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                  SUPREME COURT OF ARKANSAS.
                                        No.   CV-16-316


                                                 Opinion Delivered December   1, 2016
CODY WARD
                               APPELLANT
V.                                               PRO SE APPEAL FROM ORDER
                                                 DISMISSING A PRO SE PETITION
WENDY KELLEY, DIRECTOR                           FOR JUDICIAL REVIEW JEFFERSON
ARKANSAS DEPARTMENT OF                           COUNTY CIRCUIT COURT
CORRECTION                                       [No. 35CV-16-316 ]
                     APPELLEES
                                                 HONORABLE, JUDGE JODI
                                                 RAINES DENNIS

                                                 SUPPLEMENTAL BRIEFING
                                                 ORDERED.

                                        PER CURIAM


       This is a pro se appeal from the dismissal of a petition for judicial review that was filed

 pursuant to the Administrative Procedure Act–Arkansas Code Annotated sections 25-15-212

 – 219 (Repl. 2014). Appellant Cody Ward, pleaded guilty to one count of manslaughter

 and is incarcerated in the Arkansas Department of Correction (ADC) pursuant to a

 sentencing order entered by the Mississippi County Circuit Court on March 5, 2013. The

 order reflected a sentence of 240 months’ imprisonment for the crime of manslaughter and

 the imposition of a consecutive firearm enhancement of 120 months’ imprisonment

 pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2006). The sentencing

 order further reflected that the crime had been committed on June 18, 2012, that Ward had

 a “0” criminal history score, and that Ward had not been sentenced as a habitual offender.
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The second page of the March 5, 2013 sentencing order reflected that the total term to be

served “for all offenses” was 240 months’ imprisonment.

       The ADC initially calculated Ward’s term of imprisonment to total an aggregate term

of 240 months’ imprisonment. However, Ward’s time computation card was changed by

the ADC on July 14, 2015, to reflect an increase in the time to be served from an aggregate

term of 240 months’ imprisonment to a term of 360 months’ imprisonment. The ADC’s

recalculation of Ward’s sentence moved his parole date from March 6, 2016, to November

5, 2017.

       In response to the recalculation of his sentence, Ward filed a grievance and alleged

that he was a first-time offender that had been convicted of a Class C felony offense which

carried a maximum penalty of 120 months’ imprisonment; that the enhancement of an

additional 120 months’ imprisonment was included in the total sentence of 240 months’

imprisonment; and that the ADC had misinterpreted the sentencing order and had illegally

increased his sentence for manslaughter by 120 months. Due to the concern that Ward has

been serving time under an illegal sentence, we order supplemental briefing on this issue.

       The ADC did not adjudicate Ward’s grievance and summarily denied it based on the

calculation of its records clerk who had determined that his 240-month sentence had been

enhanced by a consecutive term of 120 months’ imprisonment. The final agency decision

was entered on November 24, 2015. The record is not clear on when Ward was given

notice of the final decision, but Ward subsequently sent a petition for judicial review in

advance of the expiration of the 30-day time frame to file such a petition.




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       In response to the petition for judicial review, the ADC filed a motion to dismiss

and argued that, under this court’s holding in Fatpipe Inc. v. State, 2012 Ark. 248, 410

S.W.3d 574, its decision was not one that was subject to judicial review. The ADC also

alleged that the Mississippi County Circuit Court had entered an amended sentencing order

on August 25, 2014, which amended the aggregate sentence to 360 months’ imprisonment.

However, the ADC did not attach the amended order to its motion to dismiss and the only

order that was made part of this record before this court was the original sentencing order

entered on March 5, 2013. The circuit court granted the ADC’s motion.

       When a complaint is dismissed on a question of law, this court conducts a de novo

review. Renfro v. Smith, 2013 Ark. 40, at 2 (per curiam). The administration of prisons has

generally been held to be beyond the province of the courts. Clinton v. Bonds, 306 Ark.

554, 557-58, 816 S.W.2d 169, 171–72 (1991). However, an exception to the courts’

reticence to entertain prisoner’s administrative complaints occurs when the petitioner asserts

an infringement on constitutional rights. Id. When an inmate alleges facts sufficient to raise

a liberty interest, the ADC’s actions are subject to judicial review. Munson v. Arkansas

Department of Correction, 375 Ark. 549, 553, 294 S.W.3d 409, 411 (2009)(per curiam). The

unlawful confinement of an individual under a sentence longer than that permitted by statute

constitutes a denial of liberty without due process of law. Renshaw v. Norris, 337 Ark. 494,

497–98, 989 S.W.2d 515, 517 (1999). Ward has alleged sufficient facts establishing a

constitutionally protected liberty interest.

       We ordered the state to supplement the record with the amended sentencing order.

The sentence clearly exceeds the maximum penalty for the crime. Manslaughter is a Class

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C felony. Ark. Code Ann. § 5-4-104(c) (Repl. 2006). A Class C felony carries a maximum

penalty of 10 years’ or 120 months’ imprisonment. Ark. Code Ann. § 5-4-401(a)(4) (Repl.

2006). As stated above, there is no indication on the face of the order that Ward had been

sentenced as an habitual offender.

       In its response to Ward’s grievance, the ADC did not consider Ward’s allegation that

a sentence of 240 months’ imprisonment exceeds the statutory maximum for manslaughter.

This court has found that the ADC has a duty to execute sentences in compliance with the

law. Kelley v. Norris, 2012 Ark. 86, at 3 (citing Kelley v. Washington, 311 Ark. 73, 843

S.W.2d 797 (1992)); Woods v. Lockhart, 292 Ark. 37, 727 S.W.2d 849 (1987) (petitions for

declaratory relief and for a writ of mandamus are appropriate where persons incarcerated

have sought to compel the ADC to perform its duty with respect to the asserted terms of

incarceration).

       As stated above, the ADC argued below and argues on appeal that judicial review of

the ADC’s actions are circumscribed by the Administrative Procedure Act (APA) which

limits judicial review to agency adjudications. See Ark Code Ann. § 25–15–212. It is true

that this court has held that the right to judicial review under the APA is limited to cases

where the agency acted in a quasi-judicial manner by conducting a full adjudication of the

issue. Fatpipe, 2012 Ark. 248, 410 S.W.3d 574. We have also explained that where there

has not been an adjudication before the administrative agency, the circuit court does not

have jurisdiction for review. Walker v. Arkansas State Board of Education, 2010 Ark. 277, 365

S.W.3d 899. However, if the Constitution requires due process before an agency can

abridge a liberty interest by extending the duration of an inmate’s sentence, then the fact

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that the agency failed to conduct an adjudication is in itself an issue that is subject to judicial

review. Clinton, 306 Ark. at 558, 816 S.W.2d at 172. Thus, the absence of an adjudication

is irrelevant to this court’s authority to review this matter, because such a conclusion would

compound a denial of due process.

       The issue of the illegality of a sentence may be raised at any time, because the

unlawful confinement of an individual under a sentence longer than that permitted by statute

constitutes a denial of liberty without due process. Renshaw, 337 Ark. 497–98, 989 S.W.2d

517.     Because the imposition of an illegal sentence is viewed as a violation of basic

constitutional rights, this court has consistently viewed the issue as being an issue of subject-

matter jurisdiction, in that it cannot be waived by the parties and may be addressed for the

first time on appeal.     State v. Webb, 373 Ark. 65, 69, 281 S.W.3d 273, 276 (2008).

Sentencing in Arkansas is entirely a matter of statute. Esry v. State, 2014 Ark. 539, at 3–4,

453 S.W.3d 144, 146–47 (per curiam). No sentence shall be imposed other than as

prescribed by statute. Id. A void or illegal sentence is one that is illegal on its face. Id. A

sentence is illegal on its face when it exceeds the statutory maximum for the offense for

which the defendant was convicted. Id.

       The record before this court contains the sentencing order entered on March 5,

2013, and has since been supplemented to include the amended order entered on August

25, 2014. While contending that the amended order justified its action, the ADC failed to

explain the basis for increasing the total sentence from 240 months’ imprisonment to 360

months’ imprisonment and also failed to explain how the increase represented a valid

modification of the original order occurring over one year after that order had been entered

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and placed into execution. See Vera v. State, 2016 Ark. 238, at 2 (per curiam) (Once a

sentence has been placed into execution, the trial court no longer has authority to modify,

amend, or revise a valid sentence.).

       Accordingly, we order that the both parties file supplemental briefs within 10 days

to address the issue of whether the amended sentencing order results in an illegal sentence

and thus whether the ADC’s recalculation of his time was in error.

       Supplemental briefing ordered within 10 days.




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