Charles Livingston v. Dexter Payne, Director, Arkansas Department of Correction, 665 S.W.3d 227

Livingston was charged as a habitual offender for rape but pled nolo contendere; the charge was reduced to second-degree sexual assault and he was convicted as a nonhabitual offender.
A May 2017 sentencing order placed Livingston on 60 months’ probation for the Class B felony conviction.
In December 2019 the trial court revoked probation and entered a sentencing order imposing 120 months’ imprisonment.
Livingston filed a pro se habeas petition in Jefferson County claiming the original probationary sentence was illegal (because of the habitual-offender charge) and that the revocation/increased term was therefore illegal.
The circuit court reviewed the face of the sentencing orders, found them facially valid, and denied/dismissed the habeas petition; Livingston raised plea-voluntariness for the first time on appeal, which the court declined to consider.
The Arkansas Supreme Court affirmed the denial of habeas relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Legality of original sentence (probation after habitual-offender charge)	Livingston: charged as habitual offender, so probation was unauthorized under §5-4-301(a)	Appellee: sentencing order shows conviction as nonhabitual; probation is permissible for a Class B felony	Court: sentencing order facially legal; 60 months’ probation within statutory parameters
Legality of probation revocation and 120-month sentence	Livingston: revocation sentence illegal because it increased an illegal original sentence	Appellee: upon revocation court may impose any sentence that could originally have been imposed; 120 months is within statutory maximum	Court: revocation sentence lawful; court had authority to impose 120 months
Whether habeas review may go behind face of judgment (charging documents/plea)	Livingston: charging/plea circumstances show illegality or lack of jurisdiction	Appellee: habeas inquiry is limited to face of sentencing order; cannot relitigate plea/charging without showing jurisdictional defect	Court: habeas limited to face of commitment; no jurisdictional defect shown; circuit court properly refused to go behind the judgment
Voluntariness of plea (raised on appeal)	Livingston: plea was not voluntary (first raised on appeal)	Appellee: issue not preserved below	Court: will not consider arguments raised for first time on appeal

Finney v. Kelley, 2020 Ark. 145, 598 S.W.3d 26 (describing when habeas relief is proper for facially invalid judgments or lack of jurisdiction)
Proctor v. Payne, 2020 Ark. 142, 598 S.W.3d 17 (habeas relief not available absent facial invalidity or jurisdictional defect)
Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283 (illegal sentence defined as one exceeding statutory maximum)
McArthur v. State, 2019 Ark. 220, 577 S.W.3d 385 (habeas review limited to the face of the sentencing order)
State v. O’Quinn, 2013 Ark. 219, 427 S.W.3d 668 (discussing probation eligibility in context of habitual-offender charges)
Smith v. Simes, 2013 Ark. 477, 430 S.W.3d 690 (prosecutor’s discretion to file or dismiss charges)
Willingham v. State, 2021 Ark. 177, 631 S.W.3d 558 (remanding to correct sentencing order where habitual-offender charge was dismissed as part of plea)
Braud v. State, 2022 Ark. 169 (court will not consider arguments raised first on appeal)