                                    Cite as 2015 Ark. 465

                SUPREME COURT OF ARKANSAS
                                       No.   CV-15-567

CHARLES PHILYAW                                   Opinion Delivered   December 10, 2015
                               APPELLANT
                                                  APPEAL FROM THE PULASKI
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. 60CV-11-4433]

WENDY KELLEY, DIRECTOR,                           HONORABLE WENDELL GRIFFEN,
ARKANSAS DEPARTMENT OF                            JUDGE
CORRECTION
                 APPELLEE                         AFFIRMED.


                          PAUL E. DANIELSON, Associate Justice


       Appellant Charles Philyaw appeals from the order of the Pulaski County Circuit Court

denying his petition for writ of habeas corpus. He asserts that the circuit court erred in

denying his petition based on his claims that (1) the trial court lacked jurisdiction to impose

a sentence of life imprisonment based on a separate, uncharged offense of attempted capital

murder; (2) the trial court lacked jurisdiction to sentence him to a term of life imprisonment

when the State had waived life as a possible punishment in the charging information; and (3)

his sentence to life imprisonment was in violation of the prohibition against cruel and unusual

punishment. We affirm the circuit court’s order.

       Philyaw was charged with, tried, and convicted of aggravated robbery, stemming from

the 1981 robbery in Miller County of the Cabana Liquor Store in Texarkana. He was

sentenced to life in prison and a fine of $12,000. Due to a strange twist procedurally, this
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court affirmed both his conviction and an order denying him postconviction relief pursuant

to Arkansas Rule of Criminal Procedure 37 in the same opinion. See Philyaw v. State, 292

Ark. 24, 728 S.W.2d 150 (1987), overruled by Thomas v. State, 322 Ark. 670, 911 S.W.2d 259

(1995) (per curiam), to the extent that Philyaw held that an allegation of ineffective assistance

of counsel for failing to raise the issue of sufficiency of the evidence could not be grounds for

relief under Rule 37. Philyaw was further convicted of attempted capital murder for having

pointed a gun at an arresting officer when he was apprehended in Hempstead County for the

robbery in Miller County and was sentenced to twenty years’ imprisonment; that conviction

was reversed, however, because Philyaw “was neither represented by counsel nor knowingly

waived his right to representation.”1 Philyaw v. State, 288 Ark. 237, 248, 704 S.W.2d 608,

613–14 (1986), overruled by Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996), to the

extent it suggested that a denial-of-counsel claim may be raised in a Rule 37 petition. Most

recently, we denied a petition by Philyaw to reinvest jurisdiction with the trial court so that

he could proceed with a petition for writ of error coram nobis, as well as his motion seeking

the appointment of counsel to represent him in the proceeding. See Philyaw v. State, 2014

Ark. 130 (per curiam).

       We turn now to the instant appeal. Philyaw filed his petition for writ of habeas corpus

asserting the aforementioned claims on September 14, 2011. The Attorney General, on behalf

of Appellee, Wendy Kelley, the Director of the Arkansas Department of Correction (“the


       1
        According to Philyaw’s corrected statement of the case that was tendered to this court,
the charge of attempted capital murder was eventually dismissed.


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ADC”),2 filed a memorandum in opposition to Philyaw’s petition on March 19, 2012. On

March 30, 2015, the circuit court filed its order denying the petition.

       In its order, the circuit court found that Philyaw’s judgment-and-commitment order

was plain on its face and that no indication was present that he had been sentenced to life

imprisonment for any crime other than aggravated robbery. Additionally, the circuit court

found that the charging document’s recitation of punishment, or lack thereof, had no effect

on the legality of Philyaw’s sentence. With respect to Philyaw’s third claim, the circuit court

found that Philyaw’s sentence to life imprisonment was within the range of punishment for

aggravated robbery at the time Philyaw committed the offense. It further found that, to the

extent that Philyaw claimed the trial court abused its discretion in failing to reduce his

sentence, the circuit court lacked jurisdiction to answer the question. It is from this order that

Philyaw now appeals.

       For his first point on appeal, Philyaw argues that the circuit court erred in denying his

claim that the trial court lacked jurisdiction to sentence him to life imprisonment on the

separate, uncharged offense of attempted capital murder. Citing to trial testimony and the

prosecutor’s closing argument, which referenced the events of his apprehension in Hempstead

County following the robbery, he submits that the “subsequent acts for which Appellant was

not charged in Miller County cannot form the factual basis for a sentence on the charged

offense of aggravated robbery.” He contends that, because he was not charged with



       2
        At the time of filing, Ray Hobbs was Director of the ADC.


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attempted capital murder in the Miller County information, he was tried and punished for a

charge without formal accusation. In the absence thereof, he claims, the trial court acquired

no jurisdiction, and his trial and conviction were nullities.

       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.

       Here, Philyaw contends that the circuit court lacked jurisdiction to sentence him to

life imprisonment for attempted capital murder when he was not charged with that offense,

but only aggravated robbery. The judgment-and-commitment order in Philyaw’s case,

however, reflects that he was convicted solely for the offense of aggravated robbery in


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violation of Arkansas Statutes Annotated § 41-2102. The face of the order simply gives no

indication that Philyaw was in any way sentenced for attempted capital murder. Furthermore,

to the extent that Philyaw takes issue with the admission of evidence or improper argument,

claiming that it may have contributed to his sentence of life, such a challenge is not cognizable

in a habeas proceeding. See Craig v. Hobbs, 2012 Ark. 218 (per curiam) (recognizing that the

admissibility of evidence is a matter to be addressed at trial and on the record on direct appeal,

not in a habeas proceeding). Accordingly, we hold that the circuit court did not err in

denying Philyaw habeas relief on this basis.

       Philyaw next argues that the circuit court erred in denying him habeas relief on his

claim that the trial court lacked jurisdiction to sentence him to life when the State had waived

life as a possible punishment in the information. He avers that the State’s information failed

to include life as a possible sentence for the charge of aggravated robbery, resulting in a waiver

of the State’s ability to pursue the maximum sentence. He claims that because the State had

waived its right to seek a sentence of life if Philyaw was convicted, the trial court exceeded

its jurisdiction when it imposed a life sentence after that waiver.

       In Arkansas, sentencing is entirely a matter of statute, and this court has consistently

held that sentencing shall not be other than in accordance with the statute in effect at the time

of the commission of the crime. See, e.g., Hale v. Hobbs, 2014 Ark. 405, 443 S.W.3d 533.

When the law does not authorize the particular sentence pronounced by a circuit court, that

sentence is unauthorized and illegal, and the case must be reversed and remanded. See id. In

this case, the robbery at issue took place in May 1981, and Philyaw was convicted of


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aggravated robbery in violation of Arkansas Statutes Annotated § 41-2102 (Supp. 1979). At

the time of his offense, aggravated robbery was a Class A felony, punishable by a term of

imprisonment “not less than five (5) years nor more than fifty (50) years, or life.”3 Ark. Stat.

Ann. § 41-901(1)(a) (Repl. 1977). Philyaw was sentenced to life, which was a permitted

sentence under the law at that time. Moreover, as Kelley correctly points out in her brief,

Philyaw has cited this court to no authority for his proposition that an information must

contain the relevant sentencing range to be sought or that the failure to include such a range

results in the State’s waiver of that sentence.4

       Claims of a defective information that raise a jurisdictional issue, such as those that raise

a claim of an illegal sentence, are cognizable in a habeas proceeding. See Anderson v. Kelley,

2015 Ark. 411, ___ S.W.3d ___ (per curiam).               However, allegations of a defective

information are not generally considered to be jurisdictional and are treated as trial error. See

id. Assertions of trial error and due-process claims do not implicate the facial validity of the

judgment or the jurisdiction of the trial court. See Maxwell v. Hobbs, 2013 Ark. 307 (per

curiam). Because Philyaw’s claim relating to the sentence set forth in the information fails to

       3
        We note that, pursuant to Act 620 of 1981, aggravated robbery became a Class Y
felony, punishable by a sentence of “not less than ten (10) years and not more than forty (40)
years, or life.” Ark. Stat. Ann. § 41-901(1)(a) (Supp. 1981); see also Ark. Stat. Ann. § 41-
2102(2) (Supp. 1981). However, Act 620 contained no emergency clause and therefore did
not become effective until June 17, 1981, well after the date of Philyaw’s offense. See Op.
Ark. Att’y Gen. No. 76 (1981).
       4
        While Philyaw does cite this court to Cathey v. State, 351 Ark. 464, 95 S.W.3d 753
(2003), and Fuller v. State, 256 Ark. 998, 511 S.W.2d 474 (1974), both are inapposite.
Neither stands for the proposition that the State necessarily waives a sentence if that sentence
was not previously set forth in the information.


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demonstrate either a lack of jurisdiction on the part of the trial court or the facial invalidity

of his judgment-and-commitment order, we affirm the circuit court’s denial of relief on this

claim.

         As his final point on appeal, Philyaw argues that the circuit court erred in denying his

claim that his sentence to life imprisonment violated the prohibition against cruel and unusual

punishment. He urges that his sentence of life imprisonment was the result of passion or

prejudice, when he was an unarmed accomplice to the aggravated robbery and only drove

the getaway car. He claims that it was the evidence relating to his pointing a gun at police

when apprehended that instilled such passion in the jury’s mind and resulted in his sentence.

He further asserts that his sentence of life was so wholly disproportionate to the nature of the

crime as to shock the moral sense of the community, especially since his accomplice is serving

only a fifteen-year sentence.

         As already set forth, Philyaw’s sentence to life imprisonment was within the statutory

range of punishment for the offense of aggravated robbery, and he does not dispute or

challenge his sentence on the basis that it was outside the statutory limits. The constitutional

prohibition against cruel and unusual punishment is directed toward the kind of punishment

imposed, not its duration, and the fact that a punishment is severe does not make it cruel or

unusual. See Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976). Indeed, we have held that

the imposition of a maximum sentence for an offense is not cruel or unusual punishment. See

id.




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       We have further held that we will not reduce or compare sentences that are imposed

within the statutory limits. See Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990). Unless

the punishment is a barbarous one unknown to law or so wholly disproportionate to the

nature of the offense as to shock the moral sense of the community, this court will not find

that punishment authorized by statute is cruel or unusual. See id. We simply cannot say that

Philyaw’s sentence, which was authorized by statute and found appropriate by the jury that

imposed it, is either.

       For the foregoing reasons, we affirm the circuit court’s order denying Philyaw’s habeas

petition.

       Affirmed.

       J. Brooks Wiggins, for appellant.

       Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




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