the type that is jurisdictional in nature; rather, the grounds for

relief raised in appellant’s petition are of the type that should have been raised at trial, on

appeal, or in a petition for postconviction relief pursuant to Arkansas Rule of Criminal

Procedure 37.1 (2012).

       Allegations that constitute constitutional challenges to a sentence, which is within

statutory range, and claims of trial error are properly made in the circuit court at trial.3 See

Davis, 2013 Ark. 118. Section 16-90-111 does not provide a means to attack a sentence on

the constitutional grounds raised by appellant.          Likewise, appellant’s claims regarding

ineffective assistance of counsel are not cognizable under section 16-90-111, but should have

been filed in a timely petition pursuant to Rule 37.1. See Hickman v. State, 2012 Ark. 359

(per curiam).

       A petition that states postconviction relief cognizable under Arkansas Rule of Criminal

Procedure 37.1 is governed by that rule regardless of the label placed on it by a petitioner.

Purifoy v. State, 2013 Ark. 26 (per curiam). To the extent that a claim is cognizable under the

Rule, section 16-90-111 has been superseded, and any allegation that can be considered under



       3
       When a defendant enters a plea of guilty, the plea is his or her trial. Crockett v. State, 282
Ark. 582, 669 S.W.2d 896 (1984).

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Rule 37.1 is subject to the time limitations contained in the Rule. Murphy v. State, 2013 Ark.

243 (per curiam).

       Pursuant to Rule 37.2, where an appellant entered a plea of guilty, a petition must be

filed within ninety days of the date that the judgment was entered-of-record. Ark. R. Crim.

P. 37.2(c)(i) (2012). The time limitations imposed in Rule 37.2(c) are jurisdictional in nature,

and, if they are not met, the circuit court lacks jurisdiction to grant postconviction relief.

Talley v. State, 2012 Ark. 314 (per curiam); Benton v. State, 325 Ark. 246, 925 S.W.2d 401

(1996) (per curiam). The petition in the instant case was not timely filed as appellant filed the

petition approximately ten months after the sentencing order was entered-of-record; thus, the

circuit court had no jurisdiction to grant the relief sought. Where the circuit court lacks

jurisdiction, the appellate court also lacks jurisdiction. Winnett v. State, 2012 Ark. 404 (per

curiam).

       Even if considered under the statute, appellant’s petition was also untimely under

section 16-90-111. At best, appellant’s claims challenge the imposition of his sentence. The

statute allows a circuit court to correct a sentence imposed in an illegal manner within the

time allowed under the statute for a reduction of sentence. Section 16-90-111(b)(1) requires

that an order under the statute that reduces a sentence must be entered within ninety days

after the sentence is imposed or within sixty days after receipt by the circuit court of the

mandate issued upon affirmance of the judgment or dismissal of the appeal. Appellant’s

petition was not filed within the time limits allowed by the statute.


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Appeal dismissed; motions moot.

Oscar W. Stanley, pro se appellant.

No response.




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