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                 SUPREME COURT OF ARKANSAS
                                        No.   CV-12-690

SHERWOOD GOOCH                                     Opinion Delivered   February 20, 2014
                                APPELLANT
                                                   APPEAL FROM THE JEFFERSON
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. CV-2012-221-5]

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


                           PAUL E. DANIELSON, Associate Justice


       Appellant Sherwood Gooch, an inmate incarcerated in the Arkansas Department of

Correction under a sentence of life imprisonment without parole, appeals from the circuit

court’s order dismissing his petition for writ of habeas corpus directed to appellee Ray Hobbs,

Director of the Arkansas Department of Correction. His sole point on appeal is that the

circuit court erred in dismissing his petition without holding a hearing. We affirm the circuit

court’s order.

       On April 25, 2012, Gooch filed a pro se petition for writ of habeas corpus. In it,

Gooch alleged four bases for issuance of the writ: (1) that he was not sentenced according to

statute; (2) that the sentencing court lacked subject-matter jurisdiction; (3) that the sentencing

court illegally sentenced him to capital-felony murder when he had been charged with

murder in the first degree; and (4) that his constitutional rights were violated when he was

sentenced for a crime with which he had not been charged. Relevant to the instant appeal,
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Gooch urged that his commitment was invalid on its face because he had been charged with

and pleaded guilty to the offense of murder in the first degree, but was sentenced for the

offense of capital-felony murder.

       Gooch asserted that his judgment and his commitment orders inaccurately stated that

he had pleaded guilty to and been sentenced for capital-felony murder, “an offense with

which he was never charged.” He contended that Arkansas Statutes Annotated § 41-2205

defined the offense of murder in the first degree and that Ark. Stat. Ann. § 41-2227 set forth

the penalty therefor of death or life imprisonment, while capital-felony murder was a separate

charge defined under Ark. Stat. Ann. § 41-4702, with its sentence being death or life

imprisonment without parole pursuant to Ark. Stat. Ann. § 41-4706. Because he was charged

with first-degree murder, but was sentenced to life imprisonment without parole for capital-

felony murder, Gooch argued, his commitment was invalid on its face, and habeas relief was

warranted.1

       Hobbs opposed Gooch’s petition and asserted that Gooch had been properly charged

with the “highest homicide offense available” in 1975, which was murder in the first degree,

a capital felony. Hobbs contended that, at that time, the sentence authorized for the type of

first-degree murder alleged was either death or life imprisonment without parole, as it was a

capital-felony offense. More specifically, Hobbs asserted, Ark. Stat. Ann. § 41-2205 was the

substantive statute under which Gooch was charged, while Ark. Stat. Ann. §§ 41-4702 and

41-4703 were the statutes that set forth the possible penalties for that charge. Hobbs averred


       1
        Gooch retained counsel before filing a reply to Hobbs’s response to his petition.

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that Gooch’s “crimes were properly referred to in the body of the judgment as ‘capital felony

murder,’ . . . because they were capital felonies.” Likewise, Hobbs claimed, the sentence

Gooch received for “capital felony” murder was life without parole; therefore, Hobbs

maintained, Gooch’s judgment and his commitment orders were not invalid on their face, and

his claim was without merit.

       The circuit court dismissed Gooch’s petition by its order filed July 16, 2012. In the

order, the circuit court ruled, in pertinent part, that Gooch’s penitentiary commitment order

“specifically reads that the petitioner entered a plea of guilty to capital felony murder for two

(2) charges. The resulting sentence was within the range of punishment as established by the

law at the time he committed the offenses.” The order further denied Gooch’s request for

a hearing, finding that “[w]hile the petition may have stated one cognizable ground for habeas

relief, petitioner failed to state probable cause for issuance of the writ.” It is from this order

that Gooch now appeals.

       For his sole point on appeal, Gooch argues that the circuit court erred in dismissing

his habeas petition. He claims, as he did below, that murder in the first degree, a capital

felony, the offense with which he was charged, and capital-felony murder, the offense for

which he was sentenced, are separate offenses with each having a separate penalty. He

contends that because his sentencing orders reflect that he was sentenced in accord with the

offense of capital-felony murder, an offense with which he had never been charged, his

commitment was invalid on its face, and the circuit court erred in dismissing his petition.

Hobbs counters that Gooch was sentenced correctly and in accord with the sentencing statutes


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in effect at the time.

       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. See 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. See 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, and, even if a cognizable claim is

made, the writ does not have to be issued unless probable cause is shown. See id. Lastly, an

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

of habeas corpus. See id.

       A review of the record in the instant case reveals that the informations filed against

Gooch provide that he was charged with three counts of “MURDER IN THE FIRST

DEGREE, A CAPITAL FELONY (41-2205),” as he did unlawfully “and feloniously, murder

[the victims] during the perpetration of a robbery.”2 The judgment then recited:



       2
      While there are three informations present in the instant record, it reflects that
commitment orders were entered on only two of the three counts.

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       [A]fter both the State of Arkansas and the defendant had waived the Jury and the State
       of Arkansas had waived the death penalty, and by leave of the Court the defendant
       does enter a plea of guilty to the charge of Capital Felony Murder. The Court, in the
       presence of defendant and his Counsel, after advising the defendant of his right to a
       Jury trial, the elements of the crime for which he was charged, and after explaining the
       effect of the plea of guilty to the defendant, and the defendant admitting to the Court
       his participation in the crime as charged, the Court accepts the said plea of guilty, and
       fixes his punishment at Life Without Parole [with credit for time spent in the county
       jail].

Likewise, the penitentiary-commitment orders reflected the trial court’s acceptance of

Gooch’s “said plea of guilty to the crime of Capital Felony Murder and fixed the defendant’s

punishment at life without parole.”

       We must turn then to the statutory provisions in effect at the time of Gooch’s offense,

which occurred on October 20, 1975. Gooch was charged with first-degree murder pursuant

to Ark. Stat. Ann. § 41-2205, which at the time provided:

               All murder which shall be perpetrated by means of poison, or by lying in wait,
       or by any other kind of wilful, deliberate, malicious and premeditated killing, or which
       shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape,
       robbery, burglary or larceny, shall be deemed murder in the first degree.

Ark. Stat. Ann. § 41-2205 (Repl. 1964) (emphasis added). This court previously recognized

two classes of first-degree murder within that section: (1) those committed in the perpetration

of or attempts to perpetrate named crimes; and (2) those committed by wilful, deliberate,

malicious, and premeditated killing. See Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965).

With regard to the former of the two classes, we have used the term “felony murder.” See,

e.g., Murray v. State, 249 Ark. 887, 462 S.W.2d 438 (1971).

       In 1973, the General Assembly enacted Act 438, which reclassified felonies for the

purpose of sentence and further set forth the punishment for each category of felony. See Act

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438 of 1973; Ark. Stat. Ann. §§ 41-4701 to -4716 (Supp. 1973); see also Rogers v. State, 265

Ark. 945, 582 S.W.2d 7 (1979) (per curiam). Arkansas Statutes Annotated § 41-4701

reclassified felonies, for the purpose of sentence, into four categories: (1) capital felony, (2) life

felony without parole, (3) life felony, and (4) felony. Section 41-4702 defined the crimes

constituting capital felonies and included “the unlawful killing of a human being when

committed by a person engaged in the perpetration of or in the attempt to perpetrate arson,

rape, robbery, burglary, kidnaping, or mass transit piracy.” Ark. Stat. Ann. § 41-4702(A).

That section further provided that capital felonies were punishable as provided in Ark. Stat.

Ann. § 41-4706. See id.

       In the instant case, the informations averred that Gooch had committed murder during

the course of a robbery, and he was charged with murder in the first degree, a capital felony.

In other words, of the two classes of first-degree murder in section 41-2205, Gooch was

charged with the class of felony murder. See, e.g., Murray, supra. Following the passage of Act

483, felony murder was an offense classified as a capital felony.3 See Ark. Stat. Ann. § 41-

4702(A); see also Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). As it was a capital

felony, Gooch’s crime was punishable “by death by electrocution or by life imprisonment


       3
         It is at this point in the analysis that Gooch’s argument that he should have received
a life sentence under Ark. Stat. Ann. § 41-2227 (Repl. 1964), fails. Indeed, section 41-2227
set forth a penalty for murder in the first degree of “death (by hanging of the neck) [or life
imprisonment].” (Brackets and parentheses, indicating insertions by the compiler, in original).
However, Act 438 of 1973 reclassified all felonies and established new “sentencing
procedures.” Giles v. State, 261 Ark. 413, 420, 549 S.W.2d 479, 483 (1977), overruled on other
grounds by Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). When the felony-murder
class of first-degree murder was classified as a capital felony, the sentencing provisions of
section 41-4706 became apposite.

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without parole.” Ark. Stat. Ann. § 41-4706; see also Butler v. State, 261 Ark. 369, 549 S.W.2d

65 (1977) (acknowledging that the only two alternative punishments for a capital felony were

death or life imprisonment without parole). Accordingly, where Gooch was sentenced to life

imprisonment without parole on his plea of guilty to capital-felony murder, he was sentenced

correctly and in accord with the apposite sentencing statutes. Because Gooch’s judgment of

conviction was not illegal on its face, habeas relief was not warranted, and the circuit court

did not err in dismissing Gooch’s petition.

       Affirmed.

       Stuart Vess, for appellant.

       Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.




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