                                    Cite as 2014 Ark. 439

                  SUPREME COURT OF ARKANSAS
                                       No.   CR-14-686
                                                  Opinion Delivered October 23, 2014

                                                  PRO SE APPELLANT’S MOTIONS
RODNEY W. McCLANTON                               FOR APPOINTMENT OF COUNSEL
                   APPELLANT                      AND FOR EXTENSION OF BRIEF
                                                  TIME
V.                                                [CRITTENDEN COUNTY CIRCUIT
                                                  COURT, NO. 18CR-05-151]
STATE OF ARKANSAS
                                 APPELLEE         HONORABLE RANDY PHILHOURS,
                                                  JUDGE

                                                  APPEAL DISMISSED; MOTIONS
                                                  MOOT.

                                       PER CURIAM

       On June 27, 2005, judgment was entered in the Crittenden County Circuit Court

reflecting that appellant Rodney W. McClanton had entered a plea of guilty to the sale or

delivery of a controlled substance and sentenced as a habitual offender to 120 months’

imprisonment in Case No. 18CR-05-151. Imposition of an additional sentence of 180 months’

imprisonment was suspended.

       On July 11, 2012, the State moved to revoke the suspended sentence, and appellant

entered a plea of guilty to having violated the terms of the suspended sentence in Case No.

18CR-05-151. He also entered a plea of guilty to robbery and being a felon in possession of a

firearm in a separate case, No. 18CR-12-741. He was sentenced to 360 months’ imprisonment

as a habitual offender in Case No. 18CR-05-151. In Case No. 18CR-12-741, imposition of a

240-month sentence on each count was suspended.

       On March 21, 2014, appellant filed in the trial court in Case No. 18CR-05-151 a pro se

petition to correct the sentence imposed in 2012 on revocation of the suspended 2005 sentence.
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The petition was filed pursuant to Arkansas Code Annotated section 16-90-111 (Supp. 2006).

He alleged in the petition that his attorneys only spoke with him briefly before he was rushed

into entering the plea in 2012 and that the evidence was not sufficient to sustain the judgment

of conviction.

       The trial court denied the petition, and appellant lodged an appeal here from the order.

Appellant now asks for appointment of counsel to represent him on appeal and an extension

of time to file his brief-in-chief. As it is clear from the record that appellant could not prevail

on appeal, the appeal is dismissed, and the motions are moot. An appeal from an order that

denied a petition for postconviction relief, including an appeal from an order that pertained to

a petition under section 16-90-111, will not be permitted to go forward where it is clear that

there is no merit to the appeal. Moore v. State, 2014 Ark. 231 (per curiam).

       Appellant’s claim that he was not properly advised by his attorneys and hurried into

pleading guilty was a claim of ineffective assistance of counsel that was cognizable under our

postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (2012). A petition that states a

claim for postconviction relief cognizable under Rule 37.1 is governed by that rule regardless of

the label placed on it by a petitioner. Ussery v. State, 2014 Ark. 186 (per curiam). To the extent

that a claim is cognizable under the Rule, section 16-90-111 has been superseded, and any

allegation that can be considered under Rule 37.1 is subject to the time limitations contained in

the Rule. Id.

       Pursuant to Rule 37.2, where an appellant entered a plea of guilty, a petition must be filed

within ninety days of the date that the judgment was entered-of-record. Ark. R. Crim. P.

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37.2(c)(i) (2012). The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and,

if they are not met, the trial court lacks jurisdiction to grant postconviction relief. Talley v. State,

2012 Ark. 314 (per curiam). The petition in the instant case was not timely filed because

appellant filed it more than ninety days after the judgment had been entered of record in 2012;

accordingly, the trial court had no jurisdiction to grant the relief sought. When the lower court

lacks jurisdiction, the appellate court also lacks jurisdiction. Ussery, 2014 Ark. 186.

        Even if considered under the provision in section 16-90-111 that allows the trial court

to correct an illegal sentence at any time, appellant was entitled to no relief. Appellant did not

claim that the sentences imposed were outside the statutory range for the offense. Rather,

appellant argued that the sentences imposed were illegal because the evidence was not sufficient

to sustain the judgment. Generally, with few exceptions not applicable to the present case, by

pleading guilty, appellant waived any claim that the evidence was insufficient to support the

charge. See Thacker v. State, 2012 Ark. 205 (per curiam).

        While a claim that a sentence is illegal presents an issue of subject-matter jurisdiction that

can be addressed at any time, Skinner v. Hobbs, 2011 Ark. 383 (per curiam), the claim, as

advanced in appellant’s petition, did not allege an illegal sentence of the type that is jurisdictional

in nature. Instead, the ground for relief raised in appellant’s petition was of the type that should

have been raised in the trial court, or, to the degree that the allegation concerned whether

counsel was effective with respect to counsel’s advice to appellant in the guilty-plea proceeding,

in a petition for postconviction relief pursuant to Rule 37.1. Allegations concerning the

sufficiency of the evidence that constitute a challenge to a sentence, which is within the statutory

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range, are properly made at trial. See Gardner v. Hobbs, 2014 Ark. 346 ___ S.W.3d ___ (per

curiam). Section 16-90-111 did not provide a means to attack a sentence on the grounds of

whether the evidence was sufficient to sustain the judgment or mere trial error. See Ussery, 2014

Ark. 186.

       Appeal dismissed; motions moot.

       Rodney W. McClanton, pro se appellant.

       No response.




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