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SUPREME COURT OF ARKANSAS

No. CR-13-239

MARVIN LIVINGSTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered September 11, 2014

PRO SE APPEAL FROM THE

JEFFERSON COUNTY CIRCUIT

COURT

[NOS. 35CR-06-562, 35CR-06-837, 35CR07-31, 35CR-07-87, 35CR-07-1018, 35CR08-14, 35CR-08-26, 35CR-08-590]

HONORABLE BERLIN C. JONES, 

JUDGE

AFFIRMED.

PER CURIAM

In 2009, judgment was entered in the Jefferson County Circuit Court reflecting that

appellant Marvin Livingston had entered a negotiated plea of nolo contendere to fourteen felony

offenses for which an aggregate sentence of 156 months’ imprisonment had been imposed. 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 (Supp. 2006), alleging that he was not afforded

effective assistance of counsel when he entered the plea in 2009. 

The trial court denied 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. Paige v. State, 2013 Ark. 432 (per curiam); Pankau v. State,

2013 Ark. 162. 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. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 494. 

Appellant’s claims of ineffective assistance of counsel were cognizable under our
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postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (2009). A petition that states a

claim for postconviction relief cognizable under Rule 37.1 is governed by that rule regardless of

the label placed on it by a petitioner. Ussery v. State, 2014 Ark. 186 (per curiam); Stanley v. State,

2013 Ark. 483 (per curiam); Purifoy v. State, 2013 Ark. 26 (per curiam). To the extent that a claim

is cognizable under the Rule, section 16-90-111 has been superseded, and any allegation that can

be considered under Rule 37.1 is subject to the time limitations contained in the Rule. Ussery,

2014 Ark. 186 (citing Murphy v. State, 2013 Ark. 243 (per curiam)). 

Pursuant to Rule 37.2, when a petitioner entered a plea of guilty, a petition must be filed

within ninety days of the date that the judgment was entered of record. Ark. R. Crim. P.

37.2(c)(i) (2009). The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and,

if they are not met, the trial court lacks jurisdiction to grant postconviction relief. Ussery, 2014

Ark. 186; Talley v. State, 2012 Ark. 314 (per curiam); Benton v. State, 325 Ark. 246, 925 S.W.2d 401

(1996) (per curiam). The petition in the instant case was not timely filed because appellant filed

it more than ninety days after the judgment had been entered of record; accordingly, the trial

court had no jurisdiction to grant the relief sought. When the lower court lacks jurisdiction, the

appellate court also lacks jurisdiction. Ussery, 2014 Ark. 186; Winnett v. State, 2012 Ark. 404 (per

curiam).

Even if considered under the provision in section 16-90-111 that allows the trial court

to correct an illegal sentence at any time, appellant was entitled to no relief. Appellant did not

claim that the sentences imposed were outside the statutory range for the offenses. Rather,

appellant argued that the sentences imposed were illegal because he was denied effective

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assistance of counsel and was not properly informed of his parole-eligibility date. 

A claim that a sentence is illegal presents an issue of subject-matter jurisdiction that can

be addressed at any time. Ussery, 2014 Ark. 186; Skinner v. Hobbs, 2011 Ark. 383 (per curiam);

see Culbertson v. State, 2012 Ark. 112 (per curiam). However, the claim, as advanced in appellant’s

petition, did not allege an illegal sentence of the type that is jurisdictional in nature. Rather, the

ground for relief raised in appellant’s petition was of the type that should have been raised in the

trial court. To the degree that the allegation concerned whether counsel was effective with

respect to counsel’s advice to appellant in the guilty-plea proceeding, the claim should have been

raised in a timely petition for postconviction relief pursuant to Rule 37.1. Ussery, 2014 Ark. 186. 

Allegations that constitute constitutional challenges to a sentence within the statutory range are

assertions of trial error that are properly made at trial.1 Id.; see also Davis v. State, 2013 Ark. 118

(per curiam). Section 16-90-111 does not provide a means to attack a sentence on the grounds

raised by appellant. Davis, 2013 Ark. 118; see also Stanley, 2013 Ark. 483. 

Affirmed.

Marvin Livingston, pro se appellant.

Dustin McDaniel, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.

1When a defendant enters a plea of guilty, the plea is his or her trial. Crockett v. State, 282

Ark. 582, 669 S.W.2d 896 (1984); see also Tolefree v. State, 2014 Ark. 26 (per curiam). 

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