                                    Cite as 2016 Ark. 144


                   SUPREME COURT OF ARKANSAS. 
                                        No.    CR-16-59

                                                Opinion Delivered March 31, 2016
ERIC C. BURGIE
                             APPELLANT PRO SE MOTIONS TO SUPPLEMENT
                                        ADDENDUM AND FILE SUBSTITUTED
V.                                      BRIEF, TO SUPPLEMENT BRIEF WITH
                                        EXTENDED PAGE LIMIT, FOR
STATE OF ARKANSAS                       APPOINTMENT OF COUNSEL, AND
                                        TO EXPEDITE RULING ON MOTIONS
                               APPELLEE [GARLAND COUNTY CIRCUIT
                                        COURT NO.  26CR-00-366]

                                                HONORABLE JOHN HOMER
                                                WRIGHT, JUDGE

                                                APPEAL DISMISSED; MOTIONS
                                                MOOT. 

                                       PER CURIAM


        In 2001, appellant Eric C. Burgie was found guilty by a jury of capital murder and

 aggravated robbery and sentenced to life imprisonment without parole.  We affirmed.  Burgie

 v. State, CR-02-90 (Ark. Feb. 20, 2003) (unpublished per curiam). 

        On November 10, 2015, Burgie 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). 

 There is a provision in section 16-90-111 that allows the trial court to correct an illegal

 sentence at any time because a claim that a sentence is illegal presents an issue of subject-

 matter jurisdiction.  Williams v. State, 2016 Ark. 16, at 2 (per curiam).  While the time

 limitations on filing a petition under section 16-90-111(a)(b)(1) on the grounds that the

 sentence was imposed in an illegal manner were superseded by Arkansas Rule of Criminal

 Procedure 37.2(c) (2015), the portion of section 16-90-111 that provides a means to
                                    Cite as 2016 Ark. 144

challenge a sentence at any time on the ground that the sentence is illegal on its face remains

in effect.  Halfacre v. State, 2015 Ark. 105, 460 S.W.3d 282 (per curiam).  For that reason,

the trial court had authority to grant relief under the statute if the sentences imposed on

Burgie had indeed been illegal.  Id.; see also Hill v. State, 2013 Ark. 29 (per curiam). 

       The trial court denied Burgie’s petition, and he has lodged an appeal in this court. 

Now before us are four motions filed by Burgie seeking to file a substituted brief, to file a

supplemental brief “with extended page limit,” for appointment of counsel, and to expedite

ruling on the motions.  As it is clear from the record that Burgie could not prevail on appeal,

the appeal is dismissed, and the motions are moot.  An appeal from an order that denied a

petition for postconviction relief, including a petition under section 16-90-111, will not be

permitted to go forward where it is clear that there is no merit to the appeal.  Perrian v. State,

2015 Ark. 424, at 2 (per curiam). 

       Burgie argued in his petition that his sentence was illegal because he was found guilty

of capital murder with aggravated robbery as the underlying felony on the ground that the

capital-murder statute, Arkansas Code Annotated § 5-10-101 (Repl.  1997) did not

enumerate aggravated robbery as an underlying offense to capital murder at the time he

committed the offenses.  He also argued that it was an ex post facto application of Act 827

of 2007 for him to be convicted for capital murder with aggravated robbery as an underlying

offense on the ground that the Act added “aggravated robbery” to the enumerated list of

underlying felonies to capital murder after he was convicted. 

       This is the second time this court has considered Burgie’s allegation concerning

aggravated robbery not specifically appearing as a lesser-included offense to capital murder

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in the statute at the time he committed the offenses.  He raised the claim in a petition for

writ of habeas corpus that he filed in 2012 in the circuit court in the county where he was

incarcerated.  The habeas petition was denied, and we affirmed the order.  Burgie v. Hobbs,

2013 Ark. 360 (per curiam).  In that appeal, we noted that a trial court has specific authority

to sentence a defendant for the underlying felony supporting a capital-murder charge, as

well as the felony of capital murder itself, even if the statute listed “robbery” rather than

“aggravated robbery” as an underlying offense.  Jackson v. State, 2013 Ark. 19 (per curiam);

see also Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008) (citing Walker v. State, 353 Ark.

12, 110 S.W.3d 752 (2003)).  While aggravated robbery was not specifically enumerated by

statute at the time Burgie committed the offenses, this court has held that aggravated robbery

will support a charge of capital murder.  See Nooner v. State, 322 Ark. 87, 907 S.W.2d 677

(1995); Simpson v. State, 274 Ark. 188, 193, 623 S.W.2d 200, 203 (1981) (“[T]he General

Assembly could not conceivably have intended that robbery, which may involve no force,

would support a charge of capital murder, while aggravated robbery, an inherently

dangerous crime, would not.  Aggravated robbery is still robbery.”).  With respect to Act

827 of 2007, the fact that the statute was changed to include aggravated robbery as an

underlying felony after Burgie was convicted does not alter our reasoning under the

precedent cited above.  Burgie did not show that his sentence was illegal, and he was not

entitled to relief under section 16-90-111.  Accordingly, the trial court did not err in

denying the relief sought, and Burgie could not prevail on appeal from the order. 

       Appeal dismissed; motions moot. 




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