text:
    JOHN NORRELL ARMS, INC. v. Curtis HIGGINS
    97-610
    962 S.W.2d 801
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Joel Taylor, for appellant.

      Kemp, Duckett, Spradley & Curry, by: James M. Duckett, for appellee.
   Robert L. Brown, Justice.

This appeal by appellant John Norrell Arms, Inc., arises out of a dismissal of Norrell Arms’s complaint against appellee Curtis Higgins due to lack of personal jurisdiction by the trial court over Higgins. Norrell Arms contends on appeal that the trial court erred in dismissing its complaint. We affirm the dismissal.

The facts leading up to the dismissal are these. Higgins is a resident of the State of Oklahoma and sole shareholder of an Oklahoma corporation, S & H Arms of Oklahoma, Inc. Norrell Arms is an Arkansas corporation with its principal place of business in Little Rock. A third person not a party to this action is Thomas Seslar, a resident of Carroll County, who was doing business as S & H Arms Manufacturing Company, apparently a sole proprietorship, at the time of the events in question.

On March 28, 1995, an Oklahoma default judgment in favor of Higgins and against Seslar was filed in Carroll County. In that judgment, the Oklahoma trial court found that Higgins and Seslar had been in business together as a fifty-fifty partnership engaged in the manufacture and sale of firearms and that Seslar took certain inventory which belonged to Higgins when the partnership was dissolved. That inventory included 330 autosears, which are parts that convert a semi-automatic firearm into a machine gun. The judgment provided that Seslar should return the 330 autosears, as well as other inventory to Higgins, and that Seslar should pay Higgins $15,776.30 in attorney fees and $82,500.00 for lost sales.

On October 6, 1995, a writ of execution was issued to the Sheriff of Carroll County to pick up “Firearms, autosears . . . and all other property of the Defendant, Thomas Seslar.” On October 14, 1995, the Sheriff issued his return showing that property of Seslar had been seized, and that return was filed on December 11, 1995.

On October 29, 1996, Norrell Arms sued Higgins in Pulaski County Chancery Court seeking declaration of ownership of 60 Ruger 1022 autosears for which Norrell Arms claimed it had paid Seslar $18,500. Norrell Arms further claimed that the 60 autosears were part of the 330 autosears referenced as inventory in the Higgins judgment taken against Seslar. According to allegations in the Norrell Arms complaint, Seslar was incarcerated in federal prison. For its second claim, Norrell Arms alleged that Higgins had tortiously interfered with its contract to buy the 60 autosears from Seslar by registering his Oklahoma judgment in Arkansas and prayed for compensatory and punitive damages.

Higgins entered a special appearance in Pulaski County Chancery Court to contest personal jurisdiction and subject-matter jurisdiction as well. Discovery ensued, and the trial court conducted a hearing in which Higgins and John Norrell testified. The trial court concluded that it had no personal jurisdiction over Higgins. In reaching that conclusion, the trial court made these findings in its order:

• The whereabouts of the autosears at issue is unknown, except they may be in Oklahoma.
• Only 36 of the autosears Norrell Arms purchased from Seslar were involved in the Higgins judgment.
• Higgins has never done business in Arkansas or advertised in any magazine within Arkansas or owned property in Arkansas.
• Higgins incorporated S & H Arms of Oklahoma, Inc., in Oklahoma, but the corporation has never been registered in Arkansas. The corporation has no agent for service in Arkansas or employees in the state.
• S & H Arms of Oklahoma, Inc., has done business in Arkansas through the mail and U.P.S. but has not initiated calls to people in Arkansas.
• Over the past 3 years, S & H Arms of Oklahoma, Inc., has derived between $10,000 and $15,000 in business income from Arkansas. The corporation’s annual gross income is $100,000 to $150,000.
• There is insufficient proof that S & H Arms of Oklahoma, Inc., is an alter ego of Higgins.

The trial court then dismissed Norrell Arms’s complaint.

Norrell Arms maintains on appeal that the trial court erred in its findings and was wrong in concluding that it lacked personal jurisdiction over Higgins. We disagree.

Under the state’s “long arm” statute, Arkansas courts may assert in personam jurisdiction over a nonresident party:

B. PERSONAL JURISDICTION. The courts of this state shall have personal jurisdiction of all persons, and all causes of action or claims for relief, to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution.

Ark. Code Ann. § 16-4-101 (B) (Supp. 1997).

The U.S. Supreme Court has held that in order for state courts to maintain personal jurisdiction over a nonresident person under the Due Process Clause of the Fourteenth Amendment, a party must satisfy two prongs. The party, first, must show that the nonresident has had sufficient “minimum contacts” with this state and, secondly, must show that the court’s exercise of jurisdiction would not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). In this same vein, the Court has held that personal jurisdiction over a nonresident defendant generally exists when the defendant’s contacts with the state are continuous, systematic, and substantial. Helicopteros Naciaonales de Columbia, S.A. v. Hall, 466 U.S. 408 (1984). See also Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952). It is essential for a finding of personal jurisdiction that there be some act by which the defendant purposefully avails himself or herself of the privilege of conducting business in the forum state. Hanson v. Denckla, 357 U.S. 235 (1957). Moreover, the contacts should be such where a defendant would have a reasonable anticipation that he or she would be haled into court in that state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).

The Eighth Circuit Court of Appeals has established a five-factor test for determining the sufficiency of a defendant’s contacts with the forum state so as to result in personal jurisdiction:

(1) the nature and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) convenience of the parties.

Burlington Industries, Inc. v. Maples Industries, Inc. 97 F.3d 1100 (8th Cir. 1996). See also Glenn p. Student Loan Guar. Found., 53 Ark. App. 132, 920 S.W.2d 500 (1996). We agree with the Eighth Circuit and our court of appeals that these factors are helpful in the minimum-contact analysis.

Based on the facts asserted in Norrell Arms’s complaint and the testimony of witnesses, it is clear that the only contact that Higgins had with Arkansas prior to the Norrell Arms complaint was the filing of an Oklahoma judgment against an Arkansas resident (Seslar) and the issuance of a writ of execution based on that judgment. We do not believe that such brief encounters with the State for the purpose of enforcing a judgment are the type of continuous, systematic, and substantial contacts envisioned by the U.S. Supreme Court to satisfy due process considerations. See Helicopteros Naciaonales de Columbia, S.A v. Hall, supra.

But Norrell Arms goes further and urges that S & H Arms of Oklahoma, Inc., is the alter ego of Higgins and that irrespective of Higgins’s slight connection with the State, the corporation has had sufficient contacts with Arkansas which should subject its sole shareholder to the jurisdiction of our courts. As an initial matter, we cannot say that the trial court clearly erred in finding that the proof submitted was insufficient to establish the corporation as Higgins’s alter ego. See Ark. R. Civ. P. 52(a). See also Rano v. SIPA Press, Inc., 987 F.2d 580 (9th Cir. 1993). But even assuming alter ego status, we do not agree that the corporation’s contacts with Arkansas are sufficient to justify personal jurisdiction over Higgins.

Our conclusion appears to comport with the holdings of analogous cases. For example, in the Helicópteros case, the Court refused to hold that personal jurisdiction existed over a defendant corporation even though a representative of that corporation had actually traveled to the forum state to negotiate a contract for the sale of helicopters and had sent people to the forum state for training. See Helicopteros Naciaonales de Columbia, S.A v. Hall, supra. In addition, this court has declined to affirm personal jurisdiction over a Texas lawyer who represented a client from Arkansas. See Marchant v. Peeples, 274 Ark. 233, 623 S.W.2d 523 (1981). In Marchant, we said:

The undisputed facts are that Peeples is a Texas lawyer licensed only to practice in Texas. He has had no contacts in Arkansas, except with Mrs. Marchant, and those have been by telephone or mail. He has not solicited any business in this state nor provided any services in this state. He did not initiate contact with Mrs. Marchant.

Id. at 234. And, finally, we agree with the reasoning of the court of appeals, which held that “the use of arteries of interstate mail and banking facilities, standing alone, is insufficient to satisfy due process in asserting long-arm jurisdiction over a nonresident.” Glenn v. Student Loan Guar. Found., 53 Ark. App. at 134, 920 S.W.2d at 501.

As the trial court found in its order, S & H Arms of Oklahoma, Inc., is not registered in Arkansas. It has no employees here. It has no agent for service in Arkansas. And it has never initiated contact with people in Arkansas. The only contact that S & H Arms of Oklahoma, Inc., has had with this state has been sales to Arkansas residents, set in motion by Arkansas residents and merchandise delivered to Arkansas residents by mail or UPS. These contacts are manifestly insufficient to warrant general personal jurisdiction over S & H Arms of Oklahoma, Inc., much less over Higgins.

We are aware that the U.S. Supreme Court has found in certain instances that personal jurisdiction over a nonresident defendant did not violate due process, even though the defendant had had only one contact with the forum state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); McGee v. International Life Ins. Co., 355 U.S. 220 (1957). In Burger King, the Court held that specific personal jurisdiction is applicable when the defendant has purposefully established a contact with the forum state and the litigation results from alleged injuries that arise out of or are related to that contact. In the instant case, Norrell Arms contends that its complaint is related to and arises out of Higgins’s contacts with this State, which are the registration of his foreign judgment and his attempt to collect on that judgment.

In response, Higgins cites this court to one case that, he contends, is factually similar to the instant case, Frasca v. Frasca, 330 S.E.2d 889 (Ga. 1985). In Frasca, the Georgia Supreme Court refused to subject a nonresident to jurisdiction based solely on the registration of a New York divorce decree in Georgia. The Georgia Supreme Court concluded that the registration of a judgment did not constitute the transaction of business as contemplated by Georgia’s “long arm” statute. Because the Georgia decision appears to have been bottomed on a “transaction of business” rationale under Georgia’s statute as opposed to a “minimum contacts” examination, it does not appear to be particularly helpful in deciding this case.

Norrell Arms makes two claims to support its theory that its complaint against Higgins arises out of the registration of Higgins’s judgment against Seslar. First, Norrell Arms maintains that this lawsuit is related to the Higgins judgment because the judgment is based on the same property that Norrell Arms claims to have purchased from Seslar. Norrell Arms argues briefly, as a second proposition, that jurisdiction should obtain in Arkansas because when Higgins registered the judgment, he tortiously interfered with Norrell Arms’s contract to purchase the autosears. He cites no authority to support either claim, and we are not persuaded by the arguments. If the registration of a foreign judgment alone is sufficient contact with a forum state, then every person who has ever registered a judgment in Arkansas is subject to suit in this State by any person claiming to have an interest in that property. This would be so, according to Norrell Arms’s reasoning, even when the claim is by a third party not involved in the registered judgment and even when the property at issue is no where to be found. That goes too far in our judgment and, again, Norrell Arms cites us to no case to support its contention.

There is a policy consideration in all of this which is important to our analysis. The State of Arkansas must give foil faith and credit to foreign judgments under the U.S. Constitution. U.S. Const, art. 4, § 1. See also Ark. Code Ann. § 16-66-602 (Supp. 1995). Subjecting those like Higgins who seek to enforce a foreign judgment in Arkansas to lawsuits by third parties when the property at issue may not even be located in Arkansas could well impede this basic constitutional principle.

We hold that the trial court did not clearly err in finding that Higgins did not have minimum contacts with the State of Arkansas. See Rule 52(a). See also Rano v. SIPA Press, Inc., supra. We further hold that the trial court correctly concluded, based on its findings, that it lacked personal jurisdiction over Higgins. Because we decide this matter based on the first prong of the International Shoe test, there is no need for us to examine the second prong of fair play and substantial justice.

Affirmed.

       The trial court, in its order, referred to this corporation as S & H Arms, Inc.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice. Robert L. Brown, Justice,

license: Public Domain

text:
    Scotty Ray GARDNER v. STATE of Arkansas
    CR 97-785
    963 S.W.2d 590
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Alvin Schay, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

This case presents a question concerning the law of prosecutorial vindictiveness. The appellant purported to enter a guilty plea which was subsequently vacated on federal habeas review. On retrial, the appellant was charged as a habitual offender based on prior felony convictions, most of which had occurred prior to the appellant’s initial plea attempt. The trial court denied the appellant’s motion to dismiss the habitual charge based on prosecutorial vindictiveness. We find no error and affirm.

On November 8, 1990, Scotty Ray Gardner was charged with two counts of criminal attempt to commit first-degree murder in Arkansas County Circuit Court. While the case was set for a jury trial on November 15, 1991, Gardner purported to enter a guilty plea to the two counts at a hearing on October 23, 1991. On October 30, 1991, the trial court sentenced Gardner to two concurrent terms of thirty years’ imprisonment, with seven years of each term suspended.

In an unpublished opinion, this court affirmed the denial of Gardner’s Rule 37 petition and his petition to withdraw the plea. Gardner v. State, No. CR 94-559 (Ark. slip op. Feb. 27, 1995). However, the United States District Court, Eastern District of Arkansas, found that the trial court failed to establish a factual basis for the guilty plea, and impermissibly sentenced Gardner without his presence or the presence of counsel. Accordingly, on January 11, 1996, the District Court ordered the issuance of a writ of habeas corpus conditioned on Gardner’s rearraignment and retrial.

On February 13, 1996, the prosecuting attorney filed an amended information charging Gardner as a habitual offender with four or more felonies pursuant to Ark. Code Ann. § 5-4-501 (Repl. 1997). While at trial on July 11, 1996, Gardner objected to the amendment of the habitual-offender count, arguing that the amendment constituted a penalty for the exercise of his rights. He moved that the case should proceed as originally charged. The prosecutor explained as follows:

The Court is well aware that a lot of times we don’t complete our review of somebody’s criminal record until well ■— until just before trial, and it’s not at all uncommon for me to amend to allege habitual status a week before trial, just as long as I let defense counsel know. In this case also, we have an additional conviction after Mr. Gardner — after we all thought Mr. Gardner had plead [sic] guilty, which changed the — changed the statue even more. He has Oklahoma convictions; he has Fort Smith convictions. He has Cleveland County charges that were dismissed as a result of what we thought was a plea here. And then he subsequently had escape charges in Arkansas County. He is a habitual offender. And I think the State is entitled ■— he walked up there and we thought plead [sic] guilty. And I think the State is entitled to amend at any point in time. And I have told [defense counsel], well, I think I amended probably in January or February, as soon as I found this thing was being remanded, and I was able to complete my — complete my checking of his — of his past record.

The trial court asked whether Gardner could have been charged as a habitual before, to which the prosecutor responded in the affirmative for “small habitual.” When asked again why Gardner was not charged as a habitual offender initially, the prosecutor stated that:

Your Honor, I had never gotten that far along. He walked up — we had never gotten that far along in — in trial preparation. There are a lot of times that we don’t — until I see a case is going to trial I don’t get certified copies of these things simply because they charge me every time I get a copy from Oklahoma, or Port Smith, or wherever. We didn’t get close enough to trial. We walked up there and plead [sic] guilty to the Court. I didn’t — [defense counsel] might have an argument if I had extended him an offer of twenty-three years, and that was based upon a plea arrangement that we reached and then he set it aside. He refused, or rejected my first offer. And I did not tell the Court I wasn’t going to extend him an offer. I said, “He has rejected my offer. I don’t feel obligated to extend him another one.
And since then I have talked to the victims, and the victims have both said they want their day in court. And — and in this type of situation, I think I have got to give them — give them some deference, Judge.

Following jury selection, an in-chambers hearing was held where the prosecutor further explained that:

[A]fter we discussed the issue of the alleged prosecutorial vindictiveness, I went back to and looked at the escape Information that was charged — filed against Mr. Gardner in 1991, to which he pled and received a sentence of four years. He was charged as a habitual offender at that time. That was well before there was any guilty plea set aside or anything else. And based upon that, I would — I would offer that as further evidence that there is no prosecutorial vindictiveness in this case.

Following the close of the State’s case-in-chief, Gardner again objected to the increase in severity and moved that the case be submitted only on the original charges. The prosecutor responded with the escape information that he filed against Gardner in 1991, stating that he charged Gardner as a habitual “some five — four or five years before this guilty plea was set aside.” While the jury was deliberating during the guilt phase, defense counsel once again objected to the addition of the habitual charge. The prosecutor responded as follows:

To bring anybody who ever uses this record up to date, Mr. Gardner was arrested in November. He was ordered committed to the State Hospital —• the Southeast Arkansas. That was done, examination on 12-10. They recommend that he be seen at the State Hospital. All of which delays any — any decision. He was out on bond, he was seen and examined by them, that — that report came down May the eighteenth, or May of‘91, sometime. Mr. Gardner then went to Oklahoma. His bond was revoked. Upon his return to the state of Arkansas he pled open-ended to the Court. Now, I don’t know that there was ever a trial date set in this case. I believe I have got the option to amend the habitual status at any point as long as the defendant has reasonable notice. It’s also very important to point out that when he was charged with the escape in November of‘91, that was an allegation of the habitual offender status, well before he filed any motion with the Federal Court. I have said he is manipulating the system speaking solely about what he has told the various mental health professionals that have dealt with him. I would also point out that the Amended Information was filed in February of 1996. As soon as I found out this case had been remanded, I knew that I was intending to charge Mr. Gardner as a habitual and I amended. It’s not like I did it just before trial. [Defense counsel] has known about it.

The trial court ultimately denied Gardner’s request that the case be submitted as originally charged. The felony convictions given to the jury in support of the habitual count included a 1983 Oklahoma larceny of merchandise from a retailer plea, and an Oklahoma unauthorized use of a vehicle plea on the same date. Gardner had also pleaded guilty in 1986 to theft of property in Sebastian County, and to a 1992 second-degree escape in Arkansas County.

Following the trial, the jury found Gardner guilty of one count of criminal attempt to commit murder in the first degree and one count of battery in the first degree, and imposed sentences in the amount of thirty and twenty years’ imprisonment, respectively. The jury also recommended that these sentences run consecutively. The trial court entered a judgment and commitment order reflecting these sentences, and ordered that they be served consecutively.

As set forth in Gardner’s sole point on appeal, his only argument for reversal is that the trial court erred in allowing the prosecutor to amend the information to add the habitual-offender charge. However, a fair reading of the remainder of Gardner’s brief suggests that he additionally contends that the trial court was vindictive in imposing consecutive sentences, as opposed to the concurrent sentences originally imposed when the purported guilty plea was entered. To the extent that this is a claim that the trial court was vindictive in imposing consecutive sentences, we agree with the State that this argument was waived by the failure to object to the imposition of consecutive sentences, and more particularly by the failure to object that the imposition of consecutive sentences violated his due-process rights. We now turn to Gardner’s claim that he was denied due process when the prosecutor amended the information against him to add the habitual-offender count. We review a trial court’s finding regarding prosecutorial vindictiveness for clear error. Horne v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984).

In North Carolina v. Pearce, 395 U.S. 711 (1969), overruled in part, Alabama v. Smith, 490 U.S. 794 (1989), the Supreme Court fashioned a prophylactic rule to protect against a sentencing authority imposing a greater sentence following a defendant’s exercise of his right to appeal. When a defendant has successfully attacked his first conviction, due process requires that vindictiveness “play no part in the sentence he receives after a new trial.” Id. The Court also held that due process requires that a defendant “be freed of apprehension” of a retaliatory motivation on the part of the sentencing judge so that the defendant will not be deterred from exercising his right to appeal or collaterally attack his first conviction. In order to “assure the absence of such a motivation,” the Court concluded that whenever a judge imposes a more severe sentence after a new trial, the “reasons for his doing so must affirmatively appear.” Id. Moreover, “[t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made a part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed upon appeal.” Id.

Pearce’s prophylactic rule was extended to prosecutors in Blackledge v. Perry, 417 U.S. 21 (1974). In Blackledge the respondent, already an incarcerated prisoner, was initially charged in North Carolina District Court with misdemeanor assault with a deadly weapon. Following a bench trial, the respondent was given a six-month sentence to be served following the expiration of the time he was already serving. Respondent then exercised his statutory right to trial de novo in North Carolina Superior Court. Following the filing of the notice of appeal, the prosecuting attorney obtained an indictment (based on the same conduct) for felony assault with a deadly weapon with intent to kill and inflict serious bodily injury. Respondent pleaded guilty to the indictment in Superior Court, and was sentenced to a term of five to seven years to be served concurrently with time already being served.

The Supreme Court granted certiorari to consider whether the “indictment on the felony charge constituted a penalty for his exercising his statutory right to appeal” in violation of the Due Process Clause of the Fourteenth Amendment. Id. Respondent’s due process arguments were “derived substantially” from Pearce, supra. Blackledge, supra. While the Blackledge Court acknowledged that there was no evidence of prosecutorial bad faith or maliciousness in seeking the felony indictment, “[t]he rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that ‘since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of his right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.’” Blackledge, supra (quoting Pearce, supra). The Blackledge Court reasoned that the same considerations applied so that a person convicted of an offense should be free of apprehension of the substitution of a more serious charge, subjecting that person to increased penalties and other collateral consequences, once that person exercised his statutory right to a de novo trial. Thus, due process required that “such a potential for vindictiveness” not enter North Carolina’s two-tiered appellate process. Blackledge, supra. “We hold, therefore, that it was not constitutionally permissible for the State to respond to [respondent’s] invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.” Blackledge, supra.

United States v. Goodwin, 457 U.S. 368 (1982), limited the holdings of Pearce and Blackledge insofar as they related to a presumption of vindictiveness. In Goodwin, the “question presented [was] whether a presumption that has been used to evaluate a judicial or prosecutorial response to a criminal defendant’s exercise of a right to be retried after he has been convicted should also be applied to evaluate a prosecutor’s pretrial response to a defendant’s demand for a jury trial.” The respondent in Goodwin was initially charged with several misdemeanor offenses, but was subsequently indicted with felony offenses arising out of the same conduct once plea negotiations broke down. Respondent moved to set aside the verdict on the ground of prosecutorial vindictiveness, alleging that the indictment on the felony charge “gave rise to an impermissible appearance of retaliation.” Id.

The Goodwin Court declined to apply the Blackledge prophylactic rule. Examining its prior holdings, the Supreme Court stated that in Pearce the Court “applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” Goodwin, supra. Likewise, in Blackledge, “the Court held that the likelihood of vindictiveness justified a presumption that would free defendants of apprehension of such a retaliatory motive on the part of the prosecutor.” Goodwin, supra. Distinguishing Pearce and Blackledge, the Goodwin Court explained that “[t]he decisions in these cases represent a recognition by the Court of the institutional bias inherent in the judicial system against the retrial of issues that have already been decided.” The case was more like Bordenkircher v. Hayes, 434 U.S. 357 (1978), where the Court held that there was no due process prohibition against a prosecutor carrying out a threat made during plea negotiations, to bring additional charges should the defendant refuse to plead guilty to the offense as originally charged. Like Bordenkircher, the facts in Goodwin arose “from a pretrial decision to modify the charges against the defendant.” Goodwin, supra. However, unlike Bordenkircher, there was no evidence in the record to support a claim of actual vindictiveness on the part of the prosecutor, “the prosecutor never suggested that the charge was brought to influence the respondent’s conduct.” Goodwin, supra. Because there was no evidence of actual vindictiveness, the Goodwin case turned on whether a presumption of vindictiveness would apply.

Here the Supreme Court was wary of adopting an “inflexible presumption of prosecutorial vindictiveness in a pretrial setting”:

In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins — and certainly by the time a conviction has been obtained — it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some “burden” on the prosecutor. Defense counsel routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an affirmative defense; to request psychiatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assume that a prosecutor’s probable response to such motions is to seek to penalize and to deter. The invocation of procedural rights is an integral part of the adversary process in which our criminal justice system operates.

Goodwin, supra.

The timing of the prosecutor’s action suggested that a presumption of vindictiveness was not warranted. “A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution . . . the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.” Goodwin, supra. While the respondent initially expressed interest in plea negotiations, he later opted for a jury trial in District Court, forcing the Government to “bear the burdens and uncertainty of a trial.” Goodwin, supra. “Perhaps most importantly, the institutional bias against the retrial of a decided question that supported the decisions in Pearce and Blackledge simply has no counterpart in this case.” Goodwin, supra.

The Supreme Court further limited the Pearce holding in Alabama v. Smith, 490 U.S. 794 (1989). In Smith the respondent pleaded guilty to charges of burglary and rape, and the prosecutor dropped a sodomy charge in exchange. The trial court sentenced him to two thirty-year terms of imprisonment to be run concurrently. Later, the respondent successfully got his guilty plea vacated and the case was remanded for retrial. The case was reassigned to the same trial judge, and the case went to trial on the three original charges, including the sodomy charge. The jury found respondent guilty on all three counts, and the trial court imposed a sentence of life imprisonment on the burglary conviction, in addition to a concurrent term of life imprisonment on the sodomy conviction and a consecutive term of 150 years’ imprisonment on the rape conviction. The trial court explained that it imposed “a harsher sentence than it had imposed following respondent’s guilty plea because the evidence presented at trial, of which it had been unaware at the time it imposed sentence on the guilty plea, convinced it that the original sentence had been too lenient.” Id.

The Supreme Court held that the Alabama Supreme Court erroneously applied the Pearce prophylactic rule to presume vindictiveness on the part of the trial court. The Smith Court explained that the Pearce presumption of vindictiveness was limited in Goodwin to circumstances in which there was a “‘reasonable likelihood’. . . that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.” Alabama v. Smith, supra (quoting Goodwin, supra). Following this reasoning, the Court concluded that “when a greater penalty is imposed after trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to the vindictiveness of the sentencing judge. Even when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial.” Alabama v. Smith, supra. While the same judge that sentenced following a guilty plea may be imposing sentence following trial, the judge is not “do[ing] over what it thought it had already done correctly.” Alabama v. Smith, supra. The Court went so far as to overrule Simpson v. Rice, the companion case to Pearce, supra, since it involved an application of the presumption of vindictiveness in a case where an increased sentence was imposed following the vacation of a guilty plea. “[T]here is no basis for a presumption of vindictiveness where a second sentence imposed after trial is heavier than a first sentence imposed after a guilty plea.” Alabama v. Smith, supra.

The upshot of the Supreme Court cases is that a defendant can establish a claim for prosecutorial vindictiveness in charge selection in two ways. First, the defendant may establish actual vindictiveness by “proving] objectively that the prosecutor’s charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do.” Goodwin, supra. Of course, this is an extremely difficult burden for the defendant to satisfy, given that it involves proving the prosecutor’s state of mind. In the present case, there is Hide objective evidence of actual vindictiveness in the record. While at one time defense counsel alleged that the prosecutor’s remarks during trial that Mr. Gardner was “abusing the system” constituted evidence of actual vindictiveness, this evidence fails to satisfy the defendant’s burden to prove actual vindictiveness.

Rather, Gardner must rely on the Blackledge presumption of vindictiveness, which was applied where the prosecutor substituted a “more serious charge for the original one, thus subjecting [the defendant] to a significantly increased potential period for incarceration” following the exercise of a “right.” Blackledge, supra. In the present case, the State amended the information against Gardner to add a habitual-offender charge, exposing Gardner to a greater range of punishment than he was exposed to when he pleaded guilty to the initial charges. Professor LaFave writes that a charge is “obviously” “more serious” for Blackledge purposes when a count is added under a habitual-criminal act. Wayne R. LaFave andjerold H. Israel, Criminal Procedure, § 13.7(c) (1984 and Supp. 1991) (citing James v. Rodriguez, 553 F.2d 59 (10th Cir. 1977) (holding that “tactical” filing under the New Mexico Habitual Criminal Act on defendant’s retrial violated the defendant’s right of appeal where the State “made no attempt to justify the increased punishment”)).

We hold that. Gardner has established a prima facie due process violation by showing that the State added a charge against him so as to expose him to a greater range of punishment following the successful collateral attack of his guilty plea. Thus, this case turns on whether the State sufficiently rebutted a presumption of vindictiveness.

In Blackledge, supra, the Supreme Court provided an example of when the State may permissibly substitute a more serious charge on retrial — when it was “impossible” to bring the increased charge at the first trial — for example when a homicide victim had not yet died at the time of the first trial, thus making it impossible to bring a homicide charge. The Goodwin Court, in reviewing the Pearce holding (on which Blackledge was based), stated that “the [Pearce] Court applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” Goodwin, supra, (emphasis added). In a later footnote reviewing the Blackledge opinion, the Goodwin Court stated that “[t]he presumption again could be overcome by objective evidence justifying the prosecutor’s action.” Goodwin, supra (emphasis added). Further guidance can be found in Texas v. McCullough, 475 U.S. 134 (1986), where a majority of the Supreme Court refused to technically limit the sentencing authority’s ability to rebut a presumption of vindictiveness with information obtained after the initial trial. The Pearce opinion was not “intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified. Restricting justifications for a sentence increase to only ‘events that occurred subsequent to the original sentencing proceedings’ could in some circumstances lead to absurd results.” McCullough, supra.

Professor LaFave writes that other jurisdictions vary as to what showing will suffice to rebut the presumption. LaFave, supra. He identifies approaches that range from a requirement that a prosecutor merely state a nonvindictive reason when charges are added, e.g., Jackson v. Walker, 585 F.2d 139 (5th Cir. 1978), to a stringent requirement that the prosecutor “dispel any appearance of prosecutorial vindictiveness.” E.g., United States v. Burt, 619 F.2d 831 (9th Cir. 1980). As an attractive “middle ground,” LaFave suggests an approach set forth in United States v. Andrews, 633 F.2d 449 (6th Cir. 1980), holding that where counts are added, the prosecutor must produce an “objective explanation” for his actions. “[O]nly objective, on-the-record evidence can rebut a finding of realistic likelihood of vindictiveness.” United States v. Andrews, supra. As examples of explanations that could rebut the presumption, the Andrews court explained that a prosecutor could not rebut the presumption by stating that she had merely “made a mistake,” but could prevail by showing governmental discovery of previously unknown evidence, or previous legal impossibility. United States v. Andrews, supra.

We agree that in the case of added counts, a prosecutor should be able to rebut a presumption of vindictiveness with an objective, on-the-record explanation. In the present case, there is more than a simple subjective assertion of the prosecutor’s good faith. Rather, the prosecutor explained that “a lot of times” he did not completely review a case “until just before trial.” He stated that the cost of obtaining these records was a factor in waiting until trial was imminent. Because the case did not proceed to trial, the prosecutor did not discover the existence of the prior convictions. Moreover, the prosecutor pointed out that when he filed the information against Gardner on the escape count, prior to the federal grant of habeas relief, he charged Gardner as a habitual offender. Thus, this also arguably rebuts a likelihood of vindictiveness given that the prosecutor had charged Gardner as a habitual offender before the exercise of his federal habeas rights. In sum, the prosecutor produced objective, on-the-record evidence from which the trial court could find a sufficient justification for the addition of the habitual count. Based on these facts, we cannot say that the trial court was clearly erroneous in allowing the State to amend the information to add the habitual count.

Affirmed.

Newbern and Brown, JJ., dissenting.

Robert L. Brown, Justice,

dissenting. I agree with the majority opinion that a prima facie case of a due process violation was made by the prosecutor’s adding the habitual offender count on retrial. I also agree that our test should be whether the prosecutor offered an objective explanation for why the enhancement charge was not originally made. United States v. Goodwin, 457 U.S. 368 (1982). And I, finally, agree that a mere mistake by the prosecutor in not filing the habitual offender count initially is not sufficient to rebut the presumption. See United States v. Andrews, 633 F.2d 449 (6th Cir. 1980), cert. denied, 450 U.S. 927 (1981).

The problem in this case is that the facts do not warrant a rebuttal of the presumption under the law set out by the majority. First, the only explanation by the prosecutor as to why he did not initially charge Gardner as a habitual offender is that the matter never came to trial and he usually checked for other convictions and amended the criminal information, if appropriate, a week before trial. This explanation falls short of an objective explanation and falls more readily into the category of a mistake. The prosecutor attended the plea, and what could be of greater importance to the sentencing judge than the fact that the defendant had a prior record? Yet, the trial judge did not have this information available when he first sentenced Gardner.

There is also the point that there is no indication that the trial court used the presumption-of-vindictiveness standard or sought an objective explanation from the prosecutor to rebut that presumption. What the trial court did was rely on Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995), which is distinguishable from this case on the facts. In Aaron, the prosecutor tried to amend the criminal information in the first trial to charge the defendant as a habitual offender and the trial court sustained the defendant’s objection that the prosecutor was too late. We reversed the conviction, and prior to retrial, the prosecutor “corrected its oversight” and amended the information. Aaron, 319 Ark. at 323, 891 S.W.2d at 365. We held that this correction was not evidence of prosecutorial vindictiveness. Contrary to the facts in Aaron, in the instant case, there was no effort by the prosecutor to amend Gardner’s information before his plea and sentence.

In sum, we are talking merely about a mistake made by the prosecutor to rebut the presumption of vindictiveness. That is not sufficient under United States v. Andrews, supra. Accordingly, I dissent.

Newbern, J., joins.

       As already stated, the record shows that the case was in fact set for trial on November 15.

       In Pearce, supra, the Supreme Court noted that it would be “extremely difficult” to prove retaliatory motivation in an individual case. Likewise, in Goodwin, supra, the Court quoted from the Government’s brief in acknowledging that it would be a “rare case” in which the defendant could successfully demonstrate that enhanced charges were in actuality a penalty for the exercise of a procedural right.

       The State concedes as much in its brief, writing that “The question to be decided is whether the amendment constituted vindictiveness by the prosecutor. The State bears the burden of overcoming a presumption of vindictiveness.”


author: Annabelle Clinton Imber,

text:
    Timothy LEATHERS, In His Official Capacity as Commissioner of Revenues, Arkansas Department of Finance and Administration, Office of Driver Control v. William W. COTTON
    97-619
    961 S.W.2d 32
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Daniel S. Smith, for appellant.

      Ray Hodnett, for appellee.
   Annabelle Clinton Imber,

Justice. This case presents a question of statutory interpretation. It specifically concerns the effect of a final adjudication of a lesser-included DWI offense on the administrative suspension of a driver’s license.

The undisputed facts are as follows. On October 26, 1994, Cotton was convicted of DWI first offense in Fort Smith Municipal Court. On October 13, 1996, Cotton was charged with DWI second offense in Van Burén Municipal Court. Pursuant to Ark. Code Ann. § 5-65-104 (Repl. 1997), Cotton’s license was temporarily suspended by the Office of Driver Services of the Revenue Division of the Department of Finance & Administration, and Cotton subsequently exercised his right to an administrative hearing. Cotton, a sales manager for a distributing company, would lose his job without a driver’s license or a permit. While he did not contest the suspension of his license, he did request a work permit due to hardship. Following a hearing on October 28, 1996, the hearing officer found that there had been a violation of Act 802 of 1995, and imposed second-offense sanctions, suspending Cotton’s license for sixteen months, and denying the work permit “as it [was] more than DWI 1st offense within three years.”

On November 14, 1996, Cotton filed a petition for de novo review in Sebastian County Circuit Court pursuant to section 5-65-104(c). On January 8, 1997, the Van Burén Municipal Court found Cotton guilty of DWI first offense. Given that the municipal court had acquitted him of DWI second offense, Cotton asserted that the trial court now had jurisdiction to issue a work permit in the administrative review proceeding. Following a hearing on the matter, the trial court entered an order finding that Cotton’s acquittal on the DWI second-offense charge in municipal court had “turned this charge into a First Offense Driving While Intoxicated.” The court further found that “[s]ince this is a First Offense Driving While Intoxicated case by finding of the Van Burén Municipal Court, the Office of Driver Control cannot suspend the Plaintiffs drivers license for sixteen (16) months.” Accordingly, the trial court ordered DF&A to suspend Cotton’s license for 120 days “for Driving While Intoxicated, First Offense, in accordance with the Judgment of the Van Burén Municipal Court.” Because this time period had already expired given the effective date of suspension, October 28, 1996, the trial court ordered Cotton’s license reinstated. DF&A brings the present appeal.

DF&A’s sole argument for reversal is that the trial court erroneously interpreted section 5-65-104. Specifically, DF&A contends that the municipal court’s acquittal on DWI second offense did not preclude it from considering the DWI first-offense conviction in calculating the total number of offenses for imposition of second-offense sanctions under section 5-65-104.

Administrative suspension or revocation of driver’s licenses, which constitutes a remedial civil sanction, see Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997), is primarily governed by section 5-65-104. When DF&A initially suspends or revokes the driving privilege of a person arrested for DWI violating Ark. Code Ann. § 5-65-103 (Repl. 1997), “[t]he suspension or revocation shall be based on the number of previous offenses as follows:”

(A)(i) Suspension for one hundred twenty (120) days for the first offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was one-tenth of one percent (0.1%) or more by weight of alcohol in the person’s blood, § 5-65-103;
* * *
(B)(i) Suspension for sixteen (16) months, during which no restricted permits may be issued, for a second offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was one-tenth of one percent (0.1%) or more by weight of alcohol in the person’s blood, § 5-65-103, within three years of the first offense.

Ark. Code Ann. § 5-65-104(a)(4)(A)-(B). In determining the number of previous offenses a person has in considering suspension or revocation, the Office of Driver Services is required to “consider as a previous offense:”

(A) Any convictions for offenses of operating or being in actual physical control of a motor vehicle while intoxicated . . . under § 5-65-103 or refusing to submit to a chemical test under § 5-65-202 which occurred prior to July 1, 1996; and
(B) Any suspension or revocation of driving privileges for arrests for operating or being in actual physical control of a motor vehicle while intoxicated . . . under § 5-65-103 or refusing to submit to a chemical test under § 5-65-202 occurring on or after July 1, 1996, where the person was not subsequently acquitted of the criminal charges.

Ark. Code Ann. § 5-65-104(a)(9)(A)-(B). If in a criminal case, a court of law renders any decision “arising from any violation of § 5-65-103,” an acquittal “on the charges” will reverse the administrative suspension or revocation of the driver’s license suspended or revoked. Ark. Code Ann. § 5-65-104(d)(2)(B).

The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Mountain Home Sch. Dist. v. T.M.J. Bldrs., 313 Ark. 661, 858 S.W.2d 74 (1993). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id.

In determining the number of “previous offenses” on which to base its sanction, DF&A is clearly directed to include “[a]ny convictions” for offenses under section 5-65-103. Ark. Code Ann. § 5-65-104(a)(9)(A) (emphasis added). Under this provision, it is obvious that two separate convictions of DWI first offense, both violations of section 5-65-103, should be counted as two “previous offenses.” However, the crux of this case is the effect, if any, of the municipal court’s acquittal on the DWI second offense charge in light of section 5-65-104(d)(2)(B). Cotton’s position is that this acquittal of DWI second offense precludes DF&A from relying on the DWI first-offense conviction as a basis for imposition of second-offense sanctions. In other words, he was “acquitted] on the charges” as that phrase is used in section 5-65-104(d)(2)(B), requiring reversal of the administrative suspension.

We must reject Cotton’s argument because it fails to take into consideration that DWI first offense is just as much a violation of section 5-65-103 as is DWI second offense. The difference is only one of quantity. See McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). While the Van Buren Municipal Court acquitted Cotton of DWI second offense, it certainly did not acquit Cotton of the “charge” of violating section 5-65-103. Once the municipal court convicted Cotton of DWI first offense, he simply had two separate convictions of violating section 5-65-103: one on October 26, 1994, and the other on January 8, 1997. Pursuant to section 5-65-104(a)(9)(A), DF&A was required to consider both of these violations of section 5-65-103 as “previous offenses.” There was no “acquittal on the charges” under section 5-65-104(d)(2)(B) because the municipal court never acquitted Cotton of violating section 5-65-103. Given that there was no such acquittal, the decision of the Van Buren Municipal Court had no effect on the administrative suspension. Accordingly, we conclude that the trial court erred in finding that DF&A could not suspend Cotton’s license for sixteen months.

As an alternative theory for affirmance, Cotton makes the assertion that “[i]f the Appellant’s contention is allowed to stand it would constitute an unlawful delegation of judicial power to the executive branch.” His sole citation to authority to support this contention is Davis v. Britt, 243 Ark. 556, 420 S.W.2d 863 (1967), where this court held that a statute allowing the state hospital to retain a defendant in custody until he was determined “sane” was an unconstitutional delegation of judicial power to the executive branch. We fail to see how Davis is apposite to the present case. Moreover, section 5-65-104 ultimately leaves the factual determination of whether there has been a violation of section 5-65-103 in the hands of the judiciary.

The judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: Ray Thornton, Justice.

text:
    Mack LANGFORD v. STATE of Arkansas
    CR 97-976
    962 S.W.2d 358
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Mark S. Cambiano, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant Mack Langford was convicted of possession of methamphetamine with intent to deliver, simultaneous possession of methamphetamine and a firearm, possession of marijuana with intent to deliver, and possession of drug paraphernalia. A jury sentenced him to two forty-year prison terms and two ten-year prison terms for the respective offenses and imposed fines of $50,000. The trial court ordered the sentences to run concurrently for a total sentence of forty years. Appellant raises four points on appeal. We find no error and affirm.

Around 2:30 a.m. on September 29, 1993, Officer Stephen Brown of the Fifth Judicial Drug Task Force applied for a warrant to search the residence of appellant for various drugs, drug paraphernalia, drug money, related drug documents, and weapons. In support of his application for a warrant, Officer Brown submitted his affidavit and the affidavit of Mary Duncan. In his affidavit, Officer Brown stated that on September 24, 1993, he received information from two confidential informants that appellant was providing methamphetamine for sale and distribution to Doyle Gray and Kathy Buchanan, also known as Mary Duncan. In addition, Officer Brown detailed a controlled drug buy that he arranged for the evening of September 28, 1993. He recounted that the two informants went to Mary Duncan’s residence to attempt to buy an “eight ball” of methamphetamine, and, while under police surveillance, Duncan went to appellant’s residence and then returned to her home where she delivered an eight ball to the informants. Officer Brown further stated that a subsequent field test on the eight ball revealed methamphetamine.

Officer Brown also declared that both informants had provided information against their penal interests and had provided information that led to the subsequent arrest and prosecution of drug violators. Officer Brown stated that he had verified the informants’ information through his personal knowledge, as well as intelligence received and placed in case files of the Fifth Judicial Drug Task Force. Officer Brown also listed several exigent circumstances, which he believed made a nighttime search necessary.

Mary Duncan executed the second affidavit in support of the search warrant. Duncan stated that on September 28, 1993, she gave appellant $325 for the purchase of methamphetamine. She also stated that she had personal knowledge that appellant had drugs packaged for sale at his residence, which he normally kept in his bathroom cabinets, and that he had provided Doyle Gray with drugs on numerous occasions. Duncan further recounted that she had seen drug paraphernalia and firearms at appellant’s residence within the previous week. Finally, she declared that she had personal knowledge that appellant was planning to leave his residence on that day.

Based on this information, Municipal Judge Dennis Sutterfield issued a search warrant that authorized the search of appellant’s residence at anytime, day or night. Officer Brown and local law enforcement officers executed the warrant at approximately 3:30 a.m. on September 29, 1993; they seized marijuana, methamphetamine, firearms, cash, and various items of drug paraphernalia.

Appellant filed pretrial motions to suppress the evidence seized during the search and any statements he made to the police during the execution of the warrant. Fie argued that the affidavits contained insufficient facts to establish probable cause and to justify a nighttime search. Appellant further asserted that the statements were the fruits of an illegal search. The trial court denied the motions.

For his first point for reversal, appellant argues that the trial court erred in denying his motion to suppress the evidence seized from his residence because the affidavits for the search warrant failed to establish the reliability of the informants and how they knew about his alleged illegal drug activities, contained material false statements, and failed to establish the particular place where the drugs or other contraband could be found. We address each of these alleged errors in the affidavits separately.

In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances; we view the evidence in the fight most favorable to the appellee, and we reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997), cert. denied, 117 S. Ct. 2411 (1997). We apply the totality-of-the-circumstances analysis when determining whether the issuing magistrate had a substantial basis for concluding that probable cause existed. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996); State v. Mosley, 313 Ark. 616, 856 S.W.2d 623 (1993). Under this analysis,

[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding] ” that probable cause existed.

Moore, 323 Ark. at 538, 915 S.W.2d at 289-90 (citing Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990)).

Rule 13.1(b) of our Arkansas Rules of Criminal Procedure adopts the totality-of-the-circumstances analysis and provides in part:

If an affidavit or testimony is based in whole or part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

Appellant contends that Officer Brown’s affidavit did not meet the requirements of Rule 13.1(b) because he failed to set forth particular facts bearing on the informants’ reliability and failed to disclose the basis of the informants’ beliefs that appellant was involved in illegal drug activity. Appellant bases his hearsay complaint on Officer Brown’s averment that he had received information from two confidential informants alleging that appellant regularly provided methamphetamine to Doyle Gray and Mary Duncan for resale and distribution. Appellant correctly argues that Officer Brown did not establish how the informants obtained their information. With respect to the informants’ reliability, Officer Brown’s affidavit contained the following statements:

CI-A and CI-B have both provided information against their penal interest and both had provided information about other drug violators, which has been verified though affiant’s personal knowledge, as well as intelligence received and placed in case files of the Fifth Judicial Drug Task Force. Both informants have provided information which led to the subsequent arrest and prosecution of violators.

Although Officer Brown did not provide specific details about the informants’ assistance in previous drug cases, he stated more than a mere conclusion and disclosed enough information to show that the informants were worthy of belief. See Akins v. State, 264 Ark. 376, 572 S.W.2d 140 (1978).

In addition, under Rule 13.1(b), failure to establish the bases of knowledge of the confidential informants is not a fatal defect “if the affidavit viewed as a whole provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in particular places.” Heard v. State, 316 Ark. 731, 736-37, 876 S.W.2d 231, 234 (1994), (quoting Mosley v. State, 313 Ark. 616, 622, 856 S.W.2d 623, 626 (1993)). Here, Officer Brown’s affidavit, viewed as a whole, provided a substantial basis to believe that drugs and other contraband would be found at appellant’s residence. Officer Brown’s personal account of the controlled-drug buy established that the informants went to Mary Duncan’s residence to purchase methamphetamine with marked money, Duncan left her house and went to appellant’s residence to get the eight ball for the informants, she returned to her house where she gave the drugs to the informants, she was under surveillance during this time, and the drugs tested positive for methamphetamine. Officer Brown’s affidavit also established that the informants had been searched for drugs before they went to Duncan’s residence and that none was found. Based on this information alone, we conclude that Officer Brown’s affidavit provided a substantial basis for a finding of reasonable cause to believe that drugs and other contraband would be found at appellant’s residence.

We turn next to appellant’s second argument concerning the insufficiency of the affidavits used to obtain the search warrant. He contends that both affidavits contained numerous material false statements. This court has recognized that, under Franks v. Delaware, 438 U.S. 154 (1978), a warrant should be inval idated if a defendant shows by a preponderance of the evidence that: (1) the affidavit contained a false statement that was made knowingly, intentionally, or recklessly by the affiant; and (2) the false statement was necessary to a finding of probable cause. Echols v. State, 326 Ark. 917, 950, 936 S.W.2d 509, 525 (1996), cert. denied, 117 S. Ct. 1853 (1997) (citing Franks, 438 U.S. at 155-56). We have further recognized that, if such findings are made, the Franks test requires that the false material should be excised and the remainder of the warrant examined to determine if probable cause still exists. Id. If the truthful portion of the warrant makes a sufficient showing of probable cause, the warrant will not be invalidated. Id.

In this case, we have found several inconsistencies between statements contained in the affidavits and testimony given at the suppression hearing. For example, both affidavits averred that Duncan had purchased an eight ball from appellant on the evening of September 28, 1993. Also, Duncan averred that appellant kept drugs packaged for sale in his bathroom cabinets and that he supplied drugs for resale and distribution to Doyle Gray. However, at the suppression hearing, Duncan testified that, while she got the drugs from appellant’s residence, she actually purchased them from someone that she did not know. Duncan further denied knowing that Gray had purchased drugs from appellant or that appellant kept drugs at his residence.

Notwithstanding these and other inconsistencies, appellant has failed to show that the affiants made any false statements “knowingly and intentionally or in reckless disregard of the truth.” Heritage v. State, 326 Ark. 839, 846, 936 S.W.2d 499, 503 (1996). Even if appellant is correct that certain statements were false, and even if Officer Brown and Mary Duncan knew the statements to be false, the rest of the .affidavits made a sufficient showing to constitute probable cause. The affidavits established that Duncan purchased drugs for the informants at appellant’s residence on the evening of September 28, 1993, with marked-buy money, and that appellant was going out of town on September 29. Based on this information alone, there was a sufficient showing for probable cause to issue the search warrant.

Appellant’s final argument under his first point is that the affidavits violated Rule 13.1(b) of the Arkansas Rules of Criminal Procedure, which requires that the application for a search warrant describe with particularity the places to be searched. Appellant complains that Officer Brown’s affidavit did not establish “items subject to seizure would be found in particular places” and that “the facts set out in Duncan’s affidavit would have only warranted a search of the appellant’s bathroom.” Appellant cites no authority for the proposition that an affidavit is insufficient if it fails to identify the precise room within a residence in which drugs or other contraband may be found, and we conclude that his argument is without merit. The affidavits established sufficient facts to support a finding of probable cause to believe that contraband could be found in the locations described in the warrant.

Appellant’s second point on appeal is that the trial court erred in denying his motion to suppress because the evidence was seized as the result of an illegal nighttime search. He contends that the affidavits for the search warrant contained an insufficient factual basis to justify a search at night.

It is well settled that an affidavit must set forth a factual basis as a prerequisite to the issuance of a nighttime warrant and that mere conclusions are insufficient to justify a nighttime search. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996); Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993). Rule 13.2(c) of the Arkansas Rules of Criminal Procedure provides that the issuing judicial officer may authorize a search at any time, day or night, if there is reasonable cause to believe that:

(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy; ....

In reviewing whether the requirements of the rule were met, we make an independent determination based upon the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Echols, 326 Ark. at 954, 936 S.W.2d at 527.

Officer Brown listed four “exigent circumstances” in support of his application for a nighttime warrant to search appellant’s residence:

(1) There are currently drugs at the Mack Langford residence, which are packaged and maintained in a manner that their destruction or removal can be easily accomplished.
(2) Mack Langford has threatened CI-B with a semi-automatic pistol within the last week and is, therefore, believed to be armed and dangerous, thus making the element of surprise inherent with a nighttime search essential for the safety of the officers executing the warrant.
(3) Affiant has information that Mack Langford will be leaving the morning of 29 September 1993, thus giving rise to affiant’s belief that the drugs will be removed, hidden or otherwise disposed of.
(4) The location of the residence is located such as to make speedy access impossible in that it sits on a hill overlooking the road, which provides the only access to the property.

After a careful review of the affidavits presented in this case, we have determined that, under the totality of the circumstances, the trial court’s decision to deny the motion to suppress evidence seized in the nighttime search was not clearly against the preponderance of the evidence. The affidavits set forth information that Duncan, while under police surveillance, purchased drugs for the confidential informants at the appellant’s residence on the evening of September 28, 1993; that Duncan bought the drugs with marked money; that Duncan had seen drug paraphernalia and firearms at appellant’s residence within the previous week; that appellant was leaving his residence sometime the morning of September 29; that appellant had threatened one of the informants with a weapon within the last week; and that the location of the residence made speedy access impossible. Based on this information, we hold that there was a sufficient factual basis for a nighttime search.

Appellant next argues that statements he made to officers following their entry into his residence should have been suppressed as “fruits of the poisonous tree” because they were obtained from an illegal search. We have already found that the issuing judge had a substantial basis to conclude there was probable cause to issue the search warrant; therefore, this argument must fail. As we have previously noted, where the tree is not “poisonous,” neither is the fruit. Miller v. State, 269 Ark. 341, 348, 605 S.W.2d 430, 435 (1980).

For his final contention, appellant argues that remarks made by the State during closing argument of the penalty phase of the trial warrant reversal of the convictions. The pertinent argument and resulting colloquy follow:

Prosecutor: If you went home and you saw a guy give your granddaughter or your grandson or your son or your friends some dope —
Defense: Your Honor, I want to object to that about being the Golden rule argument and the Prosecutor knows that’s improper.
The Court: Well, it’s a form of argument. The jury can reject if they —•
Prosecutor: — saw a man hand that child some dope, which one among you would not have the nerve to knock that dope out of his hand? Everyone one of you; and you can do the very same thing this afternoon by imposing yourself — your twelve opinions between him and people like him in your community.

Appellant contends that the prosecutor’s remarks constituted an impermissible “golden rule” argument and that the trial court committed reversible error for failing to sustain his objection and for failing to admonish the jury to disregard the remarks.

We have repeatedly stated that failure to give an admonition to the jury is not prejudicial error where the instruction or admonition was not requested below. Gray v. State, 327 Ark. 113, 937 S.W.2d 639 (1997); Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996); Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993), cert. denied, 114 S.Ct. 391 (1993). In our review of the record, we note that, while appellant objected to the prosecutor’s remarks, he did not ask the trial court to admonish the jury. It appears that the trial court was preparing to offer an instruction or an admonition when the prosecutor interrupted his comments. Under these circumstances, appellant should have renewed his objection and asked for an admonition, but he did not do so. We also note that, prior to closing arguments of the guilt phase, the trial court had instructed the jury that “closing arguments of the attorneys are not evidence” and that “[a]ny argument, statements, or remarks of the attorneys having no basis in the evidence should be disregarded by you.” In light of the court’s instruction and appellant’s failure to request an admonition or other curative relief, we conclude that there was no reversible error.

For the reasons stated, the judgment is affirmed.


text:
    SOCIAL WORK LICENSING BOARD v. Randall C. MONCEBAIZ
    97-625
    962 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Winston Bryant, Att’y Gen., by; Leigh Anne Yeargan, Asst. Att’y Gen., for appellant.

      Walter Skelton, for appellee.
   Ray Thornton, Justice.

The issue on this appeal is whether appellant Arkansas Social Work Licensing Board (the “Board”) erred in denying appellee Randall Moncebaiz licensure in Arkansas. On review, the Polk County Circuit Court reversed the Board’s decision denying Mr. Moncebaiz’s application to have his Texas “Social Work Associate License” transferred as arbitrary and capricious. We disagree. We hold that the Board’s decision was supported by the clear and unambiguous language of our Social Work Licensing Act and was not arbitrary and capricious. Accordingly, we affirm the Board’s decision and r'everse the order of the circuit court.

On March 11, 1996, Mr. Moncebaiz contacted the Board and applied for transfer of his Texas Social Work Associate License to Arkansas, based on our reciprocity statute, Ark. Code Ann. § 17-46-302 (Repl. 1995). At the time of this contact, he was planning to move from Texas to Mena, Arkansas, to accept a position as a social worker at Alpha Psychological. In a letter dated April 8, 1996, the Board denied reciprocity based on its determination that Mr. Moncebaiz did not possess “a degree in social work approved by the Council on Social Work Education (CSWE) in order to be approved for licensure.” Mr. Moncebaiz requested a hearing to reconsider the Board’s decision, and the Board allowed him to appear personally. However, after his appearance, the Board again denied his application, stating that it had “no flexibility at all” with respect to the education requirement.

Mr. Moncebaiz filed a petition for judicial review in the Polk County Circuit Court under our Administrative Procedure Act, Ark. Code Ann. § 25-15-212 (Repl. 1996). The parties met before the Board on November 11, 1996, to create a record for the circuit court’s review of the Board’s decision because no minutes existed from Mr. Moncebaiz’s prior appearance. The record of this hearing establishes that Mr. Moncebaiz was an experienced social worker in Texas. However, the Board based its decision denying him licensure on the facts that Mr. Moncebaiz obtained his degree in behavioral sciences from Concordia College, an Austin, Texas, institution that was not accredited; that he received his degree in a degree program other than social work; and that his license in Texas was an “associate” license, a designation for which our Licensing Act does not provide. In reaching its decision, the Board applied a literal reading of our qualification statute, Ark. Code Ann. § 17-46-306(a)(l) (Repl. 1995).

The Board’s sole argument on appeal is that its decision denying Mr. Moncebaiz licensure was not arbitrary and capricious and was supported by substantial evidence. Under the Administrative Procedure Act, we review state agency decisions to determine whether they should be reversed under any of the six criteria set forth in section 25-15-212(h). Arkansas Dept. of Human Servs. v. Thompson, 331 Ark. 181, 185, 959 S.W.2d 46 (1998). The test for substantial evidence is whether the proof before the agency was “so nearly undisputed that fair-minded persons could not reach [the same] conclusion.” Arkansas State Highway & Transp. Dep’t v. Kidder, 326 Ark. 595, 598, 933 S.W.2d 794, 795 (1996). We do not review this case under the substantial-evidence standard because the issue is not whether the evidence supports the Board’s finding. Rather, the issue is whether the Board erred in applying the provisions of our Licensing Act, and we review the Board’s decision to ascertain whether it was “arbitrary, capricious, or characterized by abuse of discretion.” See Ark. Code Ann. § 25-15-212(h)(6).

We conclude that the Board’s decision finding that Mr. Moncebaiz did not meet the requirements for reciprocity under our statute was not arbitrary and capricious or characterized by an abuse of discretion. We reach this conclusion for two reasons: (1) Mr. Moncebaiz failed to qualify for licensure under section 17-46-306, and thereby failed to meet the requirements for reciprocity; and (2) Mr. Moncebaiz was licensed in Texas as an “associate,” a licensing level that is lower than any of our three levels of qualification provided under subsections 17-46-306(a), (b), & (c).

Review of agency decisions by both the circuit court and this court is limited in scope. Thompson, 331 Ark. at 185, 959 S.W.2d at 48. Our review is directed toward the decision of the administrative agency, rather than the decision of the circuit court. Id. The agency is better equipped “by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies.” Id.

We will not substitute our judgment for that of the agency unless the decision of the agency is arbitrary and capricious. Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 461, 885 S.W.2d 863, 865 (1994). To reverse an agency’s decision because it is arbitrary and capricious, it must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. Arkansas Dep’t of Human Servs. v. Kistler, 320 Ark. 501, 508, 898 S.W.2d 32, 36 (1995); see also Douglass, 318 Ark. at 460, 885 S.W.2d at 865. Although an agency’s interpretation is highly persuasive, where the statute is not ambiguous, no interpretation is warranted. Junction City Sch. Dist. v. Alphin, 313 Ark. 456, 463, 855 S.W.2d 316, 320 (1993). Therefore, where we determine that the statute is plain and unambiguous, we will not interpret it to mean anything other than what it says. Id.; see also Arkansas Dep’t of Human Servs. v. Wilson, 323 Ark. 151, 156, 913 S.W.2d 783, 785 (1996).

Because the issue in this case turns on the application of provisions of the Social Work Licensing Act, we must bear in mind our well-settled rules of statutory construction. Our first rule of statutory interpretation is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Board of Trustees v. Stodola, 328 Ark. 194, 199, 942 S.W.2d 255, 257 (1997). Wherever possible, we read statutes relating to the same subject matter in harmony. Id.

We observe no ambiguity in the provisions of our Licensing Act that are before us. The legislature enacted the Licensing Act for the purpose of “protecting] the public by setting standards of qualification, training, and experience for those who seek to represent themselves to the public as social workers and by promoting high standards of professional performance for those engaged in the practice of social work.” Ark. Code Ann. § 17-46-102 (Repl. 1995). In accordance with this stated purpose, the general assembly enacted a qualification statute that sets forth the following requirements to receive an Arkansas social-work license:

(a) The board shall issue a license as a licensed social worker to an applicant who qualifies as follows:
(1) Has a baccalaureate degree in a social work program-accredited by the Council on Social Work Education or receives before June 17, 1986, a baccalaureate degree in a social work program from an accredited social work institution; and
(2) Has passed an examination approved by the board for this purpose and level of practice.

Ark. Code Ann. § 17-46-306(a) (emphasis added).

The legislature also enacted a provision allowing an applicant from another state to be licensed through reciprocity as long as the applicant “meet[s] all of the other requirements of this chapter and who, at the time of application, is licensed as a social worker by a similar board of another state, . . . whose standards, in the opinion of the board, are not lower than those required by this chapter.” Ark. Code Ann. § 17-46-302. Under the reciprocity statute, the applicant must meet all of the requirements of the Licensing Act, which includes the requirement that the applicant have a degree either in an accredited social-work program or in a social-work program at an accredited institution. Ark. Code Ann. § 17-46-306(a)(l).

Mr. Moncebaiz admits that neither the institution from which he received his degree nor the program in which he received his degree were accredited at the time that he attended Concordia College. Under the plain wording of our reciprocity statute, Mr. Moncebaiz must meet “all of the other requirements of this chapter.” Because he does not meet the requirement of having “a baccalaureate degree in a . . . program accredited by the Council on Social Work Education” as required under our qualification statute, he was not qualified to receive a social-work license in Arkansas and his application was properly denied.

Second, during the November 11 hearing, some Board members placed emphasis on the fact that Mr. Moncebaiz’s Texas license was that of an “Associate Social Work License.” Mr. Moncebaiz explained to the Board that the “associate” designation is one that is “given for individuals whose degree is in a related field to social work but not in social work, but who have passed the national licensing test, nonetheless.” He further stated that his associate designation did not restrict his practice in the social-work field in Texas.

This “associate” designation is one that exists in Texas, but does not exist in Arkansas. Our Licensing Act has no similar provision giving an individual with a degree in a field related to social work the right to even take the examination. Our qualification statute requires that the applicant have a degree in a “social work program,” and does not provide a designation for a degree in a related program. Ark. Code Ann. § 17-46-306(a). Our reciprocity statute requires that the applicant must be licensed as a social worker by a board of another state whose standards are “not lower than” the Arkansas Board’s standards. Ark. Code Ann. § 17-46-302. Reading our reciprocity statute in harmony with our qualification statute, we conclude that a state that issues a license without requiring a degree in a social-work program has lower standards than those required under section 17-46-306(a) of the Arkansas Social Work Licensing Act. Therefore, Mr. Moncebaiz’s license was issued under a lower “associate” standard, and he was not entitled to reciprocity under our Act. The Board did not err in denying Mr. Moncebaiz’s license on this basis.

Because we determine that the Board’s decision did not lack a rational basis or rely on a factual finding based on an erroneous view of the law, we conclude that it was not arbitrary and capricious or characterized by abuse of discretion. We reverse the circuit court’s decision and remand for the purpose of reinstating the Board’s decision denying Mr. Moncebaiz’s license.


author: Per Curiam.

text:
    Henry Lee BRAZIL v. STATE of Arkansas
    CR 98-109
    959 S.W.2d 55
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Robert N. Jeffrey, for appellant.
    No response.
   Per Curiam.

Henry Lee Brazil, by his attorney, has filed a motion for rule on the clerk. The motion states that the record was not timely filed and that it was no fault of the appellant.

Appellant filed a notice of appeal and designation of record on October 17, 1997, following the entry on September 25, 1997 of terms and conditions of suspended imposition of sentence. Subsequently, on December 12, 1997, the Dallas County Circuit Court entered a judgment convicting appellant of burglary and theft of property. Appellant did not timely file a notice of appeal after entry of the judgment. Appellant’s attorney states that the record, as certified by the Dallas County Circuit Clerk on December 23, 1997, did not contain the judgment and commitment order filed on December 12, 1997. Appellant’s attorney further suggests that if the Dallas County Circuit Clerk had complied with Administrative Order No. 8, Section III.a, as amended on December 4, 1997, and forwarded a copy of the judgment and commitment order to appellant’s counsel of record, he could have filed a timely notice of appeal.

This court has held that we will grant a motion for rule on the clerk, which we will treat as a motion for belated appeal, when the attorney admits that the notice of appeal was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the notice of appeal, and upon filing same, the motion for belated appeal will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. See Warren v. State, 329 Ark. 637, 950 S.W.2d 462 (1997).

The present motion for rule on the clerk is denied.


text:
    Tommy J. DAVIS v. STATE of Arkansas
    CR 98-127
    959 S.W.2d 54
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Charles E. Davis, for appellant.
    No response.
   Per Curiam.

Tommy J. Davis, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Charles E. Davis, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Rocky HALTER v. STATE of Arkansas
    CR 98-119
    959 S.W.2d 55
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Darrell F. Brown, for appellant.
    No response.
   Per Curiam.

Petitioner, Rocky Halter, by his attorney, Darrell F. Brown, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    Dirk JOHNSON v. STATE of Arkansas
    CA CR 97-1444
    959 S.W.2d 54
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Norman M. Smith, for appellant.
    No response.
   Per Curiam.

Petitioner, Dirk Johnson, by his attorney, Norman M. Smith, has filed a motion for belated appeal. His attorney admits that he failed to file the notice of appeal on time.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    David Scott NOGGLE v. STATE of Arkansas
    CR 97-1474
    962 S.W.2d 368
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Petitioner, pro se.
    No response.
   Per Curiam.

On August 16, 1996, judgment was entered reflecting that David Scott Noggle had entered a plea of guilty to the felony offenses of two counts of rape, intimidating a witness, residential burglary, and terroristic threatening. An aggregate sentence of three hundred months’ imprisonment in the Arkansas Department of Correction was imposed.

On October 15, 1996, Noggle filed in the trial court a pro se petition for postconviction relief, invoking Criminal Procedure Rule 26 and Criminal Procedure Rule 37, in which he sought to withdraw the guilty plea under Rule 26 or to have the plea and sentence vacated under Rule 37. He subsequently retained an attorney, Jeff Rosenzweig, who was permitted by the court to file an amended petition.

On February 27, 1997, the trial court denied the petition and amended petition. Attorney Rosenzweig filed a timely notice of appeal on March 25, 1997. On June 5, 1997, Rosenzweig filed a “Notice of Discontinuation of the Appeal.” Attached to the notice was a document signed by Noggle which said:

After consultation with counsel and with my family, I have decided not to appeal the decision of the Circuit Court denying my petition for relief under Rule 26 and Rule 37.

The circuit court entered an order on June 12, 1997, permitting the appeal to be discontinued.

On December 9, 1997, Noggle filed in this court a pro se motion for belated appeal and affidavit of indigency pursuant to Criminal Procedure Rule 36.9, which is now Rule 2(e) of the Rules of Appellate Procedure — Criminal, seeking to continue with the appeal. He contends in the motion that he should be permitted to perfect the appeal to this court because his acquiescence in dismissing the appeal was based on his inability to pay his attorney and that he was unaware that he could petition this court to allow him to proceed in forma pauperis.

As is the practice of this court when a pro se motion is filed to proceed with a belated appeal, an affidavit in response to the allegations in the motion was requested from Mr. Rosenzweig. Rosenzweig avers in his affidavit that there was never an assertion by petitioner Noggle or the Noggle family that petitioner was unable to pay the cost of the appeal. Rather, the decision to drop the appeal was made on the basis of petitioner’s fear of obtaining a greater sentence if tried for the offenses and the fact that petitioner had been assigned to a program which allowed him to work at a county jail. Rosenzweig further avers that he spoke directly with petitioner by telephone about the decision and subsequently secured his signature on the request to drop the appeal.

Rosenzweig notes that he received a letter from petitioner, dated October 14, 1997, which is appended to his affidavit, in which petitioner requested that Rosenzweig assist him in having the appeal reinstated by asserting that the appeal was dropped for financial reasons and further stating that he (Rosenzweig) had told petitioner that the appeal could be resumed later if the Noggle family were able to afford it. Rosenzweig has also appended his letter in response to that letter in which he declined to make the statement “because it would not be true.”

Rule 2(f) of the Rules of Appellate Procedure — Criminal provides in pertinent part:

Dismissal of Appeal. If an appeal has not been docketed in the Supreme Court, the parties, with the approval of the trial court, may dismiss the appeal . . . upon a motion and notice by the appellant.

Here, Rosenzweig gave notice to the circuit court before the appeal was docketed in this court that appellant had elected to discontinue the appeal. The notice was accompanied by a statement signed by appellant Noggle verifying that he had made the decision to drop the appeal. The court subsequently entered an order dismissing the appeal. Considering these circumstances, we conclude that counsel followed proper procedure to dismiss the postconviction appeal, and petitioner has not shown good cause to allow its reinstatement.

Motion denied.


text:
    Anita Cummings RUSH v. STATE of Arkansas
    CR 98-115
    959 S.W.2d 56
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Robert S. Tschiemer, for appellant.
    No response.
   Per Curiam.

Appellant Anita Rush, by and through her attorney, has filed a motion for a rule on the clerk. Her attorney, Robert S. Tschiemer, states in the motion that the record was tendered late due to a mistake on the part of appellant’s former counsel, Jason Files. In support, the affidavit of Mr. Files, admitting his error, was attached an exhibit to the motion.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Larry STEPHENSON v. STATE of Arkansas
    CR 98-120
    959 S.W.2d 56
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Lori A. Mosby, for appellant.
    No response.
   Per Curiam.

Appellant Larry Stephenson, by his attorney Lori A. Mosby, has filed a motion for belated appeal. Mosby admits by motion that the appeal was not timely filed due to a mistake on her part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is therefore granted.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.