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                  SUPREME COURT OF ARKANSAS
                                        No.   CV-12-273

JIMMY BUMGARDNER                                   Opinion Delivered February 20, 2014
                               APPELLANT
                                                   PRO SE APPEAL FROM THE
V.                                                 JEFFERSON COUNTY CIRCUIT
                                                   COURT [NO. 35CV-11-771]

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


                                        PER CURIAM

       In 2005, appellant Jimmy Bumgardner was found guilty by a jury of possession of

methamphetamine with intent to deliver, possession of drug paraphernalia, and possession of

pseudoephedrine. The trial court sentenced appellant as a habitual offender to consecutive

terms of 720 months’, 240 months’, and 144 months’ imprisonment, respectively. He was also

fined a total of $15,000. The Arkansas Court of Appeals affirmed. Bumgardner v. State, CACR-

05-963 (Ark. App. Jun. 14, 2006) (unpublished) (Bumgardner I). Thereafter, appellant filed a

petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2005),

which was denied. This court affirmed the denial. Bumgardner v. State, CR-07-366 (Ark. Sept. 18,

2008) (unpublished per curiam) (Bumgardner II). Appellant then filed a pro se petition for writ

of habeas corpus in the Circuit Court of Lincoln County, and the petition was denied. We

dismissed the appeal on the basis that the Lincoln County Circuit Court no longer had personal

jurisdiction over appellant because, after filing his petition, he had been transferred from the

Varner Unit in Lincoln County to the Tucker Unit in Jefferson County. Bumgardner v. Norris,
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2011 Ark. 334 (per curiam) (Bumgardner III).

       In 2011, appellant filed in the Jefferson County Circuit Court, the county in which he

remains incarcerated, a second pro se petition for writ of habeas corpus. The circuit court

denied the petition by written order, finding that the trial court had jurisdiction and the authority

to render the judgment. The circuit court also noted that appellant had unsuccessfully argued

the same issues raised in his habeas petition on direct appeal and in a Rule 37.1 petition.

Appellant has lodged an appeal in this court. We affirm the circuit court order.

       The burden is on the petitioner in a habeas-corpus petition to establish that the trial court

lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis

for a finding that a writ of habeas corpus should issue. Culbertson v. State, 2012 Ark. 112 (per

curiam). Under our statute, a petitioner who does not allege actual innocence and proceed under

Act 1780 of 2001 Acts of Arkansas must additionally make a showing by affidavit or other

evidence of probable cause to believe that he is illegally detained. Ark. Code Ann. § 16-112-

103(a)(1) (Repl. 2006); Darrough v. State, 2013 Ark. 28 (per curiam). A circuit court’s denial of

habeas relief will not be reversed unless the court’s findings are clearly erroneous. Justus v. Hobbs,

2013 Ark. 149 (per curiam).

       On appeal, appellant raises a number of arguments to support his contention that the trial

court lacked jurisdiction and the authority to sentence him. He claims that after accepting the

jury’s recommendation that his sentence be served concurrently, the trial court, acting without

jurisdiction or authority and in violation of his constitutional rights, held a “resentencing

hearing” and modified his sentences to run consecutively. He also claims that the sentences



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were imposed consecutively by the trial court due to the court’s “vindictiveness” stemming from

its desire to punish him for receiving the benefit of executive clemency in a previous sentence.

       While appellant attempts to characterize an in-court meeting between the trial court,

counsel, and the prosecutor as a “resentencing hearing” when the trial court amended his

sentence from the imposition of concurrent terms to consecutive terms, we rejected this

contention in Bumgardner II and noted that the trial court stated specifically at the meeting that

it had always been its intent to have the sentences run consecutively. Affirming the trial court’s

denial of appellant’s petition for postconviction relief in Bumgardner II, we recounted the facts,

as relevant to this appeal, as follows:

               At the conclusion of the sentencing phase of the jury trial, the trial court
       pronounced appellant’s sentences in conformity with the jury’s recommendation,
       including the provision that the sentences be served concurrently. The trial court did not
       enter the judgment at that time.

               A week after the jury trial, the court spoke to counsel on the record in the
       presence of the prosecutor. The court informed counsel that it would be entering a
       judgment in which the sentences would run consecutively rather than concurrently. The
       trial court noted that it had always intended to sentence appellant to consecutive terms
       but had inadvertently used the incorrect term from the bench at the close of the jury trial.
       In this conversation with trial counsel, the court set out the reasons it considered in
       support of consecutive sentences. At the end of the meeting, the court noted that it
       wanted to inform counsel so that the judgment would not “come as [a] surprise” to
       counsel and appellant.

Bumgardner II, CR-07-366, slip op. at 7-8..

       On direct appeal, appellant challenged the imposition of the consecutive sentences on

the basis that the judgment-and-commitment order did not reflect the trial court’s ruling at trial,

and the court of appeals held that the trial court was acting within its authority to impose the

sentences consecutively. In its opinion, the court of appeals referred to the authority of the trial


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court to order sentences to run consecutively and the requirement that judgment-and-

commitment orders are effective upon entry of record. Bumgardner I, CACR-05-963, slip op. at

4. Thus, to the extent that appellant is raising the argument that he is entitled to habeas relief

because the trial court did not have the authority or jurisdiction to impose the sentences

consecutively, this claim is barred by the law-of-the-case doctrine. See Pitts v. Hobbs, 2013 Ark.

457 (per curiam); Strong v. Hobbs, 2013 Ark. 376 (per curiam) (explaining that, where the merits

of a claim were addressed and adjudicated in a prior appellate decision, that issue is settled and

may not be revisited in a subsequent appeal).

       As to appellant’s challenge to the consecutive sentences based on the violation of myriad

constitutional rights, including the right to notice and an opportunity to be heard, the trial court’s

“vindictiveness” in sentencing him, and its consideration of inadmissible evidence in imposing

the sentences, these arguments fail as they are based on appellant’s erroneous characterization

of the in-court meeting as a “resentencing hearing.” In Bumgardner II, appellant argued that

counsel was ineffective for failing to ensure that he was physically present during his sentencing

hearing and for failing to object to the proceeding being held without appellant’s attendance.

Affirming the trial court’s finding that counsel was not ineffective on these bases, we held that

appellant failed to demonstrate that he was required to be physically present during the meeting

or that what transpired was anything more than a meeting where the court made a correction

to reflect its original intention to use the word “consecutively” rather than “concurrently.”

Bumgardner II, CR-07-366, slip op. at 8-9. The issue of whether the proceeding was tantamount

to a sentencing hearing has been addressed and adjudicated in a prior appellate decision. Again,



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the law-of-the-case doctrine dictates that an issue raised and concluded in a prior appellate

decision may not be revisited in a subsequent appeal. Strong, 2013 Ark. 376. Thus, appellant’s

arguments, which rely on his characterization of what occurred as a hearing, cannot be

considered. See Pitts, 2013 Ark. 457; Strong, 2013 Ark. 276.

        Finally, appellant seems to contend that error occurred because the trial court did not

allow him jail-time credit for the eight days that he served in jail on each of his three “concurrent

sentences” between the trial court’s pronouncement from the bench that the sentences were

imposed to run concurrently and the imposition of the sentences consecutively. The judgment-

and-commitment order reflects that appellant received a total of sixteen days of jail-time credit.

While appellant attempts to characterize his claim as one based on a violation of his right to due

process and the prohibition against double jeopardy, it is essentially a request for jail-time credit.

A request for jail-time credit is a request for modification of a sentence imposed in an illegal

manner, not an allegation of an illegal sentence, and as such must be raised in a proceeding

pursuant to Arkansas Rule of Criminal Procedure 37.1. Pineda v. Norris, 2009 Ark. 471. An

allegation that the judgment fails to reflect a jail-time credit is not a claim cognizable in a petition

for writ of habeas corpus. Id.

        Affirmed.

        Jimmy Bumgarner, pro se appellant.

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




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