Opposition Brief — Lemuel Whiteside, Petitioner v. Arkansas

No. 19-8668

Sn the Supreme Court of the Anited States

LEMUEL WHITESIDE,

Petitioner,

v.

STATE OF ARKANSAS,

Respondent.

On Petition for Writ of Certiorari

To the Supreme Court of Arkansas

SUPPLEMENTAL APPENDIX FOR RESPONDENT

STATE OF ARKANSAS

LESLIE RUTLEDGE

Arkansas Attorney General

NICHOLAS J. BRONNI

Arkansas Solicitor General

VINCENT M. WAGNER

Deputy Solicitor General

VADA BERGER

Senior Assistant Attorney General

Counsel of Record

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL

323 Center St., Suite 200

Little Rock, AR 72201

(501) 682-1052

vada. berger@arkansasag.gov

EEE

TABLE OF CONTENTS

PAGE

Whiteside v. State, 2019 Ark. 349, 588 S.W.3d 720 wo eeeeeeeseeeeeeeees Supp. App. 1

Mandate, Whiteside v. State, Arkansas Supreme Court Case No. CR-10-1200 (issued

May 80, 2018) oc cccccccsssssssssssssssssesseeessseeeesssssesseeeeesseeseceeeeeeseeseseeees Supp. App. 10

Order, Whiteside v. Kelley, Jefferson County Circuit Court Case No. 35CV-14-150

(entered Mar. 4, 2015)... cccccccccccccccesceeeesenseeeeeeessseesesessrsessessnsseasess Supp. App. 11

Statement of Case and Argument in Appellant’s Brief, Whiteside v. State, Arkansas

Supreme Court Case No. CR-19-264 (filed May 20, 2019) ..0........00... Supp. App. 16

Argument in Appellant’s Reply Brief, Whiteside v. State, Arkansas Supreme

Court Case No. CR-19-264 (filed Aug. 12, 2019) .....ccceeceeceeeeseeseeeeeeeees Supp. App. 44

Cite as 2019 Ark. 349

SUPREME COURT OF ARKANSAS

No. CR-19-264

LEMUEL WHITESIDE Opinion Delivered: November 2 l, 2019

APPELLANT

V. APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

STATE OF ARKANSAS [60CR-09-1 183]

APPELLEE

HONORABLE BARRY SIMS, JUDGE

AFFIRMED.

ROBIN F. WYNNE, Associate Justice

Lemuel Session Whiteside appeals from the Pulaski County Circuit Court's order

denying his motion for a new trial or other relief, in which he sought a new sentencing

hearing on his aggravated-robbery conviction. He argues on appeal that his thirty-five-year

sentence for aggravated robbery violated the protection afforded him by the United States

Constitution because the jury was improperly instructed that it could consider and impose

a sentence of life imprisonment contrary to Graham v. Florida, 560 U.S, 48 (2010). We

affirm.

Whiteside was seventeen years old at the time he committed capital-telony murder

and aggravated robbery in connection with the robbery and death of James London. He

was initially sentenced to life in prison without parole for the capital murder and thirty-five

years in prison for the aggravated robbery; he was also given a fifteen-year sentencing

enhancement for employing a firearm in connection with the aggravated robbery. On

Supp. App. 1

direct appeal, this court affirmed. Whiteside v. State, 2011 Ark. 371, 383 S.W.3d 859

(Whiteside I). However, the Supreme Court of the United States granted his petition for

writ of certiorari, vacated the judgment, and remanded to this court for further

consideration in light of its recent decision in Miller v. Alabama, 567 U.S. 460 (2012). See

Whiteside v. Arkansas, 567 U.S. 950 (2012). In Miller, the Supreme Court held that

mandatory life sentences for juvenile offenders violates the Eighth Amendment’s

prohibition on cruel and unusual punishment.

On remand, this court considered whether Whiteside’s mandatory sentence! of life

without parole under Ark. Code Ann. § 5-10-L01(c) (Supp. 2007) was prohibited by the

Supreme Court's decision in Miller, supra. Whiteside v. State, 2013 Ark. 176, 426 S.W.3d

917 (Whiteside I). The case was briefed by the parties and orally argued before this court.

This court “reaffirmed” the decision in Whiteside I with the exception that the sentence for

capital murder was reversed and remanded for a resentencing hearing pursuant to Miller.

This court rejected Whiteside’s arguments that he should also be entitled to resentencing

. oo. . 2

on his aggravated-robbery conviction and its enhancement:

'Whiteside’s sentence of life imprisonment was mandatory because the only

authorized sentences for capital murder at that time were either life without parole or

death, and in Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court invalidated the

death penalty for juveniles.

*Specifically, he argued that that (1) Ark. Code Ann. § 1697-101 (Repl. 2006)

requires “the jury,” and not two different juries, to impose punishment in a case and (2)

because aggravated robbery is an elementincluded offense of capital murder, the jury's

punishment decision is necessarily a “unitary determination.”

2

Supp. App. 2

Whiteside’s sentence for aggravated robbery, as well as his sentence enhancement

for the use of a firearm, is authorized by statute and is not affected by the decision

in Miller. Thus, these sentences are still valid, and we remand only the sentence for

his capical-murder conviction.

Whiteside I], 2013 Ark. 176, at 9, 426 S.W.3d at 922.

On remand, on November 13, 2018, the circuit court entered a nunc pro tunc

amended sentencing order in which, by agreement of the parties, Whiteside was sentenced

to a concurrent term of ten years’ imprisonment for the capital murder. The sentences for

aggravated robbery and the firearm enhancement were expressly undisturbed and not at

issue in the resentencing. However, the order also stated that “Mr. Whiteside’s acceptance

of this agreement shall not act as a waiver to any appellate rights or rights to collaterally

attack his prior convictions in this case.”. On December 12, 2018, Whiteside filed the

motion for new trial or other relief that is at issue in the present appeal. He argued that he

was entitled to the retroactive benefit of Graham v. Florida, which held that the Eighth

Amendment prohibited imposition of a life sentence without a meaningful possibility of

parole for a juvenile offender convicted of a nonhomicide offense; that the aggravatedrobbery sentencing instruction, which included the option of a life sentence, resulted in a

constitutionally flawed sentencing process; and that the error in the sentencing instruction

warrants a new sentencing hearing on that conviction. The State filed a response in

opposition, essentially arguing that the circuit court had no jurisdiction to reconsider the

sentence imposed on the aggravated robbery, and Whiteside filed a reply. The circuit court

entered an order denying Whiteside’s motion, and this appeal followed.

3

Supp. App. 3

On appeal, Whiteside argues that his thirty-five-year sentence for aggravated

robbery, while within the statutory range, was “imposed illegally” because the circuit court

improperly instructed the jury, over the defense’s objection, that the applicable sentencing

range was ten to forty years, or life. He relies on the decision in Graham, supra. He

contends that “the jury was engaged in determining punishment in light of two

unconstitutional operating premises: that he would be subject to a life sentence on the

capital murder charge, and a sentence within the Class Y sentencing range of 10-40 years

confinement, or life, on the underlying felony charge of aggravated robbery.” Whiteside

points out that while the Graham issue was raised during trial and rejected by the circuit

court, the alleged defect in the sentencing instruction on aggravated robbery was not

argued in his direct appeal and has never been addressed by this court. Whiteside

characterizes this alleged error as an issue of “illegal sentence” or a “jurisdictional defect”

that can be raised at any time. He further argues that the imposition of the aggravatedrobbery sentence based on a defective instruction failing to recognize Graham violated his

right to due process of law in the sentencing process dictated by state law. For this

argument, he relies on Hicks v. Okluhoma, 447 U.S. 343 (1980), in which the Supreme

Court held that affirmance of Hicks’s mandatory forty-year sentence that was imposed

pursuant to a statute that had since been held unconstitutional violated his right to due

process under the Fourteenth Amendment because the state court assumed that a jury also

would have sentenced Hicks to forty years, the maximum sentence permitted under the

statutory sentencing range.

Supp. App. 4

In his conclusion and prayer for relief, Whiteside asks this court to reverse or vacate

both the chirty-tiveyear sentence for aggravated robbery and the consecutive fifteen-year

firearm enhancement’ imposed by the jury. Further, he requests that this court exercise its

authority to order the sentence imposed on the aggravated robbery count to a term of ten

years in the Arkansas Department of Correction, commensurate with the ten-year sentence

imposed on remand by the circuit court on the capital murder count, “to avoid the

irregularity in imposition of a greater punishment for aggravated robbery than for the

capital felony murder predicated on the lesser offense.”

The State presents several arguments against reaching the merits in this appeal.

First, the State argues that the appeal should be dismissed for lack of jurisdiction. On

remand, the circuit court was vested with jurisdiction only to the extent conferred by our

opinion and mandate. Ward v. State, 2017 Ark. 215, at 3, 521 S.W.3d 480, 482 (citing

Dolphin vu. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998). “The mandate is the official

notice of action of the appellate court, directed to the court below, advising that court of

the action taken by the appellate court, and directing the lower court to have the appellate

court’s judgment duly recognized, obeyed, and executed.” Ingle v. Ark. Dep't of Human

Servs., 2014 Ark. 471, at 5-6, 449 S.W.3d 283, 287. This court has explained:

‘Whiteside argues that the fifteen-year firearm enhancement “must be vacated” for

various reasons. Suffice it to say, the conviction for the underlying felony of aggravated

robbery was not reversed, and there is no basis for automatic reversal of the enhancement

under Ark. Code Ann. § 16-90-120(d) (“Any reversal of a defendant’s conviction for the

commission of the felony shall automatically reverse the prison sentence which may be

imposed under this section.”).

5

Supp. App. 5

[T]he “lower court is vested with jurisdiction only to the extent conferred by the

appellate court’s opinion and mandate.” City of Dover v. Barton, 342 Ark. 521, 525,

29 S.W.3d 698, 700 (2000) (quoting Dolphin, 335 Ark. at 118, 983 S.W.2d at 115).

Therefore, the question of whether the lower court followed the mandate is not

simply one of whether the lower court was correct in its construction of the case,

but also involves a question of the lower court’s jurisdiction. Id. at 118-19, 983

S.W.2d at 115. Similarly, when a case is remanded for a specific act, the entire case

is not reopened, but rather the lower tribunal is only authorized to carry out the

appellate court’s mandate, and the trial court may be powerless to undertake any

proceedings beyond those specified. Id. [fan appellate court remands with specific

instructions, those instructions must be followed exactly, to ensure that the lower

court’s decision is in accord with that of the appellate court. Id.

Ingle, 2014 Ark. 471, at 6-7, 449 S.W.3d at 287. In the present case, this court’s mandate

in Whiteside H] stated that “it is the decision of the Court that the judgment of the circuit

court is affirmed in part; reversed and remanded in part for the reasons set out in the

attached opinion.” The opinion was very clear that the circuit court was instructed to hold

a sentencing hearing for the capitalmurder conviction only; the sentence for aggravated

robbery and the sentence enhancement for the use of a firearm were expressly found to be

“still valid.” Thus, the circuit court had no authority to entertain appellant’s motion for

new trial or other relief concerning the sentence for aggravated robbery and firearm

enhancement. Although Whiteside concedes that this court held in Ward v. State, 2017

Ark. 215, 521 S.W.3d. 480, that the circuit court exceeded its jurisdiction on remand

when it failed to follow this court’s mandate, he nonetheless maintains that the point is

“academic” since the circuit court denied his motion for new trial; he contends that this

denial of relief preserved the error for review.

6

Supp. App. 6

The bottom line is that Whiteside’s Graham argument regarding the agyravatedrobbery jury instructions could have been raised in Whiteside | or Whiteside I], but it was

not. Instead, he waited until he was resentenced on the capital-murder conviction to raise

the issue for the first time in a motion for new trial. This was too late. The circuit court

was without jurisdiction to entertain an argument for resentencing on a conviction and

sentence that had been affirmed by this court. See Ward, supra. Thus, the circuit court did

not err by denying the motion for new trial or other relict, and we affirm.

Affirmed.

HART, J., dissents.

JOSEPHINE LINKER HART, Justice, dissenting. I dissent. Both the United States

and Arkansas Constitutions guarantee the accused a fair and impartial trial. See U.S.

Const. amend. V, VI, Ark. Const., Art. 2. This includes sentencing proceedings.

Separating Whiteside’s capital felony-murder conviction (for which he originally received a

mandatory sentence of life without the possibility of parole) from his aggravated-robbery

conviction (for which he received a sentence of an additional thirty-five years in prison

after the jury was told he could be sentenced to up to forty years, or life) defies the reality

of sentencing by jury.

At Whiteside’s first and only trial, the jury imposed both of these sentences at the

; : er ; ; 4

same time after considering the same evidence in the same case.” The aggravated robbery

Ac trial, the jury was not presented with evidence of the youth factors later

determined necessary in Miller v. Alabuma, 567 U.S. 460 (2012).

7

Supp. App. 7

conviction was a necessary element of the capital murder conviction. Any suggestion that

the jury's sentencing considerations for these offenses would not have informed each other

is simply a farce. Accordingly, even if the thirty-five-year sentence ultimately imposed by

the jury for the aggravated-robbery charge was within the applicable sentencing range, he

still should have been entitled to resentencing. See Glaze v. State, 2011 Ark. 464, 385

S.W.3d 203 (remanding for resentencing due to the jury's consideration of a sentencing

range authorized by a habitual-oftender statute, held to be repealed by implication, when a

properly instructed jury might have imposed a lesser minimum sentence under the

applicable law). However, after the U.S. Supreme Court reversed this court’s affirmances

of Whiteside’s convictions, this court limited the circuit court’s reconsideration of

sentencing to just the capitalmurder conviction. This was a breakdown in the appellate

process.

Whether based upon violation of Miller v. Alubama, 567 U.S. 460 (2012)

(prohibiting mandatory lite sentences for juvenile offenders) or of Gruhum v. Florida, 560

U.S. 48 (2010) (prohibiting life sentences without a meaningful possibility of parole for

juvenile offenders convicted of nonhomicide offense), Whiteside should be resentenced on

both the capital felony-murder and the aggravated-robbery convictions. Allowing Whiteside

to be resentenced on only one of these convictions does not reflect a fair and just

resolution, To fairly assess this issue, we should consider whether this court would have

answered these questions the same way if instead the jury had given Whiteside a bottom-

range sentence on the aggravated-robbery conviction (an entirely plausible outcome since

8

Supp. App. 8

che jury was operating under the assumption that Whiteside would already be sentenced to

lite in prison without the possibility of parole for the capital felony-murder conviction),

and it was the State asking this court to allow resentencing for both of Whiteside’s

convictions.

[ dissent.

J. Thomas Sullivan, for appellant.

Leslie Rutledge, Att'y Gen., by: David L. Eanes Jr., Ass’t Att'y Gen., for appellee.

9

Supp. App. 9

MANDATE

AFFIRMED IN PART;

REVERSED AND REMANDED IN PART

CRIMINAL

STATE OF ARKANSAS

In the Supreme Court

Proceedings of April 25, 2013

CR10-1200

LEMUEL SESSION WHITESIDE APPELLANT

v. Appeal from Pulaski Circuit, Seventh Division

(No. CR2009-1183)

STATE OF ARKANSAS APPELLEE

This criminal appeal was submitted to the Arkansas Supreme Court on the record of

the Circuit Court of Pulaski County, Seventh Division, and briefs of the respective parties.

After due consideration, it is the decision of the Court that the judgment of the trial court is

affirmed in part; reversed and remanded in part for the reasons set out in the attached

opinion.

Danielson, J., concurs.

IN TESTIMONY, that the above is a true copy of

the judgment of the Arkansas Supreme Court. I,

Leslie W. Steen, Clerk, set my hand and affix the

seal this 30" day of May, A.D. 2013.

Gabel ptr

Clerk Vy C

Supp. App. 10

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ARKANSAS

LEMUEL WHITESIDE PETITIONER

VS. No. CV-2014-170-5

WENDY KELLEY, Director,

Arkansas Department of Correction RESPONDENT

ORDER

Before the Court is petitioner Lemuel Whiteside’s petition pursuant to

Ark. Code Ann. § 16-90-111 (Supp. 2013) and Ark. Code Ann. §§ 16-112-101

et seq., (Repl. 2006). In 2010, a Pulaski County jury found petitioner guilty of

capital murder and aggravated robbery for which he was sentenced to life

without parole and 35 years, respectively, with the latter enhanced by 15 years

due to his use ofa firearm during the commission of the offense. Petition at

Exhibit A. Petitioner was 17 at the time he committed the offenses. Id.

Following various appellate proceedings, the Arkansas Supreme Court held that

petitioner was entitled to resentencing for his capital-murder conviction, with a

permissible range of punishment of 10 to 40 years or life. Whiteside v. State,

2013 Ark. 176, at 5-9, 426 S.W.3d 917, 920-22, cert. denied, 134 S. Ct. 311

(2013). Insofar as the Court is aware, that resentencing is still pending in

Pulaski County Circuit Court.

In this Court, petitioner is seeking relief from the 35-year sentence he

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received for his aggravated-robbery conviction on the ground that the sentence

mae 408 7

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Supp. App. 11 JEFFERSON COUNT 1, ARKANSAS)

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violates the Eighth and Fourteenth Amendments because the trial court

improperly instructed the jury that the sentencing range was 10 to 40 years or

life. In support of this claim, he principally relies on the holding of Graham v.

Florida, 560 U.S. 48, 75 (2010), that the Eighth Amendment forbids the

imposition of life without parole on a juvenile nonhomicide offender. He

claims that the inclusion of life as a permissible punishment rendered his 35-

year sentence illegal because the jury may have considered life when sentencing

him to 35 years’ imprisonment. Petition at 9,417. He adds that, because the

sentence for aggravated robbery is illegal, then, so, too, is its 15-year

enhancement for its commission with a firearm.

The Court lacks jurisdiction to entertain petitioner’s claims to the extent

that they are brought pursuant Ark. Code Ann. § 16-90-111. The Arkansas

Supreme Court has held that “it is the court where the judgment was entered

that has authority to act under Arkansas Code Annotated section 16-90-11 1.”

Wesley v. Hobbs, 2014 Ark. 260, at 2 (per curiam). The judgment here was

entered in Pulaski County Circuit Court, Petition at Exhibit A, and, thus, only

that court has jurisdiction to entertain a petition under § 16-90-111. To the

extent that the instant petition purports to request relief pursuant to § 16-90-11 1,

petitioner has filed it “in the wrong court[,]” Wesley, 2014 Ark. 260, at 2, and

his request for relief under that provision is hereby dismissed for lack of

2

Supp. App. 12

jurisdiction.

Petitioner's request for relief pursuant to the habeas-corpus statute, Ark.

Code Ann. §§ 16-112-101 et seq., likewise is dismissed because it fails to

demonstrate probable cause to believe that he is being “detained without lawful

authority[.]” Ark. Code Ann. § 16-112-103(a)(1). See, e.g., Craig v. Hobbs,

2012 Ark. 218, at 3-4 (per curiam)(holding that a habeas petition not supported

by probable cause is properly dismissed). For purposes of the habeas-corpus

statute, a detention is unlawful when the judgment imposing it is invalid on its

face or when the committing court lacked jurisdiction. E.g., id., at 2.

Petitioner’s claim that his sentence for aggravated robbery is illegal does not

state a claim of facial invalidity, and he does not purport to claim that the

committing court lacked jurisdiction.

The Arkansas Supreme Court has limited illegal-sentence claims

cognizable in habeas proceedings to those apparent ‘on the face of the

commitment order[.]" Murphy v. State, 2013 Ark. 155, at 4 (per curiam); see

also, e.g., Misenheimer v. Hobbs, 2012 Ark. 343, at 4 (per curiam)(refusing to

consider validity of convictions used to establish habitual-offender status in

habeas proceeding). Habeas proceedings thus are “not intended to require an

extensive review of the record of the trial proceedings[,]” with “the court’s

inquiry into the validity of the judgment . . . limited to the face of the

Supp. App. 13

commitment order.” Murphy, 2013 Ark, 155, at 3; but cf., e.g., Darrough v.

State, 2013 Ark. 28, at 3 (per curiam)(stating that habeas challenge that requires

only a “limited review” of a “limited number of documents” from record

permissible). Consistently with this formulation, a claim that a sentence is

unconstitutionally excessive despite its being within a permissible range is not a

cognizable habeas claim, Bliss v. Hobbs, 2012 Ark. 315, at 5 (per curiam)

(stating that due-process, vindictive-sentence claim not cognizable), nor is a

claim that a sentence was imposed in an illegal manner. Pineda v. Norris, 2009

Ark. 471, at 2 (per curiam).

Petitioner’s challenge to his sentence for aggravated robbery is not

cognizable under these standards. The error he claims is not apparent on the

face of the commitment order, as it requires resort to the record to examine the

trial court’s instructions to the jury. And, petitioner admits that the actual

sentence imposed on him for aggravated robbery — 35 years — fell within the

range permitted both by the Arkansas statute for a Class Y felony, see Ark.

Code Ann. § 5-4-401(a)(1)(Repl. 2006), and by the constitution. Petition at 6-7,

4] 12, 14. Moreover, the claim he makes is not an illegal-sentence claim, but,

rather, either an excessive-sentence claim or a claim that his sentence was

imposed in an illegal manner, as he does not dispute that the trial court had the

authority to impose a 35-year sentence. E.g., Goins v. Norris, 2012 Ark. 192,

4

Supp. App. 14

at 4 (per curiam)(holding Goins failed to demonstrate probable cause that his

sentence was illegal because sentence within prescribed statutory range for

underlying offense, irrespective of whether he was improperly sentenced as an

habitual offender); cf. Hobbs v. Gordon, 2014 Ark. 225, at 7-8, 434 S.W.3d

364, 368-69 (holding claim that life sentence actually imposed was itself

unconstitutional because mandatory was cognizable in habeas proceeding).

Petitioner’s challenge to his sentence for aggravated robbery is not

cognizable in these proceedings, and, thus, his petition for a writ of habeas

corpus is hereby dismissed for failure to demonstrate probable cause. And,

because his challenge to his aggravated-robbery sentence is unavailing, the

Court need not consider his challenge to the 15-year enhancement of it, which

is premised solely on his claim of invalidity of the underlying 35-year sentence.

See Petition at 10-15, ¥ 19-33. The petition is hereby dismissed due to lack of

Jurisdiction and failure to demonstrate probable cause.

It ts so ordered.

Jogi Raines Dennis

Circuit Judge

3-2-2095

Date Dold 170 _S

5

Supp. App. 15

ELECTRONICALLY FILED

Arkansas Supreme Court

Stacey Pectol, Clerk of the Courts

2019-May-20 14:06:55

CR-19-264

No. 19-264 ae

IN THE

SUPREME COURT OF ARKANSAS

LEMUEL WHITESIDE,

APPELLANT,

V.

THE STATE OF ARKANSAS,

APPELLEE.

ON APPEAL FROM THE SIXTH JUDICIAL DISTRICT CIRCUIT COURT

FOURTH DIVISION,

HON. BARRY SIMS, JUDGE PRESIDING

ABSTRACT, BRIEF, and ADDENDUM

J. THOMAS SULLIVAN

ARKANSAS BAR NO.2006019

1122 WEST CAPITOL

LITTLE ROCK, ARKANSAS 72201

501/376-6280

sullivanatty@gmail.com

Supp. App. 16

STATEMENT OF THE CASE

Appellant Lemuel Whiteside was charged with the offense of capital felony

murder committed during the course of committing aggravated robbery. He was

tried before a jury and convicted of both the underlying offense and capital felony

murder. The jury also found that Appellant used a firearm in the commission of

the offenses charged. Appellant was sentenced to the mandatory life sentence on

the capital murder and the trial jury set his punishment on the aggravated robbery

charge at 35 years and 15 years on the firearm enhancement count. The court

imposed the firearm sentence to be served consecutively to the 35-year sentence on

the aggravated robbery count for a total term of 50 years, and ordered the enhanced

50-year sentence to be served concurrently with the mandatory life sentence.

On direct appeal, the Court affirmed the judgment and sentence. Whiteside

v. State, 2011 Ark. 371, at *14, 383 S.W.3d 859, 868. Thereafter, the United

States Supreme Court granted Appellant’s petition, vacated the judgment, and

remanded the cause for reconsideration in light of its decision in Miller v.

Alabama, 567 U.S. 460 (2012). Whiteside v. Arkansas, 567 U.S. 850 (2012).

On remand, this Court reversed the life sentence and remanded for

resentencing on the capital murder conviction. Whiteside v. State, 2013 Ark. 176,

at *10, 426 S.W.3d 917, 222. However, the Court rejected Appellant’s argument

SOC-1

Supp. App. 17

that the resentencing should also include resentencing on the aggravated robbery

count. /d. at *8-*9, 426 S.W.3d at 221.

The trial court issued its Nunc Pro Tunc Amended Sentencing Order

[ADD/6-7, R/186-88], imposing the 10-year sentence agreed upon by the State and

Appellant on the capital murder charge pursuant to the remand for re-sentencing

ordered by this Court. Appellant then filed his Motion for New Trial, [ADD/9-27;

R/191-209], arguing that the sentence imposed on the aggravated robbery count

was unlawful in light of the Supreme Court’s decision in Graham v. Florida, 560

U.S. 48, 79 (2010), prohibiting the imposition of a life sentence without parole

eligibility for an offender convicted of a non-homicide offense while a juvenile.

This issue was neither argued, nor addressed by this Court in its decision

remanding the case for re-sentencing.

Defense counsel relied on Graham in contesting the statutory range of

sentences including life sentence options on both the capital felony murder and

aggravated robbery counts. [ABS/105-107; 109; 110-111, 117-118, 121, 122-123,

125-127, 128; R/564-566. 569, 570, 579, 586, 589, 590-592. 594]. Counsel

specifically objected to the jury being instructed on a life imprisonment sentence

on the aggravated robbery, relying on Graham, [ABS/105-107, 109. 110-111, 118;

R/564-67, 568-69, 570-71, 578]. The trial court denied the objections and refused

SOC-2

Supp. App. 18

to delete the life sentence option in the instruction. [ABS/218: R/S68]. It

instructed the Jury at the sentencing phase of trial as follows:

REQUESTED INSTRUCTION NO. 1, CLASS Y FELONY

CAPITAL MURDER

You have found Lemuel Whiteside guilty of capital murder.

Capital murder is punishable by imprisonment in the Department of

Correction for life without the possibility of parole.

REQUESTED INSTRUCTION NO. 2, AMCI 2d 9101

You have found Lemuel Whiteside guilty of aggravated

robbery. Aggravated robbery is punishable by imprisonment in the

Department of Corrections for not less than ten years and not more

than 40 years, or for life.

REQUESTED INSTRUCTION NO. 3, AMCI 2d 9201

You have found Lemuel Whiteside guilty of the offense of

aggravated robbery and have further found that Lemuel Whiteside

employed a firearm as a means of committing the offense. Employing

a firearm as a means of committing aggravated robbery is punishable

by imprisonment in the Arkansas Department of Correction for an

extended term not to exceed 15 years. The term of imprisonment for

employing a firearm is in addition to any term of imprisonment for the

offense of aggravated robbery. [ABS/121; R/586].

REQUESTED INSTRUCTION NO. 4, AMCI 2d 9404

In your deliberations on the sentence to be imposed, you may

consider the possibility that Lemuel Whiteside will be paroled.

Eligibility for parole is as follows:

Aggravated robbery is punishable by life imprisonment or a

term of years. Persons under sentence of life imprisonment are not

eligible for parole. (R. 588) If you sentence Lemuel Whiteside to

SOC-3

Supp. App. 19

[ABS/123-5; R/S88].

imprisonment for a term of years, he will be eligible for parole after

he serves seventy percent (70%) of the term you impose. This

percentage of imprisonment will not be reduced by the earning of

meritorious good time during his imprisonment.

REQUESTED INSTRUCTION NO. 5, AMCI 2d 9111

After hearing arguments of counsel, you will again retire to

consider and complete the following verdict forms:

We, the Jury, having found Lemuel Whiteside guilty of capital

murder fix his sentence at a term of life without possibility of parole

in the Arkansas Department of Corrections, to be signed by the

foreperson.

And, We, the Jury, having found Lemuel Whiteside guilty of

aggravated robbery, fix his sentence at a term of blank, not less than

ten years nor more than 40 years or life in the Arkansas Department of

Corrections, to be signed by the foreperson;

And, We, the Jury, having found Lemuel Whiteside guilty of

employing a firearm as a means of committing aggravated robbery,

fix his sentence at a term of blank, not to exceed [5 years in the

Arkansas Department of Corrections, to be signed by the foreperson.

decision, the trial court read the sentencing recommendation on the aggravated

robbery charge, imprisonment for 35 years. [ABS/128; R/594].

After the jury deliberated and reached its sentencing

Following this Court’s remand for re-sentencing, the prosecution and

Appellant reached an agreement in which Whiteside waived jury sentencing and

the State recommended the trial court impose a sentence of |0 years on the capital

murder charge. The trial court entered the Nunc Pro Tunc Amended Sentencing

SOC-4

Supp. App. 20

Order, setting his sentence at 10 years in the Arkansas Department of Correction.

[ADD/6-7; R/186-187].

Whiteside then filed his Motion for New Trial or Other Relief, [ADD/6-25;

R/191-210], arguing that the 35-year sentence imposed on the aggravated robbery

count violated his constitutional right under Graham, which prohibited imposition

of a life sentence without expectation for parole eligibility on a defendant who

committed a non-homicide offense while a juvenile. Because the trial court

instructed the jury, over defense counsel’s objections, that it could impose a

sentence within the statutory sentencing range of 10-40 years, or life, Whiteside

argued that even a sentence within the range of years was tainted by the jury’s

ability to consider life as a sentencing option because it is not possible to determine

what sentence jurors would have imposed had the option of life imprisonment not

been included in the instruction. [ADD/15-24; R/199-208].

The State responded by arguing that the trial court had no jurisdiction to

reconsider the sentence imposed on the aggravated robbery, [ADD/26-27; R/231-

232], and Whiteside replied to the State’s argument. [ADD/28-34:; R/233-239].

The trial court overruled the Motion for New Trial or Other Relief, [ADD/35;

R/241], and Whiteside gave his notice of appeal. [ADD/36-37; R/257-258].

SOC-5

Supp. App. 21

ARGUMENT

THE 35-YEAR SENTENCE IMPOSED ON APPELLANT

WHITESIDE’S ARMED ROBBERY CONVICTION VIOLATED

THE PROTECTION AFFORDED HIM BY THE UNITED STATES

CONSTITUTION WHERE THE JURY WAS IMPROPERLY

INSTRUCTED THAT IT COULD CONSIDER AND IMPOSE A

SENTENCE OF LIFE IMPRISONMENT CONTRARY TO

GRAHAM v. FLORIDA, 560 U.S. 48, 79 (2010), BECAUSE

APPELLANT WAS A JUVENILE WHEN HE COMMITTED THE

NON-HOMICIDE FELONY OFFENSE VIOLATING HIS RIGHT

TO DUE PROCESS OF LAW.

The imposition of a sentence imposed contrary to law presents an issue of

law resolved by the Court de novo. Yarbrough y. State, 370 Ark. 31, 33, 257

S.W.3d 50, 53 (2007).

A, Whiteside’s constitutional claim

There is no question that had the jury imposed a life sentence on the

aggravated robbery count, as authorized by the trial court in its sentencing phase

instructions, [ABS/121; R/586; SOC/3-4], the sentence would have been

unconstitutional in light of Graham v. Florida, 560 U.S. 48, 79 (2010). There, the

United States Supreme Court held that imposition of a life sentence without

prospect for parole on an offender who committed a non-homicide felony while a

juvenile violates the Eighth Amendment. This Court has applicd Graham in

Arkansas cases. Gordon v. State, 2015 Ark. 277, at *5-*6, 465 S.W.3d 842, 845-

46; accord, Pennington v. State, 2014 Ark. 44], at *2-*3, 497 S.W.3d 186, 187-88

(holding imposition of life sentence without possibility of parole for non-homicide

ARG- |

Supp. App. 22

felonies requires relief).

Despite defense counsel's persistent and unequivocal objections to the

inclusion of a life sentence option in its instructions, [[ABS/105-107; 109; 110-

111, 117-118, 121, 122-123, 125-127, 128; R/564-566. 569, 570, 579, 586, 589,

590-592. 594; SOC/2], the trial court overruled the objections and refused to delete

the life sentence option from its instructions. [ABS/218; R/568; SOC/3].

Instead, the trial court agreed with the State’s argument that Graham did not

apply to imposition of a life sentence on a non-homicide felony when the felony is

“associated” with commission of a homicide. [ABS/106; R/564]. The argument

would necessarily fail later when the mandatory life sentence imposed upon

juveniles convicted of homicide was held unconstitutional in Miller v. Alabama,

567 U.S. 460 (2012), leading to vacation of Whiteside’s life sentence on the capital

murder charge. Whiteside v. Arkansas, 567 U.S. 850 (2012).

The trial jury imposed a sentence of 35 years on the aggravated robbery,

enhanced by 15 years for use of a firearm in commission of the robbery, [ADD/6-

7; R/640, 642] and the trial court ordered these sentences to be served

consecutively. [ADD/2; R/71]. On direct appeal, this Court upheld Whiteside’s

conviction and sentence on the capital murder count. 2011 Ark. 371, at *8-*10,

383 S.W.3d at 866. On remand from the United States Supreme Court, this Court

remanded for resentencing. Whiteside v. State, 2013 Ark. 176, at *10, 426 S.W.3d

ARG-2

Supp. App. 23

917, 222. The trial court imposed a 10-year sentence on the capital murder charge

on agreed recommendation in its Nunc Pro Tune Amended Sentencing Order once

Whiteside waived his right to resentencing by jury. [Ex. C: ADD/6-7; R/186-187].

While the 35-year sentence was within the range authorized by statute, the

trial court’s sentencing instruction violated the constitutional protection afforded

Whiteside by improperly authorizing his jury to consider imposing a sentence of

life imprisonment, contrary to the Supreme Court’s holding in Graham. The trial

court’s action in instructing the jury contrary to Graham violated his right to due

process by tainting the sentence imposed by the jury, as Whiteside argued in his

Motion for New Trial or Other Relief, citing Hicks v. Oklahoma, 447 U.S. 343,

345-46 (1980). [Ex. D: ADD/24-25; R/207-208].

Significantly, the sentence imposed by the jury on the aggravated robbery

conviction following the trial court’s constitutionally-infirm sentencing instruction

under Graham did not result in facial prejudice to Whiteside until the resentencing

decision. Originally, the life sentence was to be served concurrently with the 35

year sentence on the aggravated robbery, [ABS/130; R/596]. Because the sentence

imposed on the capital murder was life without parole, [Ex. A: ADD/I, 3; R/070,

072], Whiteside would never have had any expectation for parole on the

aggravated robbery sentence and, thus, there was no prejudice from the sentence

on that charge that was constitutionally prohibited under Graham.

ARG-3

Supp. App. 24

B. The trial court's denial of Appellant's Motion for New Trial or Other Relief

Appellant Whiteside filed his Motion for New Trial or Other Relief [Ex. D:

ADD/8-27, R/191-210] following the trial court’s entry of its nunc pro tune order

imposing sentence on the capital murder charge, challenging the sentence on the

aggravated robbery charge as imposed in violation of the Eighth Amendment and

Supreme Court’s holding in Graham, supra. Whiteside argued that the 35 year

sentence, while within the statutory range of 10 to 40 years or life for a Class Y

felony, ARK. CODE ANN. § 5-4-401(a)(1), based on the designation of aggravated

robbery as a Class Y felony, ARK. CODE ANN. § 5-12-103(b), had been set by the

Jury improperly instructed that it could consider imposing a life sentence as an

option in setting his punishment.

It is not possible to discern from the trial record whether jurors were

influenced by the life sentence option included in the flawed instruction that

reflected the statutory punishment range at the time of the offense. The statutory

range, which included the option for life imprisonment, had been rendered

unconstitutional by the announcement of the modified holding in Graham on July

6, 2010, prior to trial on July 13-14, 2010 [ABS/1; R/070].]. Consequently,

Whiteside argued that even a sentence within the statutory range could not be

found to be harmless, [Ex. D: ADD/16-25; R/199-208], relying on cases involving

ARG-4

Supp. App. 25

the same problem of statutorily-authorized sentences imposed on legally-flawed

sentencing instructions. [ADD/19-21; R202-204).

The State responded initially to Appellant’s Motion for New Trial or Other

Relief [Ex. E: ADD/28-29; R/231-232] that Whiteside failed to demonstrate an

“actual point of relief under Rule 33.3 of the Arkansas Rules of Criminal

Procedure or A.C.A. § 16-89-130.” [ADD/28; R/231]. Contrary to the State’s

position, both the statute, ARK. CODE ANN. § 16-89-130(c)4) (authorizing new trial

“[w]here the court has misinstructed or refused to properly instruct the jury),

specifically, and Rule 33.3, broadly (and person convicted of a felony may “file a

motion for new tral or any other application for relief’) provide authority for

Appellant’s Motion for New Trial or Other Relief.

The State also responded that the trial court was “only vested with the

limited jurisdiction conferred upon it by the mandate” of this Court in returning the

case to the trial court for resentencing. [Ex. E: ADD/29; R/232]. Whiteside

acknowledges that the trial court recognized this limitation in its nunc pro tunc

resentencing order: “The sentence for aggravated robbery and the firearm

enhancement were not disturbed and are not at issue at resentencing.” [Ex. C:

ADD/6, R/186]. While Appellant responded to the State’s reliance on Cit: of

Dover vy. Barton, 342 Ark. 541, 29 S.W.3d 698 (2000), [Ex. F: ADD/31-34; R/234-

237], it appears that the Court’s decision in Ward v. State, 2017 Ark. 215, at 2-3,

ARG-5S

Supp. App. 26

521 S.W.3d 480, 481-82, is consistent with the State’s position, even if Barton is

distinguishable factually and as a matter of law.

However, the fact that the trial court may not have had discretion to consider

Whiteside’s claim based on Graham is academic since the court denied the Motion

for New Trial or Other Relief and did not exercise discretion in addressing the

constitutional issue. [Ex. G: ADD/37; R/241]. In moving for new trial, Appellant

Whiteside considered it necessary to preserve error and obtain a ruling from the

trial court in order to preserve the constitutional claim for review in this Court on

appeal from the resentencing order. The denial of relief preserves error for review.

C. The Court's jurisdiction on appeal from resentencing

Appellant recognizes that under the circumstances of this Court’s remand its

jurisdiction in this appeal may prove to be an issue in the context of review of

Whiteside’s claim raised in the Motion for New Trial or Other Relief. The Court

has jurisdiction over appeals following disposition of post-trial motions pursuant to

ARK. CODE ANN. § 16-91-105(b)(5) (notice of appeal following ruling on post-trial

motion for relief). Although Appellant argued unsuccessfully for resentencing on

the aggravated robbery count when the Court heard the case on remand from the

Supreme Court, his claim was grounded in interpretation of the statute governing

remand for resentencing, ARK. CODE ANN. § 16-97-101. The Court rejected his

argument that the felony murder and underlying felony counts had to be considered

ARG-6

Supp. App. 27

in a single sentencing proceeding in order to correctly reflect the decision of the

“jury.” Whiteside v. State, 2013 Ark. 176, at *9-*10, 426 S.W.3d at 921-22.

Moreover, in his Motion for New Trial or Other Relief, Whiteside made a

different argument, based on his claim of constitutional violation under Graham,

not decided by the Court previously and, thus, it is not precluded from

consideration on the merits by application of the law of the case doctrine. See, @.g.,

Carmago y. State, 337 Ark. 105, 109-10, 987 S.W.2d 680, 683 (1999).

Additionally, there is significant change in facts underlying Appellant’s claim, the

fact that the entry of the 10-year sentence on resentencing now results in actual

prejudice from the 50-year consecutive sentence imposed on the aggravated

robbery count, as increased by the firearm enhancement. The Court explained:

The doctrine is not inflexible and does not absolutely preclude

correction of error, but it prevents an issue raised in a prior appeal

from being raised in a subsequent appeal “unless the evidence

materially varies between the two appeals.” Kemp v. State, 335 Ark.

139, 142, 983 S.W.2d 383, 385 (1998).

Carmago, id. at 110. 987 S.W.2d at 683.

Prior to the trial court’s imposition of the 10-year sentence on the capital

murder charge, Appellant Whiteside was serving a life sentence without the

reasonable expectation of parole and any implication for parole eligibility on the

aggravated robbery sentence was essentially mooted by the life sentence. Since he

could have still be sentenced under the Class Y sentencing range on remand he

ARG-7

Supp. App. 28

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