                                   Cite as 2014 Ark. 267

                SUPREME COURT OF ARKANSAS
                                      No.   CV-13-1116

JEFFERY BROWN                                     Opinion Delivered   June 5, 2014
                               APPELLANT
                                                  APPEAL FROM THE LINCOLN
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. LCV-13-80]

RAY HOBBS, DIRECTOR OF THE                        HONORABLE JODI RAINES
ARKANSAS DEPARTMENT OF                            DENNIS, JUDGE
CORRECTION
                     APPELLEE                     AFFIRMED.


                        KAREN R. BAKER, Associate Justice


       On May 18, 1982, Jeffery Brown entered a guilty plea to first-degree murder in the

Clark County Circuit Court and was sentenced to life imprisonment. On June 24, 2013,

Brown filed a petition for writ of habeas corpus alleging that he was being held without lawful

authority pursuant to Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), and Jackson v.

Norris, 2013 Ark. 175, ___ S.W.3d ___.           Brown asserted that his sentence to life

imprisonment was illegal because he was a juvenile at the time of the offense and the

sentencing court did not consider his youth as required by Miller and Jackson.1 On August 23,

2013, the State filed a “Memorandum in Response to the Petition for Writ of Habeas

Corpus” and asserted, among other things, that Miller and Jackson were not applicable to

Brown’s case.



       1
        Brown asserts that at the time of the offense he was 17 years old.
                                    Cite as 2014 Ark. 267

       On October 1, 2013, the circuit court dismissed Brown’s petition. Brown brought

this appeal and presents one issue: (1) the circuit court erred in dismissing his habeas petition

because the Eighth Amendment and Miller and Jackson require consideration of mitigating

factors regarding his youth prior to sentencing.

       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. Noble v. Norris, 368 Ark. 69, 243

S.W.3d 260 (2006). Unless a 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. Id. The petitioner must plead either the facial invalidity or the

lack of jurisdiction and make a “showing, by affidavit or other evidence, [of] probable cause

to believe” that he or she is illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl.

2006). Moreover, 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, 368

Ark. 69, 243 S.W.3d 260. A hearing is not required if the petition does not allege either of

the bases of relief proper in a habeas proceeding; even if a cognizable claim is made, the writ

does not have to be issued unless probable cause is shown. Id. Finally, an appeal is the

proper procedure for the review of a circuit court’s denial of a petition for a writ of habeas

corpus. Id.; Gooch v. Hobbs, 2014 Ark. 73, ___ S.W.3d ___.

       At issue is the circuit court’s October 1, 2013 order denying Brown’s habeas petition,

which states in pertinent part:

       [Brown’s] claim that he received a mandatory sentence of life is a misstatement of the
       facts. Although the original charge was capital murder which is punishable by life

                                               2
                                   Cite as 2014 Ark. 267

       without parole or the death penalty, Mr. Brown entered a negotiated plea of guilty
       to the reduced charge of murder in the first degree. [Brown] admits that on the date
       he committed the offense the range of punishment for murder in the first degree was
       not less than ten years nor more than forty years, or life in the Arkansas Department
       of Correction. Of the range of punishment available for a conviction on murder in
       the first degree, [Brown] accepted the State’s offer for a sentence of life. The United
       States Supreme Court held in Miller that a mandatory sentence of life without parole
       for defendants who were under the age of eighteen on the date they committed the
       crime violates the Eighth Amendment to the Constitution of the United States. Life
       was not a mandatory sentence. Therefore, the holding in Miller does not render
       [Brown’s] life sentence invalid. Murry v. Hobbs, 2013-64 (February 14, 2013).

       In Miller, the United States Supreme Court held that the mandatory life-without-the-

possibility-of-parole sentence was unconstitutional as to juveniles. The Supreme Court held

“that the Eighth Amendment forbids a sentencing scheme that mandates life in prison

without possibility of parole for juvenile offenders. . . . Although we do not foreclose a

sentencer’s ability to make that judgment in homicide cases, we require it to take into

account how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Miller, ___ U.S. at ___, 132 S. Ct. at 2469

(internal quotations and citations omitted). In Jackson, 2013 Ark. 175, ___ S.W.3d ___, on

remand to this court, we severed the language of our capital-murder statute as it applies to

juveniles to remove the mandatory sentencing of life without parole, granted Jackson’s writ

of habeas corpus, and remanded Jackson’s case to the circuit court for resentencing to comply

with Miller. In Murry v. Hobbs, 2013 Ark. 64 (per curiam), we held that “Miller is only

applicable in Arkansas when a mandatory life sentence is imposed without the sentencer’s

being able to ‘take into account how children are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in prison.’” Hobbs, 2013 Ark. 64, at 3


                                              3
                                    Cite as 2014 Ark. 267

(quoting Miller, [___ U.S. at ___,] 132 S.Ct. at 2469).

       Based on these cases, Brown asserts that his sentence is illegal on its face. Brown

contends that the circuit court misapplied Miller, Jackson, and Murry because Miller, and this

court’s decision in Jackson, “demand further care” than only mandatory sentences and the

circuit court erred by not granting relief. Specifically, Brown argues that in Miller, the Court

held that an offender’s age is relevant to all sentencings and requires the sentencer to “take

Brown’s youthfulness into account.” Additionally, Brown contends that in Jackson this court

held that resentencing was required not because Jackson’s sentence was mandatorily imposed,

but because the sentencer did not consider Jackson’s youth. Brown further asserts that this

court’s opinion in Murry has conflicting language because it “seemed to support the restrictive

view of Miller – that it only applied to mandatory sentences. Nonetheless, this court’s holding

explicitly espoused some underlying principles of Miller . . . and a scheme . . . for

individualized sentencing for those juveniles who were convicted in adult court.”

       In sum, Brown contends that Miller and Jackson hold that, whether or not the sentence

was mandatorily imposed, Miller applies to a juvenile who is sentenced to a nonmandatory life

sentence and requires the sentencer to consider youthfulness factors. Here, the circuit court

accepted Brown’s plea and imposed his life sentence. Accordingly, Brown asserts that circuit

court, the sentencer, erred in imposing his sentence because it did not consider his youth and

other mitigating factors. Thus, the order is illegal on its face.

       The State responds that Brown did not preserve his Miller argument regarding

nonmandatory life sentences. The State further responds that Brown’s argument fails on the


                                               4
                                   Cite as 2014 Ark. 267

merits as well because Miller does not apply to nonmandatory life sentences. Additionally, the

State responds that Brown’s argument is foreclosed by Murry where this court held that Miller

did not extend to a nonmandatory life sentence for first-degree murder.

       Brown’s negotiated plea and sentence were for first-degree murder. Under the

applicable statutes, murder in the first degree was a Class A felony. Ark. Stat. Ann. §§ 41-

803(3),2 41-901, and 41-1502(3) (Supp. 1981). A defendant convicted of a Class A felony

at that time could have been sentenced to a term of imprisonment “not less than ten (10)

years to no more than forty (40) years, or life.” Ark. Stat. Ann. § 41-901(1)(a).

       When we review § 41-901(1)(a) with the applicable case law, “Miller prohibits a

sentencing scheme that mandates life in prison without the possibility of parole for juvenile

offenders.” Hobbs v. Turner, 2014 Ark. 19, at 3, ___ S.W.3d ___, ___. In Murry, 2013 Ark.

64, this court explained,

              [I]n Miller, the Supreme Court explicitly held that the Eighth Amendment’s
       protections against cruel and unusual punishment forbid a sentencing scheme that
       mandates life in prison without possibility of parole for juvenile homicide offenders.
       See Miller, 132 S.Ct. at 2464, 2469. Thus, Miller is only applicable in Arkansas when
       a mandatory life sentence is imposed without the sentencer’s being able to ‘take into
       account how children are different, and how those differences counsel against
       irrevocably sentencing them to a lifetime in prison.’ Id. at 2469.

Murry, 2013 at 3–4.

We concluded that because Murry’s life sentence for first-degree murder was not mandatory,

Miller was “simply inapposite.” Id. at 4; see also Britt v. State, 2014 Ark. 134, at 4 (We



       2
      Ark. Stat. Ann. § 41-803(2) provides the only mandatory life sentence at the time of
Brown’s offense.

                                              5
                                    Cite as 2014 Ark. 267

reaffirmed our holding in Murry, concluding that because Britt’s life sentence for first-degree

murder was not mandatory, his sentence was not illegal under Miller.); see also Smith v. Hobbs,

2014 Ark. 204 (explaining that, “given our holdings in Murry, Turner, and Britt, we again

hold that Miller is inapplicable, as Smith’s 1977 sentence to life imprisonment for first-degree

murder [pursuant to § 41-1502(3) (Repl. 1977)] was not mandatory.”). Accordingly, Miller

and Murry do not support Brown’s position because his life sentence for first-degree murder

was a discretionary determination, not less than ten (10) years to no more than forty (40)

years, or life, and was not a mandatory sentence.

       Further, Brown asserts that our decision in Jackson supports his position that the circuit

court erred. However, Jackson is distinguishable from Brown’s case. In Jackson, Jackson’s life

sentence was mandatory, in violation of the Supreme Court’s decision in Miller. Thus, we

remanded the case to the circuit court and directed the sentencing court to hold a

“sentencing hearing where Jackson may present Miller evidence for consideration.” Jackson,

2013 Ark. at 9, ___ S.W.3d at ___. Jackson was sentenced under a sentencing scheme that

did not include any consideration of mitigating factors, including youth, because the statute

was mandatory. Accordingly, because Jackson was mandatorily sentenced, the case was

remanded for Jackson to present evidence and to have it be considered on resentencing.

Here, Brown’s sentence was discretionary, and the range for first-degree murder included

ten to no more than forty years’ imprisonment, or life. Stated differently, Brown was not

mandatorily sentenced to life in prison but to a discretionary sentence that included a range;

therefore unlike in Jackson and Miller, the circuit court was not precluded from considering


                                               6
                                    Cite as 2014 Ark. 267

his youth.

       Based on our discussion above, we affirm the circuit court because Brown failed to

show that the circuit court lacked jurisdiction or that his commitment was invalid on its face.

       Affirmed.

       Marion A. Humphrey, for appellant.

       Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.




                                              7
