White v. State, 540 S.W.3d 291

Background

Ricky Wayne White was convicted of aggravated robbery and, as a habitual offender, sentenced to 75 years in 1991; this court affirmed his conviction and mandate issued July 24, 1992.
White filed a petition to correct an illegal sentence on May 24, 2017—almost 25 years after the mandate.
He argued his sentence was illegal because two of the four prior convictions used to establish habitual-offender status were improperly admitted: one allegedly lacked counsel and one was a misdemeanor occurring after the robbery.
The trial court treated the petition as arising under Rule 37 (postconviction relief) rather than Ark. Code § 16-90-111 (facial illegality), found it untimely and successive, and alternatively rejected White’s evidentiary contentions.
The majority affirmed, holding White raised a challenge to the manner of imposition (Rule 37) not a facially invalid sentence under § 16-90-111; because the petition was filed long after Rule 37 deadlines, relief was denied.
Justice Hart dissented only on the procedural point of allowing a belated reply brief from an incarcerated appellant.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether White’s petition alleges a sentence that is illegal on its face under Ark. Code § 16-90-111	White: two prior convictions were unconstitutionally admitted, rendering the habitual-offender sentence illegal	State: White’s claims attack the manner the sentence was imposed (admission of priors), not the facial validity of the sentence	Held: Petition did not plead facial invalidity; sentence is within statutory range and not facially illegal under § 16-90-111
Whether the petition should be treated as a Rule 37 petition and is time-barred	White: (implicit) petition should proceed despite delay	State: Claim is cognizable under Rule 37 and is therefore subject to Rule 37.2(c) timing	Held: Claim is Rule 37 in nature; filed nearly 25 years late and untimely under Rule 37.2(c)
Whether contemporaneous objection was required to preserve challenge to sufficiency of priors used for habitual-offender finding	White: priors were improperly admitted so sentence is illegal	State: insufficiency/challenge to admission of priors requires contemporaneous objection to be preserved on appeal	Held: Court cited precedent that contemporaneous objection is required; challenge does not implicate facial validity
Whether the trial court erred in alternatively finding the priors were properly admitted	White: priors lacked counsel or were post-offense misdemeanor	State: priors were properly proved/admitted	Held: Trial court’s factual findings that priors were properly admitted were not clearly erroneous; alternative merits review unnecessary given time-bar but resolved against White

Key Cases Cited

Fischer v. State, 2017 Ark. 338, 532 S.W.3d 40 (standard of review for denial of postconviction relief)
State v. Johnson, 2010 Ark. 77, 360 S.W.3d 104 (questions of law reviewed de novo)
Coleman v. State, 257 Ark. 538, 518 S.W.2d 487 (presumption of validity of conviction)
Jenkins v. State, 2017 Ark. 288, 529 S.W.3d 236 (distinction between facially illegal sentences under § 16-90-111 and Rule 37 timing)
Gardner v. State, 2017 Ark. 230 (Rule 37.2(c) supersedes certain time limits except for facial illegality claims)
Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (need for contemporaneous objection to preserve challenge to habitual-offender proof)
Edwards v. Kelley, 2017 Ark. 254, 526 S.W.3d 825 (challenge to sufficiency of evidence for habitual-offender status does not implicate facial validity)