Oscar Willingham v. State of Arkansas, 631 S.W.3d 558

Oscar Willingham pled guilty (Oct. 22, 2012) to aggravated residential burglary, aggravated robbery, kidnapping, and theft of property as part of a plea deal in which the State agreed to withdraw habitual-offender charges.
Plea transcript shows Willingham was advised the theft count was a Class B felony (theft by threat) with a 20-year maximum; the court pronounced a 20-year sentence on the theft count.
The original 2012 sentencing order misidentified the theft offense under a Class D statutory subsection (value-based theft) and incorrectly recorded a habitual-offender conviction; it also imposed a 20-year suspended sentence for kidnapping to run consecutively to other terms.
Willingham filed petitions under Ark. Code Ann. § 16-90-111 to correct an illegal sentence; the circuit court entered a 2020 nunc pro tunc order that designated the theft as Class B but left other clerical errors uncorrected.
The circuit court denied further relief; Willingham appealed. The Supreme Court found clerical errors and a facially illegal suspended sentence and remanded for a second nunc pro tunc order correcting the theft description and code section, deleting the habitual-offender notation, and ordering the suspended kidnapping sentence to run concurrently.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentencing order imposed a sentence exceeding the statutory maximum by misclassifying the theft count as Class D	Willingham: sentencing order showed theft as Class D and sentence exceeded Class D maximum	State: charging instrument and plea transcript show theft was by threat (Class B); court pronounced Class B sentence	Court: Clerical error in sentencing order; record supports Class B theft by threat and sentence of 20 years is lawful; amend nunc pro tunc to correct code citation
Whether the sentencing order incorrectly reflects a habitual-offender conviction despite dismissal	Willingham: order incorrectly lists habitual-offender status contrary to plea agreement	State: concedes this was a clerical error to be corrected	Court: Agreed; remand to remove habitual-offender notation nunc pro tunc
Whether the suspended 20-year sentence for kidnapping may run consecutively to other imprisonment terms	Willingham: (raised on appeal) consecutive suspended sentence is illegal	State: did not successfully justify consecutive suspension	Court: A suspended sentence may not run consecutively to another term for a different offense; directed sentence be made concurrent

Millsap v. State, 2020 Ark. 38 (standard of review for denial of relief under § 16-90-111)
Redus v. State, 2019 Ark. 44 (§ 16-90-111 authorizes correction of illegal sentence at any time)
Jackson v. State, 2018 Ark. 209 (an illegal sentence is one illegal on its face and implicates subject-matter jurisdiction)
Fischer v. State, 2017 Ark. 338 (sentencing is a matter of statute)
McArty v. State, 2020 Ark. 68 (general rule: sentence within statutory maximum is not facially illegal)
Barnett v. State, 2020 Ark. 181 (circuit court may correct clerical errors nunc pro tunc; Rule 60(b) cited)
State v. Rowe, 374 Ark. 19 (clerical correction cannot make record say what it never said)
McKee v. State, 316 Ark. 174 (judgment of conviction must conform to the offense charged)
Walden v. State, 2014 Ark. 193 (a suspended sentence may not run consecutively to imprisonment for a different charge)
Scherrer v. State, 2019 Ark. 264 (court may address illegal or void sentences sua sponte)