Burgie v. State, 2016 Ark. 144

In 2001 Eric C. Burgie was convicted by a jury of capital murder and aggravated robbery and sentenced to life without parole; this Court previously affirmed the convictions.
Burgie filed a pro se petition in the trial court on November 10, 2015, seeking relief under Ark. Code Ann. § 16-90-111 to correct an allegedly illegal sentence.
Section 16-90-111 allows a court to correct a sentence that is illegal on its face at any time; other time limits for postconviction relief were superseded by Ark. R. Crim. P. 37.2(c) but the jurisdictional ‘‘illegal on its face’’ provision remains.
Burgie argued his capital-murder conviction was illegal because, at the time of the offense, the capital-murder statute did not expressly enumerate “aggravated robbery” as a supporting underlying felony, and that applying Act 827 of 2007 (which later added aggravated robbery) was an ex post facto application.
The trial court denied relief; Burgie appealed and filed motions to supplement his brief, obtain appointed counsel, and expedite. The Supreme Court dismissed the appeal as having no merit and found the motions moot.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 16-90-111 permits relief where a sentence is "illegal on its face"	Burgie: sentence illegal because aggravated robbery was not enumerated as an underlying felony at time of offense	State: § 16-90-111 applies only where sentence is illegal on its face; here sentence lawful under precedent	Court: § 16-90-111 can reach facially illegal sentences, but Burgie’s sentence was not illegal; appeal dismissed
Whether aggravated robbery validly supported a capital-murder conviction despite not being expressly enumerated in the statute at the time	Burgie: conviction rests on post hoc expansion (Act 827 of 2007) — ex post facto and unlawful	State: aggravated robbery has long been treated as supporting capital murder; statutory wording does not bar convicting/sentencing for aggravated robbery as the underlying felony	Court: aggravated robbery supports capital murder under controlling precedent; no ex post facto problem; sentence lawful
Whether appeal should proceed and Burgie’s procedural motions merit relief	Burgie: requested substitute/supplemental briefs, appointment of counsel, expedited ruling	State: procedural motions unnecessary because appeal lacks merit	Court: appeal clearly lacks merit; dismissed; motions moot

Clark v. State, 373 Ark. 161 (2008) (discusses sentencing authority and relation of underlying felonies to capital murder)
Nooner v. State, 322 Ark. 87 (1995) (holds aggravated robbery can support capital-murder charge)
Simpson v. State, 274 Ark. 188 (1981) (aggravated robbery is a form of robbery and can underlie capital murder)
Walker v. State, 353 Ark. 12 (2003) (addressing relationship between underlying felony and capital-murder sentencing)

Appeal dismissed; motions moot.