author: L. Corbin, Justice.

text:
    Roger Lewis COULTER v. STATE of Arkansas
    CR 00-281
    31 S.W.3d 826
    Supreme Court of Arkansas
    Opinion delivered November 30, 2000

      Alvin Schay, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   L. Corbin, Justice.

Appellant Roger Lewis Coulter was convicted of capital murder and sentenced to death for killing a five-year-old girl during the course of and in furtherance of raping her. This court affirmed the conviction and sentence in Coulter v. State, 304 Ark. 527, 804 S.W.2d 348, cert. denied, 502 U.S. 829 (1991). The current appeal is from the order of the Ashley County Circuit Court denying Appellant’s petition for postconviction relief. Our jurisdiction of this appeal is pursuant to Ark. R. Crim. P. 37 and Ark. Sup. Ct. R. 1-2(a)(8). We find no error and affirm.

The record reflects that Appellant was living with the child victim and her mother in Warren, Arkansas. On the morning of April 12, 1989, Appellant left home with the child and was supposed to take her to the local Headstart center, which he did from time to time. According to the child’s mother, Appellant returned home that morning somewhat later than normal, wearing dirty clothes and claiming that he had experienced car trouble. After eating breakfast and bathing, Appellant drove to his mother’s house to borrow some money. Appellant was later seen cashing a check from his mother at a local bank. Appellant did not return the child home that afternoon. Her mother and grandmother eventually went to the Headstart center to pick up the child. There, they were informed that the child had not been dropped off that day.

The victim’s family filed a missing-person report with the local police, and a search for the child was undertaken. Police officers found the child’s body the following day, in a wooded area where witnesses had seen Appellant in his car the day before. The child’s partially clothed body was found stuffed inside a hollow tree, covered by some branches and leaves. Testimony from the state’s chief medical examiner established that the child had been raped and ultimately died of smothering and strangulation. Appellant was eventually arrested in California, some five weeks after the murder.

Following his conviction and appeal, Appellant filed a petition for postconviction relief pursuant to Rule 37. Appellant raised seven grounds for relief: (1) the prosecutor made improper comments during closing argument; (2) the trial court erroneously excluded two veniremen from the jury; (3) the aggravating circumstance submitted by the State was insufficient as a matter of fact and law; (4) there is an unconstitutional overlap between the capital murder and first-degree murder statutes; (5) trial counsel was ineffective for failing to present testimony from Appellant’s siblings during the penalty phase; (6) trial counsel was ineffective for failing to obtain a serology report from the state crime laboratory; and (7) trial counsel was ineffective for fading to discover and obtain Appellant’s prior mental-health records from the Arizona Department of Correction. The trial court denied relief on all grounds. We begin our review by examining the claims of ineffective assistance of counsel.

The test for proving claims of ineffective assistance of counsel and the corresponding standard of review are well settled:

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000); Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. at 99, 3 S.W.3d at 325. Petitioner must also show that the deficient performance prejudiced his defense; this requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. Unless the petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam); Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).
The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence- in the outcome of the trial. Id. In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith, 341 Ark. 722, 19 S.W.3d 612. This court will not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Jones, 340 Ark. 1, 8 S.W.3d 482; State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999).

Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). With this standard in mind, we review the issues of ineffectiveness raised by Appellant.

I. Witnesses in Mitigation

Appellant first argues that his trial counsel was ineffective for failing to interview his siblings for the purpose of presenting mitigating evidence during the penalty phase of his trial. Appellant asserts that two of his brothers, David Coulter and Eddie Coulter, would have testified that Appellant had been sexually abused by his uncle as a child. Affidavits filed by both brothers indicate that they were willing to testify on Appellant’s behalf, but they were never contacted by defense counsel about the case. Their affidavits reflect assertions that several of the male children, including Appellant, were sexually abused by their uncle. The affidavits also contained descriptions of Appellant’s turbulent childhood and past mental problems. In addition, Eddie’s affidavit reflects his opinion that the victim’s mother and grandmother, Eddie’s wife, did not want Appellant to get the death penalty, but they were never asked about their feelings by defense counsel.

In his deposition, trial counsel, Arthur L. Allen, explained that he did not attempt to contact Eddie because he considered him to be hostile to the defense. Allen pointed out that even though Eddie is Appellant’s brother, he was also married to the victim’s grandmother at the time. Allen stated that Eddie was the only one of Appellant’s siblings that attended the trial, and that neither Eddie nor his wife had given him any impression that they would have been willing to talk to him about the case. Indeed, Allen recalled that during his closing argument, he had to have them removed from the courtroom because they continued to interrupt him. Allen stated that he did not recall talking to any members of Appellant’s family, other than his mother and stepfather. He admitted that David’s testimony that he, too, had been sexually abused by his uncle could have been mitigating evidence. Allen agreed with defense counsel that Appellant’s mother had given similar testimony.

The trial court denied relief on this point because the proffered testimony from the brothers would have been cumulative to that given by Appellant’s mother. The trial court also relied on the fact that the jury had unanimously found as a mitigating circumstance that “[Appellant] did not have the opportunities of a normal childhood because of the divorce of his parents, the alcoholism of his father, and his placement in foster homes.” We affirm the trial court’s ruling.

The constitutional guarantee of effective assistance of counsel extends to the sentencing phase of the defendant’s trial. See, eg., Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000); Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). See also Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983). Counsel’s failure to investigate and present substantial mitigating evidence during the sentencing phase may constitute ineffective assistance of counsel. Sanford, 342 Ark. 22, 25 S.W.3d 414 (citing Williams v. Taylor, 120 S. Ct. 1495 (2000)). See also Pickens, 714 F.2d 1455. Counsel is obligated to conduct an investigation for the purpose of ascertaining mitigating evidence, and the failure to do so is error. Williams, 120 S. Ct. 1495. Such error, however, does not automatically require reversal unless it is shown that, but for counsel’s errors, there is a reasonable probability that the sentence would have been different. Id. When reviewing a claim of ineffectiveness based upon failing to present adequate mitigating evidence, we must view the totality of the evidence — both that adduced at trial and that adduced in the postconviction proceeding. Id. (citing Clemons v. Mississippi, 494 U.S. 738 (1990)). The record of Appellant’s sentencing trial reflects that three witnesses were called to give mitigating evidence: Appellant’s mother, Laverne Temple; Dr. William Martin, a clinical psychologist; and Sister Maria Liebeck.

Appellant’s mother testified to the following events. Appellant was the eleventh of thirteen children. He was born prematurely and suffered health problems as a result. The family was poor. Appellant was six or seven years old when his parents divorced. His father had a drinking problem, such that when he drank, he would get out of control and threaten Appellant’s mother and the children. When his parents divorced, some of the children, including Appellant, were placed in foster homes. He was eventually returned to his mother’s home after she remarried. When he was twelve or thirteen, he was placed in reform school for running away from home and refusing to go to school. As an adult, he spent time in prison.

Appellant’s mother also testified that Appellant’s uncle had sexually abused the children. She explained that she was not aware of the abuse while it was happening, but that she became aware of it some time later. On cross-examination, however, she admitted that she had no personal knowledge that Appellant had been sexually abused, because she had not witnessed any abuse. Appellant argues that the evidence brought out on cross-examination of his mother completely negated her testimony that he was sexually abused as a child. He argues that the testimony of his brothers was essential to establish such abuse in the minds of the jurors. He asserts that had the jury heard his brothers’ testimony, there is a reasonable probability that the outcome of his sentence would have been different, given that the jury found only one aggravating circumstance. We are not persuaded by this argument.

The testimony offered in their affidavits fails to show that Appellant’s brothers had any more personal knowledge of the sexual abuse of Appellant than their mother. David’s affidavit reflects that “we had an uncle, Jimmy, who sexually abused the male children of our family. He abused me, and both Ricky and [Appellant] told me he abused them, also.” Similarly, Eddie’s affidavit reflects that “[w]e had a homosexual uncle and he sexually abused [Appellant] and some of my other brothers, and tried to sexually abuse me.” It is not clear from Eddie’s affidavit how he learned of Appellant’s abuse, and David’s affidavit states only that Appellant told him that he had been abused by their uncle. Accordingly, their testimony would have been subject to the same cross-examination that Appellant claims devastated his mother’s testimony. Additionally, as noted above, his mother was not the only person to give testimony about Appellant’s abusive childhood.

Dr. Martin, a psychologist retained by the defense, gave the following testimony concerning his examination and diagnosis of Appellant. Appellant’s father had terrorized the whole family, and his mother had an explosive temper. There was a lot of conflict in the family, and they lived in fear of what their father might do next. During his parents’ divorce, some of the children, including Appellant, had been placed in foster homes; two of Appellant’s sisters were subsequently adopted by other families. Appellant returned home to his mother and stepfather when he was eight or nine years old. The new family situation was not much better, because his stepfather was a heavy drinker and was strict and abusive. It was at this point that Appellant began to rebel against his parents’ authority and ran away from home, which eventually landed him in reform school. Following his experience in reform school, Appellant reported that he had been the victim of a homosexual rape.

Dr. Martin testified further that there was never reaily any period of stability in the family during Appellant’s childhood. He indicated that Appellant had a history of mental problems, and that he had been treated in the past with medication. He stated that Appellant was in the special-treatment unit in the Arizona prison system, where he was administered medication for his aggressive and explosive behavior. Appellant was similarly treated at a California mental-health center. Dr. Martin indicated that Appellant responded well to the medication treatments; however, once he was released from those facilities, he failed to continue with the treatment on his own. Ultimately, Dr. Martin diagnosed Appellant as having antisocial personality disorder and as having demonstrated a pattern of rather heavy alcohol abuse. He stated that Appellant’s disorder could be managed with the proper medication, and that the structured nature of prison life would be conducive to that type of treatment. Dr. Martin’s diagnosis of Appellant was confirmed by Dr. Michael Simon, who had previously examined Appellant at the Arkansas State Hospital.

Sister Liebeck testified that she had talked to Appellant during the time that he was in jail awaiting trial. She stated that Appellant talked to her about his childhood and told her that he could not remember feeling loved as a young child. She stated that since his incarceration, Appellant had found God. She also stated that she believed that Appellant had the will to make something of himself, and that he possessed redeemable qualities that would justify sparing his life.

In light of all the evidence that was submitted in mitigation, and the jury’s unanimous finding that Appellant’s childhood was a mitigating circumstance, we cannot say that the trial court erred in finding that trial counsel was not ineffective for failing to call as witnesses additional members of Appellant’s family. Generally, the decision whether to call a witness is a matter of trial strategy that is outside the purview of Rule 37. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). Moreover, the omission of a witness when his or her testimony is cumulative does not deprive the defense of vital evidence. Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Here, the trial court found that the proffered testimony from Appellant’s brothers would have been cumulative to that given by his mother. The trial court thus found that Appellant had not shown that he was prejudiced by counsel’s failure to secure their testimony for trial. Based on the totality of the evidence that was presented during the sentencing trial, we cannot say that this finding is clearly erroneous. Appellant has failed to demonstrate that there is a reasonable probability that, but for counsel’s failure to present testimony from his brothers, the jury would have reached a different result, namely a sentence of life imprisonment without parole. We thus affirm the denial of relief on this point.

II. Serology Report

Appellant’s second point for reversal is that trial counsel was ineffective for failing to obtain the serology report from the state crime laboratory. According to his affidavit, Investigator Tommy Crosthwait, of the Arkansas Death Penalty Resource Center, obtained the serology report from the crime lab in 1992. His affidavit indicates that the report showed that (1) the swab samples taken from the victim did not reveal the presence of semen or other male fluids, and (2) the clothing worn by Appellant the day of the crime did not reveal the presence of blood. The report itself, however, is not included in either the abstract or the record on appeal. This alone is reason to affirm the trial court’s ruling. It is Appellant’s burden to produce a record sufficient to demonstrate prejudicial error, and this court does not consider evidence not included in the record on appeal. See Martin v. State, 337 Ark. 451, 989 S.W.2d 908 (1999) (per curiam); Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995).

Notwithstanding this procedural bar, the argument must fail because Appellant does not indicate how counsel’s failure to obtain this report prejudiced his trial. It is not clear to us how this evidence would have been relevant, let alone exculpatory. The fact that blood was not detected on Appellant’s clothing is not significant, given that the child died as a result of smothering and strangulation. Similarly, the absence of semen does not annul the jury’s finding that the murder was committed in the course of or in furtherance of a rape. The medical examiner testified that there was evidence that the child had been penetrated with a foreign object. He stated that the bruising and tearing of the child’s anus and rectum were among the -most severe that he had ever seen. Given this strong testimony, we fail to see how a lack of semen would negate the rape itself or would cast doubt on Appellant as the perpetrator.

Furthermore, the record demonstrates that trial counsel cross-examined the medical examiner regarding the vaginal swabs taken during the autopsy. When trial counsel inquired about the availability of scientific testing, the medical examiner stated that such tests could establish the identity of the perpetrator. During his closing argument, trial counsel pointed out that the State had not provided any evidence that the samples taken from the child’s body had been tested and identified Appellant as the perpetrator. In other words, counsel suggested to the jurors that the State had not introduced such evidence because it did not point to Appellant as the perpetrator. Clearly, it would not have been beneficial to Appellant’s defense to have trial counsel reveal to the jury that the serology report merely showed that there was no semen present to test. We'thus affirm on this point.

III. Prior Mental-Health Records

For his third point, Appellant argues that trial counsel was ineffective for failing to discover that he had been diagnosed as paranoid schizophrenic while he was incarcerated in Arizona. The trial court denied this claim on the basis that there was no information contained in the record showing that such a diagnosis had ever existed. We agree with this ruling, as we can find no proffer of the Arizona records, either in the abstract or the record on appeal. As stated in the previous point, this court will not go outside the record to determine issues on appeal. Martin, 337 Ark. 451, 989 S.W.2d 908; Edwards, 321 Ark. 610, 906 S.W.2d 310.

In any event, Appellant has failed to show how counsel’s failure to secure the records prejudiced his trial. Indeed, Appellant merely asserted in his petition that had counsel obtained the Arizona records, he would have been able to secure funds to hire an independent psychiatrist to evaluate his mental state. This is a moot point, as the record clearly reflects that when the trial court denied such funds, trial counsel used his own money to secure an independent examination of Appellant. Furthermore, this court affirmed the trial court’s denial of such funds on the ground that Appellant “got the benefit of the assistance he sought through appointed counsel’s generosity and sense of professional obligation.” Coulter, 304 Ark. 527, 541, 804 S.W.2d 348, 356. Accordingly, Appellant has failed to demonstrate that he was prejudiced by counsel’s failure to obtain his Arizona prison records. We thus affirm the trial court’s denial of relief on this point.

IV Miscellaneous Claims

We summarily affirm the remaining four points, as they were previously raised by Appellant in his direct appeal and were rejected by this court. We agree with the trial court that Rule' 37 does not provide an opportunity to reargue points that were settled on direct appeal. See, e.g., Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1999) (per curiam); Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996); Dunham v. State, 315 Ark. 580, 868 S.W.2d 496 (1994). We note, however, that one aspect of Appellant’s third argument was not raised or considered in his direct appeal and thus must be addressed in this appeal.

Particularly, Appellant argues that the aggravating circumstance submitted at trial was invalid because it elevated the requisite mental state for the crime alleged. He claims that because he was convicted of causing the child’s death under circumstances manifesting extreme indifference to the value of human life, it was error for the State to assert in the penalty phase that the murder was committed for a purpose, namely to avoid arrest. He argues further that counsel was ineffective for failing to argue this issue.

The record reflects that the jury convicted Appellant of capital felony murder on the basis that he killed the child during the course of and in furtherance of raping her, under circumstances manifesting extreme indifference to the value of human life. See Ark. Code Ann. § 5-10-101 (a)(1) (Repl. 1997). During the penalty phase, the jury found the aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing arrest. See Ark. Code Ann. § 5-4-604(5) (Repl. 1997). The crux of Appellant’s argument is that the term “purpose,” as used in the aggravating circumstance, is inconsistent with the phrase “under circumstances manifesting extreme indifference to the value of human life.” We disagree. This court has consistently defined that phrase as requiring proof of deliberate conduct on the part of the perpetrator that culminates in the death of a person. See Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). The requirement of deliberate conduct is consistent with the jury’s conclusion in this case that the decision to kill the child, after raping her, was motivated by Appellant’s desire or purpose to avoid arrest. Accordingly, we reject Appellant’s argument on this point, and we affirm the trial court’s denial of relief.

Affirmed.

       It is not clear from Dr. Martin’s testimony when the rape occurred or whom was the perpetrator.


source: Caselaw Access Project

author: Robert L. Brown, Justice, TOM Glaze, Justice,

license: Public Domain

text:
    Shirley ALLRED, Edward Ham, and Gary Bunch v. Bill McLOUD, Larry Easterling, and Omer Fowler
    00-480
    31 S.W.3d 836
    Supreme Court of Arkansas
    Opinion delivered November 30, 2000

      Marshall N. Carlisle, for appellants.

      Terry D. Jones, Prosecuting Att’y, Fourth Judicial Dist., for appellees.
   Robert L. Brown, Justice,

Appellants Shirley Allred, Edward Ham, and Gary Bunch appeal from an order of the circuit court declaring that a Madison County initiative fixing term limits for county officials is lawful and valid. They raise three points on appeal: (1) that the term-limit initiative violates the Arkansas Constitution and state statutes; (2) that the. initiative is retroactive in effect and, therefore, is invalid; and (3) that no parts of the initiative can be severed and enforced, if the c.ourt finds that some of the provisions are invalid. We hold that. the initiative violates Amendment 7 to the Arkansas Constitution because it is contrary to the general laws of this state. Accordingly, we reverse and remand.

On November 3, 1998, the voters of Madison County enacted a local initiative which dealt with its county officials. The initiative read:

Be it enacted by the people of Madison County, State of Arkansas: The terms served by elected officials for the offices of County Judge, Sheriff, Assessor, County Collector, Treasurer, Circuit Clerk, Coroner and Justice of the Peace shall be limited to five (5), two-year terms; and declaring that when a person’s service in any office equals or exceeds five (5) two-year terms, including terms served prior to the passage of this measure, such persons shall not be eligible to have his or her name appear on the general election ballot of the County for that office. This measure shall become effective in the first election after its enactment and all subsequent elections.

On September 1, 1999, appellants Shirley Allred, who was in her seventh term as Madison County Circuit Clerk; Edward Ham, who was in his tenth term as Madison County Assessor; and Gary Bunch, who was a former justice of the peace of Madison County and who had served six two-year .terms, sued the appellees, Bill McLoud, Larry Easterling, and Omer Fowler, who were members of the Madison County Election Commission, to invalidate the initiative. Specifically, the appellants sought a declaratory judgment that the initiative violated the Arkansas and United States Constitutions and was void. The petition further prayed that the circuit court place the names of the appellants and “any other candidate similarly situated” on the ballot for the general election in the year 2000.

The appellants moved for summary judgment, and on March 23, 2000, the circuit court denied the appellants’ motion and issued its order upholding the validity of the initiative. In that order, the circuit court found:

I.
That on November 3, 1998, at a general election held in Madison County, Arkansas, the voters passed an initiative petition establishing term limits for Madison County officials.
II.
That all parties agree that there is no genuine issue of material fact involved herein.
III.
The initiative petition establishing term limits for the offices of County Judge, Sheriff, Assessor, County Collector, Treasurer, Circuit Clerk, Coroner, and Justice of the Peace is lawful and valid.
IV
That the term limit provisions of the petition do not require any additional qualifications for office holders, but only determine the length of time the officials can hold office.
V.
That the initiative petition clearly states that its provisions apply to current office holders in that the time served by present office holders is to apply to the limit of five (5) two year terms.

It is from this order that appellants have appealed.

We first address the issue of mootness. It is obvious that the first General Election after the initiative, which occurred on November 7, 2000, has come and gone. Thus, we must consider whether the issues raised in this appeal are moot. We believe that they are not. The Madison County initiative, by its terms, has continuous effect for successive elections and will affect county officials in the future who fall into the “five two-year terms” category. In addition, we consider this issue affecting ballot eligibility to be one of public importance which is likely to recur. Under such circumstances, we will address the issues raised on the merits. Jen kins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998) (we addressed the issue of the residency of a candidate for the state legislature, though the election had already been held).

The first claim mounted by the appellants is that the initiative violates the Arkansas Constitution and our statutes. The appellants enumerate several provisions of the constitution and statutory law that, they contend, set forth what is required of candidates seeking these county offices. Those provisions establishing eligibility are:

• Arkansas Constitution, art. 7, § 29 — the county judge is elected by the qualified electors of the county for a two-year term and shall be at least 25 years of age, a United States citizen, and of upright character with a good business education and a resident of the state for two years before the election and a resident of the county.
• Arkansas Constitution, art. 7, § 41 —justice of the peace shall be a qualified elector and a resident of the township.
• Arkansas Constitution, art. 19, § 3 — no person shall be elected who does not possess the qualifications of an elector.
Ark. Code Ann. § 7-7-101 (Repl. 2000) — only the names of certified nominees shall be on the ballot for general elections.
Ark. Code Ann. § 7-5-207 (Repl. 2000) — no person’s name shall be printed as a candidate for public office unless that person is qualified and eligible to hold office.
Ark. Code Ann. § 14-14-1301 (Repl. 1998) — reiterates state constitutional requirements for eligibility to be a county judge or justice of the peace and sets forth the duties of the circuit clerk, county clerk, assessor, collector, treasurer, sheriff, and coroner.

The appellants assert that because the provisions of the Arkansas Constitution and state statutes fix the general laws concerning eligibility for the county offices involved, the initiative is local legislation which conflicts with and runs counter to the general law of this state. As such, the initiative violates the provision in Amendment 7 to the Arkansas Constitution which states that “no local legislation shall be enacted contrary to the Constitution or any general law of the State....”

We agree that the Madison County initiative is at odds with the general law of this state. This is clearly the case with respect to the county judge and justice of the peace where specific qualifications for those offices are listed in both the Arkansas Constitution and § 14-14-1301. On that point, this court has specifically held that a legislative act requiring that a county judge be an attorney who has practiced law for three years was void. See Mississippi County v. Green, 200 Ark. 204, 138 S.W.2d 377 (1940). In Green, we said:

[ T]he act is void in so far as it imposes such qualifications upon a person in order to be a county judge in Mississippi county. The qualifications fixed by the constitution to be county judge in this state infefentially prohibits the legislature from fixing additional qualifications.

200 Ark. at 206-07, 138 S.W.2d at 379.

And with' respect to the other county offices, our laws specifically provide that candidates for those offices must possess the qualifications of electors. Those people holding the qualifications of an elector, or qualified electors, must be registered pursuant to Amendment 51 of the Arkansas Constitution. Ark. Code Ann. § 7-1-101(20) (Repl. 2000). Plus, an elector is defined as a person who is eligible to vote in the county in which he resides on the date thirty-one calendar days before the election. Ark. Code Ann. § 7-5-201 (a) (Repl. 2000). There are no other general eligibility requirements for these offices specified in the general law of this state. The Madison County initiative, however, adds the requirement that for a candidate for county office to be eligible, he or she must not only be a qualified elector as required by law but also must not have served five two-year terms. Adding a new qualification for candidacy runs counter to the principle laid down by this court in Mississippi County v. Green, supra.

In defending the initiative, the members of the County Board of Election Commissioners direct this court’s attention to Amendment 55, § 2, to the Arkansas Constitution and specifically to this language:

(b) The Quorum Court may create, consolidate, separate, revise, or abandon any elective county office or offices except during the term thereof; provided, however, that a majority of those voting on the question at a general election have approved said action.

According to the commissioners, if the quorum court has the authority to abolish or revise county offices, why should the people of the county not also have the corollary authority to limit those candidates who can stand for election to those offices? It, therefore, falls to this court to interpret § 2(b) of Amendment 55. In interpreting the language of a provision of the Arkansas Constitution, we have said that we endeavor to effectuate as nearly as possible the intent of the people in passing the measure. S.W. Ark. Communications, Inc. v. Arrington, 296 Ark. 141, 753 S.W.2d 267 (1988). We have also adopted the rule of construction in connection with interpreting provisions of our State Constitution that we give language its plain and ordinary meaning. Foster v. Jefferson County Quorum Court, 321 Ark. 105, 906 S.W.2d 314, opinion on granting rehearing 321 Ark. 116-A, 901 S.W.2d 809 (1995).

The thrust of § 2(b) of Amendment 55 and the Madison County initiative are easily distinguishable in the eyes of this court. Section 2(b) deals with the creation, revision, and abandonment of county offices and authorizes the restructuring of county government. The initiative, on the other hand, deals with people who desire to stand as candidates for election to county offices, not with the offices themselves. Amendment 55 is in no way concerned with limiting candidate eligibility. We, therefore, reject the Amendment 55 argument.

We conclude that the Madison County initiative violates the proscription set forth in Amendment 7 to the Arkansas Constitution in that it is local legislation that conflicts with the general law of this state. We reverse the order of the circuit court and remand this matter for entry of an order consistent with this opinion.

Reversed and remanded.

Glaze and Smith, JJ„ dissent.

TOM Glaze, Justice,

dissenting. This court has no record (or the necessary parties) upon which it can decide this case, nor did the parties pursue the correct proceeding to obtain the relief they sought in this case. Contrary to case law, it has simply reached out to offer a declaratory decision even though the parties failed to join the proper parties or to preserve the legal issues they want decided.

On September 1, 1999, county officials Allred, Ham, and Bunch filed a petition for declaratory judgment and mandamus requesting the circuit court to compel the respondent Madison County Election Commission to place the petitioners’ names on the general-election ballot in the year 2000. As a part of the relief sought by petitioners, they asked the circuit court to declare unconstitutional a county initiative measure — passed by Madison County voters on November 3, 1998. That measure provided that county officials are ineligible to have their names placed on the 2000 general election ballot if their service in office had already exceeded the limited terms of office required under the new county measure passed in 1998.

. On March 23, 2000, the circuit court ruled in favor of the respondent, Madison County Election Commission, and declared the 1998 county measure lawful and valid; however, it did not order the petitioners’ names removed from the ballots in the 2000 general election. Nor did the court make any reference to the 2000 party-primary ballots. Other than the petitioners’ notice of appeal filed on March 28, 2000, nothing appears in the record showing what happened in either the primary election or the November 7, 2000, election. In fact, the record merely reflects that the petitioners filed their appellate brief with this court on June 12, 2000, the respondent filed its brief on July 11, 2000, but no one offered to supplement the record or to request this election case on appeal be accelerated so a complete record could be presented and a proper decision could be made. It is mere conjecture as to what has occurred in this case since the trial court’s March 23, 2000, order, nonetheless, the majority has chosen to forge ahead to issue a declaration of law in this election case. I am unaware of any appeal decided by this court where this court knew so little about what had transpired in a case (much less an election case), but the court still opts to decide the appeal.

As this court held in State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989), an action for mandamus and declaratory relief is the proper method of enforcing the right set out in Ark. Code Ann. § 7-5-207(b), which prohibits the inclusion of an ineligible candidate on an election ballot. See also Standridge v. Priest, 334 Ark. 568, 976 S.W.2d 388 (1998) (citing the Craighead County case as establishing the proper legal proceeding to file to determine the eligibility of a candidate and to decide whether his or her name should be placed on or removed from a ballot). In the present case, the circuit court issued no mandamus removing the petitioners’ names from the election ballot, primary or general; once again, this court has no information showing if petitioners’ names appeared on those ballots.

In the Craighead County case, the court further held that, when a mandamus action is brought in an election case to determine a candidate’s eligibility and right to have his or her name on the ballot, courts must see that all necessary parties are joined under Ark. R. Civ. P. 19. As already noted above, no primary election officials, such as the Madison County Democratic or Republican Committee, were made parties, nor were those officials who are statutorily authorized to certify the names of party nominees or general election candidates made parties to this litigation. See Ark. Code Ann. § 7-7-203 (b)(2). The Arkansas Election Code requires that all political party nominees in special or general elections be selected first at a primary election and then be certified. Lewis v. State, 318 Ark. 334, 885 S.W.2d 663 (1994). Because the provisions of elections are only mandatory if enforcement is sought before the election, the necessary parties, including the respondent Madison County Election Commission, should have sought their relief before the 2000 primary and general elections. Although the petitioners initially filed a proper complaint, the parties simply abandoned that procedure as prescribed in our Craighead County case and its progeny.

The record fails to show that the respondent ever requested the court to order the petitioners’ names be omitted from the primary or general election ballots, and it is clearly too late to request a decision to that effect now. This court’s decision to give an advisory opinion on petitioners’ eligibility and right to have their names placed on the 2000 primary and election ballots not only is moot at this time, but also the parties failed to pursue the proper proceeding to obtain the relief sought. The majority court’s decision to proceed in this matter is clearly inconsistent with Arkansas’s established law on the subject. This court’s decision to go forward in this important election case without a complete record will only serve to introduce confusion in ballot name-eligibility cases in the future.

Smith, J., joins.

       While it is unclear from the record before this court, the petitioners’ names, I assume, were left on the required ballots; likely, they were elected. Nevertheless, the proper legal proceeding to challenge the officials’ eligibility to take and hold the office for which she or he ran appears to be one of usurpation of office. See Looper v. Thrush, 334 Ark. 212, 972 S.W.2d 250 (1998).


author: PER CURIAM.

text:
    David GIPSON v. STATE of Arkansas
    CR 00-1246
    31 S.W.3d 834
    Supreme Court of Arkansas
    Opinion delivered November 30, 2000

      Rush, Rush & Cook, by: J.F. Atkinson, Jr., for appellant.
    No response.
   PER CURIAM.

Appellant David Gipson, by his attorney, J.F. Atkinson, Jr., has filed a motion for rule on the clerk. On March 8, 2000, the Sebastian County Circuit Court entered an amended order denying appellant’s petition for postconviction relief. On appellant’s behalf, Mr. Atkinson filed a timely notice of appeal on April 7, 2000. However, the record was not tendered until October 27, 2000. Mr. Atkinson admits in the instant motion that, as counsel of record, 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). Accordingly, we grant the motion for rule on the clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id.

Mr. Atkinson has also filed a motion to withdraw as appellant’s counsel. On April 17, 2000, he filed a similar motion with the circuit court. Although the trial court granted the motion on April 20, 2000, and ordered the appointment of Daniel A. Stewart as substitute counsel, it properly vacated those orders on October 11, 2000, because it lacked jurisdiction to enter the orders in light of the pending appeal. After the notice of appeal has been filed, this court has exclusive jurisdiction to relieve counsel and appoint new counsel. Ark. R. App. P. — Crim. 16 (2000).

Rule 16 of the Rules of Appellate Procedure — Criminal provides that:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the Supreme Court shall have exclusive jurisdiction to relieve counsel and appoint new counsel.

Notably, we have held that Rule 16 applies to postconviction appeals as well as direct appeals from judgments of conviction. Thomas v. State, 335 Ark. 262, 264, 983 S.W.2d 122, 123 (1998) (citing Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989)).

Pursuant to Ark. R. Sup. Ct. 4-3(j)(l) (2000), an attorney for a criminal defendant seeking to withdraw after the notice of appeal has been filed must file a motion to be relieved, containing a statement of the reasons for the request to withdraw, and must mail a copy of the motion to the defendant. In support of his motion, Mr. Atkinson explains that his continued representation of appellant creates a conflict of interest arising from his representation of appellant and members of appellant’s family in other pending civil and criminal lawsuits. Moreover, Mr. Atkinson states that appellant intends to call him as a witness at trial. According to the certificate of service, he forwarded a copy of the motion to appellant by first-class mail. We find that Mr. Atkinson has complied with the requirements to withdraw as counsel of record.

However, we decline to appoint new counsel at this time. The United States Supreme Court has held that there is no constitutional right to an attorney in state postconviction proceedings. O’Brien v. State, 339 Ark. 138, 139-140, 3 S.W.3d 332, 333 (1999) (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991); McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997). Similarly, this court has held that the right to counsel ends in Arkansas after the direct appeal of the original criminal trial is completed, and the State is not obligated to provide counsel in postconviction proceedings. Id. (citing Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986) (per curiam)). We reasoned that because a postconviction proceeding is civil in nature, there is no constitutional right to appointment of counsel. Id.

In light of the foregoing, we grant J.F. Atkinson, Jr.’s motion to withdraw as appellant’s counsel. Should appellant wish to retain new counsel, he must file an appropriate motion with this court. Likewise, Daniel A. Stewart, who tendered the record on appellant’s behalf, must file an entry of appearance with this court should he desire to remain Gipson’s appellate counsel.


text:
    Carroll Eugene SPILLERS v. STATE of Arkansas
    CR 00-616
    31 S.W.3d 433
    Supreme Court of Arkansas
    Opinion delivered November 30, 2000

      The Jesse Law Firm. P.L.C., by: Mark Alan Jesse, for appellant.
    No response.
   PER CURIAM.

On May 24, 2000, appellant Carl Eugene Spillers filed a motion for belated appeal and evidentiary hearing. He based his motion on the duty of trial counsel, Steven Risher, to file his appeal. We remanded to the Pulaski County Circuit Court for an evidentiary hearing on whether Spillers informed counsel of his desire to appeal. Spillers v. State, 341 Ark. 749, 19 S.W.3d 35 (2000). On August 18, 2000, a hearing was held before the circuit court. On October 30, 2000, the circuit court entered an order in which it found that Spillers. had indeed advised his attorney in timely fashion that he .wanted to appeal, but his counsel did not pursue the appeal because he believed there was no basis for it. The circuit court further found that Mr. Risher had-not withdrawn as counsel in this matter.

Spillers’s motion for belated appeal is now before us once again. We hold that Spillers has established good cause to grant the motion. See Ark. R. App. P. — Crim. 2(e). We further hold that Mr. Risher, as trial counsel, shall continue to represent Spillers throughout this appeal, unless permitted to withdraw. See Ark. R. App. P.— Crim. 16.

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


author: TOM Glaze, Justice. ANNABELLE Clinton Imber, Justice,

text:
    ARKANSAS PUBLIC DEFENDER COMMISSION v. GREENE COUNTY CIRCUIT COURT, The Honorable John N. Fogleman, Circuit Judge, Presiding
    CR 00-452
    32 S.W.3d 470
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000

      Mark Pryor, Att’y Gen., by: Dennis R. Hansen, Ass’t Att’y Gen., for petitioner.

      Gill, Elrod, Ragon, Owen, Skinner, & Sherman, P.A., by: Drake Mann, for respondent.
   TOM Glaze, Justice.

The Arkansas Public Defender Commission petitions this court for a writ of certiorari to Greene County Circuit Judge John Fogleman, directing him to set aside an order entered March 15, 2000, requiring the Commission to pay the attorney’s fees for appointed counsel representing a prisoner in his postconviction proceedings under Ark. R. Crim. P. 37. For the reasons set out below, we grant the Commission’s petition.

The facts leading up to this situation are as follows. William Wesley Skiver was convicted of aggravated robbery on September 29, 1995, and sentenced to life in prison as a habitual offender. The conviction and sentence were affirmed by this court in Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Skiver then filed a pro se petition for postconviction relief; subsequently, on April 10, 1999, Judge Fogleman appointed Paragould attorney Daniel Stidham to represent Skiver in his Rule 37 proceedings. Stidham filed an amended petition for postconviction relief and appeared at a hearing on Skiver’s behalf, but the trial court rejected the claim of ineffective assistance of counsel on September 20, 1999. Stidham filed a notice of appeal from this decision on November 16, 1999.

On December 2, Stidham filed with the circuit court a petition for an award of attorney’s fees, asking that the court award him $4,715.00 for his representation of Skiver. On December 7, 1999, the court entered an order directing the Arkansas Public Defender Commission to pay Stidham the requested $4,715; however, the Commission was never served with a copy of the petition for attorney’s fees. On December 30, Stidham filed a petition for citation of contempt, alleging that the Commission had violated the court’s order by not paying his fee. Fie asked Judge Fogleman to issue an order for the Commission and its Executive Director, Didi Sailings, to show cause why they should not be held in contempt.

The Commission filed a response to the court’s order on January 11, 2000, in which it asserted that there was no statutory authority supporting the Commission’s payment of attorney’s fees in a Rule 37 petition. The Commission further rejoined that sovereign immunity barred the court from ordering it to bear the financial burden inherent in the payment of attorney’s fees. On January 14, 2000, the Commission filed a motion to set aside the circuit court’s December 7 order, which the court set aside on January 21, 2000.

Stidham filed another request for fees on January 31, 2000, specifically alleging that the Commission was responsible for the payment of his fees. He premised his second request on Ark. Code Ann. § 16-87-210(a) (Supp. 1999) which provides that when private attorneys are appointed to represent an indigent person and authorized by the Commission, the attorneys “shall” be paid by the Commission. The Commission responded once again that it was not liable for Stidham’s fees. It cited Arkansas Public Defender Commission v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000), for the proposition that the Commission is not authorized by statute or constitution to make payment for attorney’s fees in civil cases (emphasis added). The circuit court nevertheless entered an order on March 15, 2000, finding that, despite the holding of Burnett, the Commission should be responsible for Stidham’s fees.

The Commission filed a petition for writ of certiorari with this court on April 14, 2000, contending that the circuit court acted wholly without jurisdiction in entering the March 15 order because sovereign immunity, which neither the Commission nor the General Assembly had waived, precluded the imposition of such an order. This court directed both parties to file briefs on the issue, which was done on August 4, 2000.

A writ of certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy and is available to this court in exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). A demonstration of plain, manifest, clear, and gross abuse of discretion is essential before this court will grant a petition for writ of certiorari. Meeks v. State, 341 Ark. 620, 19 S.W.3d 25 (2000) (citing Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994)). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Arkansas Public Defender Commission v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000); Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998).

The circuit court’s alleged lack of jurisdiction to order attorney’s fees is precisely what the Commission is arguing in this case. The Commission raises the defense of sovereign immunity, which is jurisdictional immunity from suit. Brown v. Arkansas State HVACR Licensing Board, 336 Ark. 34, 984 S.W.2d 402 (1999). Where the pleadings show that the action is one against the State, and sovereign immunity is not waived, the trial court acquires no jurisdiction. See State v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996). Where a suit is brought against an agency of the State with relation to some matter in which the agency represents the state in action and liability, and the State, though not a party of record, is the real party in interest so that a judgment for the plaintiff would operate to control the action of the State or subject the State to liability, the action is, in effect, one against the State and is prohibited by the constitutional bar. Burnett, 340 Ark. at 237, 12 S.W.3d at 193.

We have also held that tapping the State’s treasury for payment of damages will render the State a defendant and violate the principles of sovereign immunity. Id. Unless sovereign immunity is waived, the doctrine prohibits imposing liability upon the State. Id. We have recognized two exceptions to the doctrine of sovereign immunity: 1) where the State is the moving party seeking specific relief; and 2) where an act of the legislature has created a specific waiver of immunity. Id. Clearly, the order that Stidham’s attorney’s fees be paid by the Commission is an act that will tap the State’s treasury. Thus, the question presented by this case relates to the second of the exceptions just mentioned: Has the General Assembly created a specific waiver of immunity for the Public Defender Commission that would enable the circuit court to order the Commission to pay attorney’s fees for appointed counsel in a civil matter? The answer is no.

We explicitly held in the Burnett case that the Commission is not responsible for attorney’s fees in civil matters. There, we made the following statements:

The duties of the Commission in Ark. Code Ann. § 16-87-306 (Supp. 1999) are stated as follows:

The public defender in each judicial district shall have the following duties:
(1) Defend indigents within the district as determined by the circuit, municipal, city, police, juvenile, probate, or chancery courts in the district in all felony, misdemeanor, juvenile, guardianship, and mental health cases, all traffic cases punishable by incarceration, and all contempt proceedings punishable by incarceration^]
There is no declaration of legislative intent to waive the Commission’s sovereign immunity, nor is there any requirement that the Commission have responsibility for attorney’s fees in civil cases.

Burnett, 340 Ark. at 238, 12 S.W.3d at 194 (emphasis added).

Despite the holding in Burnett, the circuit court in the instant case determined that the Commission should be responsible for attorney’s fees in this Rule 37 proceeding. The court’s reasons for doing so were because “the Rule 37 petition is, without a doubt, a proceeding related to the underlying felony charge. . . . Rule 37 is a part of the Rules of Criminal Procedure, [and] this Rule 37 petition was not filed in a separate civil case but is filed as a part of the criminal case as is evident by its case number of CR-95-108.” In addition, the trial court concluded that, because the statutes delineating the duties of the Commission provide that public defenders shall represent indigent persons “in felony case,” Rule 37 proceedings should be considered criminal, and the Commission should therefore be required to pay the fees of an attorney appointed to represent a Rule 37 petitioner. On appeal, the circuit court continues this argument, and contends that this court has merely “parroted the phrase” that Rule 37 proceedings are civil in nature without adequately explaining why that is the case. The circuit judge’s analysis simply ignores our case law and that of the United States Supreme Court on this subject.

First, we point out the recognized principle that a post-conviction proceeding under Rule 37 amounts to a collateral attack on the judgment rendered at trial. Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996). As a postconviction remedy, Rule 37 does not provide a method for the review of mere error in the conduct of the trial, nor does it serve as a substitute for appeal. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). We have repeatedly held that such proceedings are civil in nature. This holding has been announced most often in the context of a convicted defendant’s request for appointed counsel for his or her Rule 37 proceedings; we have rejected such requests by noting that, because such proceedings “are civil rather than criminal in nature, there is clearly no constitutional right to appointment of counsel to prepare a petition under Rule 37.” Fretwell v. State, 290 Ark. 221, 222, 718 S.W.2d 109 (1986). See also Martin v. State, 340 Ark. 719, 13 S.W.3d 576 (2000); O’Brien v. State, 339 Ark. 138, 3 S.W.3d 332 (1999); State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999) (allowing State to appeal from Rule 37 petition pursuant to Ark. R. App. P. — Civ. 2(a)(3) specifically because Rule 37 proceedings are civil in nature); McCuen v. State, 328 Ark. 46, 941 S.W.2d 297 (1997) (right to counsel in Arkansas ends, after the direct appeal of the original criminal trial is completed, and the State is not obligated to provide counsel in postconviction proceedings); Cravey v. State, 306 Ark. 815 S.W.2d 933 (1991); Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990); Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1990); Vick v. State, 301 Ark. 296, 783 S.W.2d 365 (1990); Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988); Dyer v. State, 258 Ark. 494, 527 S.W.2d 622 (1975).

The basis for our holding that postconviction proceedings are civil in nature can be found in the decisions of the United States Supreme Court. In Pennsylvania v. Finley, 481 U.S. 556 (1986), the Court considered whether an inmate was entitled, under state law, to appointed counsel in postconviction proceedings. The Court, stating the following, ultimately held that no such entitlement existed:

We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions .... Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. . . . We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process. . . . Postconviction relief is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself and it is in fact considered to be civil in nature. ... It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the States supply a lawyer as well.

Finley, 481 U.S. at 555-57 (emphasis added; internal citations omitted).

Likewise, the Court held in Murray v. Giarratano, 492 U.S. 1 (1988), that “[s]tate collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings and serve a different and more limited purpose than either the trial or appeal.” Murray, 492 U.S. at 10. The concurring opinion in Murray stated that “there is nothing in the Constitution or the precedents of this Court that requires that a State provide counsel in postconviction proceedings. A postconviction proceeding is not part of the criminal process itself, but is instead a civil action designed to overturn a presumptively valid criminal judgment.” Murray, 492 U.S. at 13 (O’Connor, J., concurring) (emphasis added).

In addition to our longstanding pronouncements that Rule 37 proceedings are civil in nature, there is the fact that it is the petitioner — the former defendant — who bears the burden of proof in Rule 37 matters. See Seek v. State, 330 Ark. 833, 957 S.W.2d 709 (1997); Helton v. State, 325 Ark. 140, 924 S.W.2d (1996). Were Rule 37 proceedings truly criminal matters, the due process clause of the United States Constitution would require that the state bear the burden of proof. See, e.g., Mullaney v. Wilbur, 421 U.S. 684 (1975) (holding that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged); see also In re Winship, 397 U.S. 358 (1970).

Thus, it is abundantly clear that postconviction proceedings are civil matters, distinct and apart from the underlying criminal conviction. As civil matters, these proceedings are not among the functions of the Public Defender Commission, enumerated by Ark. Code Ann. § 16-87-306, for which the Commission is obligated to pay. As noted above, this court explicitly held in Burnett that there is no requirement that the Commission have responsibility for attorney’s fees in civil cases. Because there is no statute authorizing the Commission to pay attorney’s fees in a civil matter, the trial judge was without authority to enter an order commanding it to do so.

As a final matter, we note that Stidham urges that his appointment without compensation violates his due process and equal protection rights. However, he raises this point without discussing it, providing only a bare citation to authority. This court has repeatedly held that we do not consider assignments of error that are unsupported by convincing authority. See, e.g., Federal Fin. Co. v. Noe, 335 Ark. 78, 983 S.W.2d 107 (1998); McGhee v. State 334 Ark. 543, 975 S.W.2d 834 (1998).

We also point out that Stidham is not completely bereft of remedies; he may present his claim for payment to the Arkansas State Claims Commission, which was created to provide a method by which claims against the State may be addressed while preserving the State’s sovereign immunity. See Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990).

We therefore conclude that the circuit court acted in excess of its jurisdiction in entering its order requiring the Commission to pay attorney’s fees to Stidham, and as such, the Commission’s petition for writ of certiorari is granted.

IMBER, J., concurs; Corbin, J., not participating.

ANNABELLE Clinton Imber, Justice,

concurring. I join the majority opinion in concluding that the circuit court acted in excess of its jurisdiction in entering its order requiring the Commission to pay attorney’s fees to Mr. Stidham. It is abundantly clear from statutory provisions governing the Arkansas Public Defender Commission that the Arkansas General Assembly has created a specific waiver of immunity solely for the payment of attorney’s fees for appointed counsel who defend indigents in cases punishable by incarceration. See Ark. Code Ann. § 16-87-212(a)(l) (“The Commission is authorized to pay for certain expenses regarding the defense of indigents.”); Ark. Code Ann. § 16-87-213(a)(1)(A) (“Any person charged with an offense punishable by imprisonment who desires to be represented by an appointed attorney ...”); Ark. Code Ann. § 16-87-306 (“The public defender ... shall ... [d]efend indigents ... in all felony, misdemeanor, juvenile, guardianship, and mental health cases, all traffic cases punishable by incarceration, and all contempt proceedings punishable by incarceration.”).

In postconviction proceedings under Ark. R. Crim. P. 37, the petitioner’s appointed attorney is no longer representing an indigent person “charged with an offense punishable by imprisonment.” The petitioner ■— the former defendant — has already been convicted and sentenced to a term of imprisonment. Furthermore, by filing a petition for postconviction relief, which amounts to a collateral attack upon the judgment of conviction, the petitioner has assumed the burden of proving any claims asserted under Rule 37. Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996); Flaherty v. State, 297 Ark. 198, 761 S.W.2d 167 (1988). Thus, petitioner’s appointed attorney in a Rule 37 proceeding is no longer defending an indigent in a case “punishable by incarceration,” but is instead representing an indigent petitioner who bears the burden of proving the claims under Rule 37.

For these reasons, I conclude that the General Assembly has not created a specific waiver of immunity for the Public Defender Commission that would enable a circuit court to order the Commission to pay attorney’s fees for appointed counsel who represent indigents in the pursuit of postconviction relief.

       We note also that the Commission, although not a party to the underlying Rule 37 proceeding, could have appealed from the circuit court’s order. Arkansas case law provides that a person with a pecuniary interest affected by a trial court’s judgment has standing to pursue appellate review of that judgment or order, even though the person was never made a party to the case. McCoy v. Moore, 338 Ark. 740, 1 S.W.3d 11 (1999); see also In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999); In re Allen, 304 Ark. 222, 800 S.W.2d 715 (1990). In this case, our court has jurisdiction by way of certiorari, as the court did in the Burnett decision, or by treating this matter as an appeal.

       Sovereign immunity for the State of Arkansas arises from express constitutional declaration. Article 5, § 20, of the Constitution provides that “[t]he State of Arkansas shall never be made a defendant in any of her courts.” Suits against the State are expressly forbidden by this provision. Grine v. Board of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999). Grine
        cites Pitcock v. State, 91 Ark. 527 (1909), for the statement that “a sovereign State cannot be sued except by its own consent; and such consent is expressly withheld by the Constitution of this State.” Grine, 338 Ark. at 796 (citing Pitcock, 91 Ark. at 535).


author: DONALD L. Corbin, Justice.

text:
    K.S. v. STATE of Arkansas
    00-553
    31 S.W.3d 849
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000

      Stephen D. Ralph, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellant K.S., a minor, appeals the order of the Faulkner County Chancery Court, Juvenile Division, convicting her of a misdemeanor count of shoplifting and imposing a suspended sentence and twelve months’ probation. For reversal, Appellant argues that the trial court erred in refusing to dismiss the charge against her because she had been subjected to multiple punishments for the same offense, in violation of the Double Jeopardy Clause. This case was transferred to us from the Arkansas Court of Appeals as involving an issue of first impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and (d). We affirm.

The record reflects that on or about August 17, 1999, Appellant was arrested for shoplifting goods valued at approximately $64.98 from a Wal-Mart retail store. Prior to Appellant’s juvenile-intake hearing, Wal-Mart contacted Appellant's father and demanded that he pay a $100 civil penalty, as authorized under Ark. Code Ann. § 16-122-102 (Supp. 1999). Appellant’s father testified at the juvenile-intake hearing that Wal-Mart had threatened to take him to court if the money was not paid, even though the goods stolen by Appellant were returned to the store. On September 27, 2000, Appellant’s father sent a $100 money order to Wal-Mart in compliance with its written demand letter.

Appellant’s juvenile-intake hearing took place on November 9, 1999. Appellant argued that the civil penalty imposed by WalMart was punitive in nature because the fine went beyond the purpose of making the retailer whole, and instead put them in a better position than if the theft had not occurred. The chancellor found that the statute authorizing the civil penalty was unconstitutional on its face, and she ordered Wal-Mart to return the $100 to Appellant’s father. The chancellor then denied Appellant’s motion to dismiss, ruling that there was no double-jeopardy violation. This appeal followed.

Appellant’s sole argument on appeal is that her conviction and subsequent sentence for shoplifting violated the Double Jeopardy Clause because she had already been subjected to a civil penalty that should be regarded as a “criminal forfeiture.” Appellant’s argument is without merit. The trial court ruled that section 16-122-102 was unconstitutional, and ordered Wal-Mart to return the $100 paid by Appellant’s father. Neither party appeals the trial court’s finding that the statute was unconstitutional. As a result, the law of the case is that the statute is unconstitutional, and Appellant may not be subjected to the civil penalty imposed under section 16-122-102. See Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994). If, however, future parties properly raise and address the issue of the statute’s constitutionality, this court may consider the merits of such an argument.

In light of the fact that Appellant may not be subjected to the civil penalty, her argument on appeal that she faces double jeopardy is moot. A case is moot when any decision rendered by this court will have no practical legal effect on an existing legal controversy. Arkansas State Med. Bd. v. Schoen, 338 Ark. 762, 1 S.W.3d 430 (1999); Biedenharn v. Hogue, 338 Ark. 660, 1 S.W.3d 424 (1999); Quinn v. Webb Wheel Prods., 334 Ark. 573, 976 S.W.2d 386 (1998). This court does not decide cases that are moot, or render advisory opinions, or answer academic questions. See Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). Accordingly, we reject Appellant’s argument.

Affirmed.