Atkins v. State
441 S.W.3d 19
Ark.
2014
Check Treatment

Marcus Terrell ATKINS, Appellant v. STATE of Arkansas, Appellee.

No. CR-12-533.

Supreme Court of Arkansas.

Sept. 25, 2014.

2014 Ark. 393

T-DROP lump sum from January 1, 2012, to July 1, 2012.

On appeal, appellants assert that the monthly retirement benefits Cooper actually received during that six-month period was $3,633 multiplied by 6 for $21,798. Appellants thus contend that Cooper did not sustain a loss in retirement benefits from the reduction of her T-DROP lump sum in the amount of $21,018 from January 1, 2012, to July 1, 2012.

The evidence presented by Cooper established that upon her retirement on January 1, 2012, her T-DROP lump sum was $103,557.89, and had she retired on July 1, 2012, her T-DROP lump sum would have been approximately $124,575.45. Thus, her T-DROP lump sum was reduced in the amount of $21,018 because she retired on January 1, 2012, rather than remaining employed for the full term of her contract through June 30, 2012, the end of her contract term and date of intended retirement. Furthermore, in , this court stated that it “is a general rule that recoveries from collateral sources do not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result.” (internal quotation marks omitted). The court held that unemployment compensation was a collateral source and was not to be deducted from a teacher‘s award of back pay. . We conclude that the collateral-source rule should likewise apply in the case at bar to retirement benefits paid to Cooper. We are mindful that in , this court held that a school district failed to prove that a teacher could have obtained other employment that would have mitigated the teacher‘s damages. We note that in , however, the collateral-source rule was not at issue. Accordingly, we affirm the circuit court‘s award.

Marcus Terrell Atkins, pro se appellant.

Dustin McDaniel, Att‘y Gen., by: Karen Virginia Wallace, Ass‘t Att‘y Gen., for appellee.

PER CURIAM.

In 2007, appellant Marcus Terrell Atkins was found guilty by a jury of first-degree battery, kidnapping, being a felon in possession of a firearm, and use of a firearm in commission of a felony. An aggregate sentence of 480 months’ imprisonment was imposed. The Arkansas Court of Appeals affirmed. .

Subsequently, appellant timely filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2007). The petition was denied. No appeal was taken, and this court ultimately granted leave for appellant to proceed with a belated appeal from the order. . On appeal, this court affirmed the order of the trial court. .

In 2012, appellant filed in the trial court a pro se petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2006), alleging that the trial court erred by sentencing him, itself, to fifteen years’ imprisonment for commission of a felony with a firearm pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2006) rather than allowing the jury to determine if the sentence should be imposed. Appellant further alleged that his attorney was ineffective for failing to object to the court‘s action. He sought to have the fifteen-year sentence vacated on the ground that it was illegal. The trial court dismissed the petition, and appellant brings this appeal.

This court has held that it will reverse the circuit court‘s decision granting or denying postconviction relief only when that decision is clearly erroneous. ; . A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. . We find no error and affirm the order.

First, appellant raised the claim of ineffective assistance of counsel concerning the trial court‘s decision not to submit the sentencing issue to the jury in his Rule 37.1 petition. On appeal from the Rule 37.1 order, we held that appellant had not demonstrated that his attorney was remiss, noting that one of appellant‘s codefendants, Kyron Watkins, had raised the same issue in his Rule 37.1 petition and we had affirmed the order denying relief in . . Moreover, even if the issue had not already been raised under Rule 37.1, section 16-90-111 does not provide a means to mount a collateral challenge to a judgment on the ground of ineffective assistance of counsel. .

With respect to appellant‘s assertion that the trial court erred in not submitting the sentencing issue to the jury, claims of mere trial error are not within the purview of section 16-90-111 inasmuch as the statute does not provide a means to address trial error. See (Assertions of constitutional error were not cognizable under section 16-90-111.). Trial error is a matter to be addressed during trial and on the record on direct appeal from the judgment. ; .

As to the claim that the sentence was illegal, a claim that a sentence is illegal presents an issue of subject-matter jurisdiction that can be addressed at any time. ; ; see . Arkansas Code Annotated section 16-90-111(a) provides authority to a trial court to correct an illegal sentence at any time. See ; . For that reason, the trial court had authority to grant relief under the statute if the sentence imposed on appellant was indeed illegal. .

Here, appellant did not claim that the fifteen-year sentence was outside statutory bounds. Section 16-90-111(a) provides that any person convicted of any offense that is classified by the laws of this state as a felon who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing court, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen years. Accordingly, the sentence was not excessive, and appellant did not establish that it was illegal. Sentencing in Arkansas is entirely a matter of statute. ; . No sentence shall be imposed other than as prescribed by statute. . A void or illegal sentence is one that is illegal on its face. ; . A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. ; . If a sentence is within the limits set by statute, it is legal. .

Affirmed.

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