Jerry Herron v. Arkansas Department of Corrections

                                   Cite as 

                SUPREME COURT OF ARKANSAS
                                       No.   CV-22-296

                                                 Opinion Delivered:   December 8, 2022
 JERRY HERRON
                               APPELLANT
                                                 APPEAL FROM THE ARKANSAS
                                                 COUNTY CIRCUIT COURT [NO.
 V.                                              01SCV-18-118]

                             HONORABLE DONNA GALLOWAY,
 ARKANSAS DEPARTMENT OF
                             JUDGE
 CORRECTIONS
                    APPELLEE
                             APPEAL DISMISSED.



                               BARBARA W. WEBB, Justice

       Appellant Jerry Herron appeals from the circuit court’s order denying his motion for

new trial based on allegations of juror misconduct. Herron argues on appeal that he is

entitled to a new trial because a juror seated for his 2004 criminal trial knowingly concealed

their bias. In response, the State asserts that both Herron’s motion for new trial and notice

of appeal were filed untimely. We agree and dismiss the appeal.

       Herron was convicted by an Arkansas County jury of first-degree murder and

sentenced to life imprisonment. The judgment and commitment order was entered on

January 12, 2004. Herron appealed, arguing that the circuit court erred by denying his

motion for severance. This court affirmed Herron’s conviction on May 26, 2005. Herron v.

State, 

, 

 (2005).

       On July 3, 2018, Herron filed a petition for writ of habeas corpus and motion for

new trial in the Arkansas County Circuit Court, wherein he alleged juror misconduct.
Specifically, he alleged Dorothy Mae Danzy, who served as a juror for his 2004 trial, failed

to disclose her son’s murder on a juror questionnaire and during voir dire. Herron asserted

Danzy was inherently biased due to her nondisclosure, which, in turn, deprived him of a

fair and impartial trial.

       On December 3, 2018, Arkansas County Circuit Judge David Henry held a hearing

on Herron’s habeas petition and motion for new trial. Prior to taking witness testimony, the

circuit court dismissed Herron’s habeas petition without prejudice because the court lacked

jurisdiction to act on the petition, given that Herron was incarcerated in Lincoln County. 1

The parties proceeded on Herron’s motion for new trial.

       After hearing witness testimony and arguments from counsel, Judge Henry ruled

Herron had not demonstrated that Danzy failed to answer any question honestly or had

deliberately concealed any fact that would have provided a basis for setting aside the jury

verdict. Judge Henry’s signed order denying the motion for new trial was entered on January

17, 2019. Herron subsequently filed an objection to the order on January 22, 2019. 2

       On September 27, 2021, Herron filed a motion to substitute postconviction counsel.

Thereafter, the presiding judge for Arkansas County, Donna Galloway, entered a second

order denying the motion for new trial on October 4, 2021. Herron filed his notice of

appeal on October 27, 2021, designating his appeal from the October 4, 2021, order.




       1
       A petition for writ of habeas corpus is properly addressed to the circuit court in
which the prisoner is held in custody. Dunahue v. Kelley, 

, 

.
       2
           The record does not indicate that the circuit court ever ruled on this motion.
                                                2
       We now address the State’s assertion that the circuit court lacked jurisdiction to

consider Herron’s motion for new trial because the motion was untimely, and, in addition,

the notice of appeal was untimely as well. As this issue pertains to our subject-matter

jurisdiction, we address it before reaching the merits of Herron’s arguments. Although

Herron suggests that the State waived any jurisdictional argument by failing to raise it below,

we have frequently held that whether a circuit court acted in excess of its authority is a

question of subject-matter jurisdiction. O’Connor v. State, 

, 

 (2006). And a question of subject-matter jurisdiction may be raised by a party for

the first time on appeal. Gates v. State, 

, 

 (2003).

       Arkansas Rule of Criminal Procedure 33.3(b) (2003) states in pertinent part that “[a]ll

posttrial motions or applications for relief must be filed within thirty days after the date of

entry of judgment.” Arkansas Code Annotated section 16-91-105(b)(1) (1987) further

provides that “[p]rior to the time fixed to file a notice of appeal, a person convicted of either

a felony or misdemeanor may file a motion for new trial.” Thus, a timely motion for new

trial must be filed within thirty days of the entry of judgment. See Ark. R. App. P.–Crim.

2(a)(1) (2003).

       Herron’s judgment and conviction order was entered on January 12, 2004. Any

posttrial motion was, therefore, due on February 11, 2004. Yet Herron did not file his

motion for new trial until 2018. The motion is clearly untimely, and the circuit court was

deprived of jurisdiction to proceed after the February 11, 2004, deadline. State v. Boyette,

, 

 (2005). The circuit court did not have authority to

act on Herron’s motion when it entered orders in 2018 and 2021. See Harris v. State, 327

    

, 15, 

 (1997) (noting a circuit court lacks jurisdiction to

belatedly deny a motion for new trial). When the circuit court lacks jurisdiction to consider

a motion, this court also lacks jurisdiction to consider an appellant’s claims. Williamson v.

State, 

. Accordingly, we dismiss Herron’s appeal.

       Appeal dismissed.

       Mark Alan Jesse, for appellant.

       Leslie Rutledge, Att’y Gen., by: Kent Holt, Ass’t Att’y Gen., for appellee.




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