author: P ER Curiam.

text:
    David NUEHRING v. STATE of Arkansas
    01-1341
    64 S.W.3d 718
    Supreme Court of Arkansas
    Opinion delivered January 17, 2002

      Deborah R. Sailings, Deputy Public Defender, for appellant.
    No response.
   P ER Curiam.

On January 28, 1999, appellant, David Nuehring, pleaded guilty to one count of domestic battery in the third degree, two counts of criminal mischief in the first degree, one count of terroristic threatening in the first degree, and one count of resisting arrest. He was sentenced to five years probation and fined $100.00. Ed Webb represented appellant in this matter.

On August 4, 2000, the State filed a petition seeking to revoke appellant’s probation. On the same day, the State filed a criminal information charging appellant with one count of domestic battery in the first degree, one count of domestic battery in the third degree — second offense, and one count of endangering the welfare of a minor.

On March 20, 2001, a hearing was held to consider the State’s petition for revocation and to address the newly filed criminal information. At that hearing, appellant was represented by Michael Sherwood. On May 9, 2001, a judgment and commitment order was filed, sentencing appellant to 120 months imprisonment. On May 10, 2001, a second judgment and commitment order was filed revoking appellant’s probation and sentencing him to seventy-two months imprisonment. Appellant’s sentences were to run consecutively.

On June 5, 2001, appellant filed a pro se notice of appeal. He also requested that the record be prepared for appeal and that an appeal bond be issued. The record does not reflect that Michael Sherwood was served with copies of these motions. Additionally, the record does not reflect that Mr. Sherwood filed a notice of appeal on appellant’s behalf or that he requested to be relieved as appellant’s attorney.

On July 30, 2001, a hearing was held to consider appellant’s motions. Mr. Sherwood did not appear at this hearing. Appellant informed the trial court that he had contacted Mr. Sherwood about proceeding with an appeal, but that Mr. Sherwood “never got back” to him. Following this information, the trial court appointed the public defender’s office to represent appellant.

On July 31, 2001, the public defender’s office filed a notice of appeal on appellant’s behalf. Because this notice of appeal was untimely, the public defender’s office now requests permission to file a belated appeal. In criminal cases, we have constantly held that a belated appeal may be filed when an attorney admits that an error has been made and accepts responsibility for that error. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

In this case, appellant claims that he informed Mr. Sherwood that he wished to proceed with an appeal but that Mr. Sherwood took no further action. As a result of Mr. Sherwood’s inaction, the trial court appointed new counsel. This appointment came more than thirty days from the date the judgment and commitment orders were filed. Therefore, the newly appointed counsel was unable to perfect a timely appeal on appellant’s behalf. Because the record does not establish Mr. Sherwood’s involvement in appellant’s case after March 20, 2001, we are remanding this case to the trial court to settle the record. Specifically, we are remanding this matter to the trial court for a hearing to determine whether Mr. Sherwood was relieved of his responsibility to represent appellant in this matter, and whether appellant requested that Mr. Sherwood file a notice of appeal on appellant’s behalf. The parties have thirty days from the date of this per curiam to settle these issues.

Appellant’s motion also requests that we determine who is to represent him during his appeal. We decline to rule on this issue until the record is setded.

Remanded.

IMBER, J., not participating.


source: Caselaw Access Project

author: R OBERT L. BROWN, Justice.

license: Public Domain

text:
    Darrell Wayne HILL v. STATE of Arkansas
    CR 00-1210
    65 S.W.3d 408
    Supreme Court of Arkansas
    Opinion delivered January 24, 2002

      Mongomery, Adams & Wyatt, PLLC, by; Dale E. Adams, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   R OBERT L. BROWN, Justice.

Appellant Darrell Wayne Hill was initially convicted in 1980 of the capital felony murder, kidnapping, and aggravated robbery of Donald Lee Teague as well as the attempted capital murder, kidnapping, and aggravated robbery of E. L. Ward. Hill was sentenced to death. This court affirmed in part and reversed in part on appeal. See Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, 459 U.S. 882 (1982) (Hill I). Specifically, we affirmed the conviction and sentence for the capital felony murder of Donald Lee Teague but set aside the offenses of kidnapping and aggravated robbery with respect to Teague. We further affirmed the convictions and sentences for attempted capital felony murder, kidnapping, and aggravated robbery in connection with E. L. Ward.

Hill subsequently petitioned for postconviction relief under our prior Rule 37, and this court denied the petition. See Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983) (Hill IT). Hill then petitioned the United States District Court, Eastern District of Arkansas, for habeas corpus relief, which was granted. See Hill v. Lockhart, 824 F. Supp. 1327 (E.D. Ark. 1993) (Hill III). The federal district court concluded that trial counsel did not render Hill effective assistance of counsel with respect to investigating and presenting an insanity defense during the guilt phase of the trial. The court also concluded that counsel did not render Hill effective assistance of counsel during the penalty phase. The court found, too, that, given Hill’s long history of mental illness, drug and alcohol abuse, and troubled childhood, it was unreasonable for counsel not to offer into evidence the pertinent medical records during the penalty stage. The court further found that it was not reasonable for counsel to fail to thoroughly investigate possible mitigating evidence. See id.

The State appealed, and Hill cross-appealed. The Eighth Circuit Court of Appeals reversed the federal district court with respect to ineffective assistance of counsel at the guilt phase but affirmed the court as to ineffective assistance of counsel during the penalty phase. See Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994) (Hill IV). Accordingly, the Eighth Circuit reinstated Hill’s convictions for murder and attempted murder but vacated the sentences for each and directed the federal district court to order the State to retry the question of the proper penalty relating to those convictions. See id.

Following a resentencing trial, Hill was again sentenced to death, and a notice of appeal was filed. However, on February 27, 1996, Hill filed a pro se “Motion to Stop Appeal Process,” and his counsel filed a motion for evaluation to determine Hill’s capacity to make a knowing and voluntary waiver of his right to appeal. See Hill v. State, 323 Ark. 796, 917 S.W.2d 537 (1996) (per curiam) (Hill V). This court remanded the matter to the trial court to make findings on whether Hill had the mental competency to abandon his appeal. See id.

Ultimately, this court declined to honor Hill’s request to waive his appeal. See Hill v. State, 327 Ark. 777, 940 S.W.2d 487 (1997) (per curiam) (Hill VI). Hill’s sentence was later affirmed by this court in Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998) (Hill VII), cert. denied, 525 U.S. 860 (1998). On January 28, 1999, Hill filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.5 and later filed an amended petition on August 16, 1999. Following a hearing, Hill’s petition was denied by the trial court.

I. Rule 610

Hill first argues that his trial counsel was ineffective at resentencing for failing to object properly to, and then for failing to appeal, the manner in which the prosecutor questioned three of his mitigation witnesses. All three of the witnesses testified that they were friends of Hill’s, and there were references to the fact that he had changed over twenty years and that he could now lead a productive life. Hill specifically argues that the prosecutor’s cross-examination of the three witnesses should have been challenged by trial counsel on the basis of Ark. R. Evid. 610, which, he argues, clearly prohibits the use of one’s religious beliefs to question or enhance one’s credibility. He asserts that the prosecutor’s questioning amounted to using a “religious belief to support an argument that the testimony of the holder of that belief is not credible on account of that belief,” all of which, he contends, violates Rule 610. He further argues that the prosecutor’s closing argument that because of their beliefs the three mitigation witnesses could not sit on the jury, and, thus, it was the duty of the jurors to follow the law, is the equivalent of arguing that it was the duty of the jurors to return a death sentence. These statements, Hill contends, were manifestly improper and would have warranted a mistrial, had trial counsel objected to them properly. He concludes that for these reasons, had defense counsel raised these issues properly on direct appeal, there is a reasonable probability that he would have obtained a reversal.

This court uses the following standard of review when examining a claim of ineffectiveness:

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).

Camargo v. State, 346 Ark. 118, 122-23, 55 S.W.3d 255, 258 (2001) (quoting Coulter v. State, 343 Ark. 22, 27, 31 S.W.3d 826, 829 (2000)). See also Strickland v. Washington, 466 U.S. 668 (1984).

Hill’s claim of ineffectiveness has essentially two parts: (1) counsel was ineffective in not making the proper objections at resentencing, and (2) counsel was ineffective for fading to raise the issue on appeal. With respect to these claims, there were three mitigation witnesses called by the defense: Freddie Nixon, Laura Organ, andjanis Golden. As to Ms. Nixon, Hill’s counsel objected to the following question by the prosecutor on cross-examination: “Ms. Nixon, do you have any religious or philosophical beliefs that would cause you to oppose the imposition of the death penalty?” Counsel objected to the cross-examination of Ms. Nixon about her philosophy. The trial court sustained the objection. The prosecutor later questioned Ms. Nixon about her involvement with certain organizations. Defense counsel again objected, and the trial court sustained the objection. Later, the prosecutor again asked what organizations Ms. Nixon belonged to besides the Methodist Church. She responded that she was a member of the Arkansas Interfaith Conference, which, she divulged, was not involved in death cases. Finally, the prosecutor asked Ms. Nixon whether she belonged to any organization which had taken a position with regard to Hill’s situation. Hill’s counsel started to object, and Ms. Nixon answered, “The United Methodist Church.” The trial court then overruled counsel’s objection. Ms. Nixon added that the Methodist Church had an official position in opposition to capital punishment as a part of its overall policy regarding criminal justice. The trial court sustained counsel’s objection when the prosecutor asked Ms. Nixon whether that was her position as well. She then testified that there was room for disagreement on the death penalty within the Methodist church. During the prosecution’s cross-examination of Ms. Nixon, there were several sidebar conferences between counsel and the trial court regarding defense counsel’s objections.

Next, Ms. Organ testified that she met Hill while working at the United Methodist Headquarters and that she was a member of the United Methodist Church. The prosecutor asked her why she was testifying, and she answered that it was due to her close friendship with Hill. The prosecutor asked Ms. Organ whether she belonged to any organization within the Methodist Church or any other special groups. She replied that she was a member of Civitan. The prosecutor then asked about any other groups to which she belonged. Defense counsel objected based on his previous objections made, and the trial court overruled the objection. Ms. Organ replied that she was a member of the Coalition to Abolish the Death Penalty. At a sidebar conference, Hill’s counsel asked the court about the prosecutor’s interrogation, and the court replied:

He didn’t get into the views. I didn’t want the views. The reason I made that ruling is, I’m trying to be at least as consistent as I can in this trial as I was in the other trial. So, I’m not going to get into the views. I think that’s proper. I don’t know if my ruling is as proper in the beginning, but I’m going to stick with it. I think Mr. Holt [the prosecutor] understands that. I’m just trying to be consistent with the ruling I made with respect to Rev. Nixon’s previous ruling [in the original trial]. You know, a bias is something that quite frankly, Mr. Holt has not gotten in to and I’m trying to stay out of people’s views on this issue, not organizations or what they belong to. For example, you show that she belongs to a Victim’s Rights Organization, you certainly can bring that out. But, now that’s — I don’t blame you for approaching. I don’t have any problem with that. I’m trying to explain the basis for both of my rulings.

With regard to Janis Golden, she testified on direct examination that she met Hill while working as an administrative assistant in the bishop’s office of the United Methodist Church for the Arkansas area. On cross-examination, the prosecutor asked whether she held the view that the State should not impose the death penalty. Defense counsel objected on previously asserted grounds, and the trial court overruled the objection. She replied that yes, she did.

It was the prosecutor’s position throughout his cross-examination of these three mitigation witnesses that he could delve into a witness’s bias against the death penalty as contrasted with a showing of impaired credibility based on religious beliefs.

Arkansas Rule of Evidence 610 provides: “Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impared [impaired] or enhanced.” Ark. R. Evid. 610 (2001). It is clear from an examination of the testimony of each of the three witnesses, and the appellant’s objections to the prosecutor’s cross-examination of each, that the proper objections were made. Hill’s counsel specifically objected to the witnesses’ being cross-examined on their philosophies, and the trial court sustained those objections and only permitted the prosecutor to question the reason why each witness was testifying.

Rule 610 clearly makes inadmissible one’s beliefs or opinions on matters of religion for purposes of demonstrating a lack of credibility. But that was not the case here. As outlined above, each witness merely testified about their memberships in organizations and, in the case of Ms. Golden, her beliefs about the death penalty. None testified as to their beliefs or opinions based on religious convictions. Moreover, defense counsel was adroit in making his objections to assure that the prosecutor did not impermissibly run afoul of Rule 610.

We conclude that Hill’s counsel did make the proper objections. Although he did not specifically reference Rule 610, it appears from the context of these objections and the colloquies with the trial court that Rule 610 was the premise for his argument. Accordingly, we hold that counsel was not ineffective for merely failing to articulate the rule number. See Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000) (citing Ark. R. Evid. 103) (stating “[t]he specific ground of an objection must be stated if the specific ground was not apparent from the context”).

We note, in addition, that this court conducted an Ark. Sup. Ct. Rule 4-3 (h) review in Hill VII, supra, in which we examined all rulings adverse to Hill for prejudicial error. Most of Hill’s counsel’s objections during the prosecutor’s cross-examination of his three mitigation witnesses were sustained by the trial court. However, those that were overruled were reviewed by this court under Rule 4-3 (h), and no prejudicial error was found. See Hill VII, supra. Our review and affirmance of those overruled objections became the law of the case. See Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). Accordingly, any suggested ineffectiveness on the part of Hill’s counsel for failing to appeal the court’s rulings is without merit.

Nor do we believe that trial counsel was ineffective for not objecting to the prosecutor’s closing argument about the inability of the three mitigation witnesses to sit as jury members because of their bias against the death penalty. Asserting the bias of a witness is different from asserting a witness’s impaired credibility due to religious beliefs under Rule 610. See, e.g., Redman v. Watch Tower Bible & Tract Soc’y of Penn., 69 Ohio St. 3d 98, 630 N.E.2d 676 (1994). We conclude that any objection on this point would not have led in any respect to a new trial.

II. Jury Instructions

Hill next claims that his counsel was ineffective for failing to appeal the trial court’s denial of two proffered jury instructions: (1) a definition of mitigation from James v. State, 11 Ark. App. 1, 665 S.W.2d 883 (1984), and (2) an instruction informing the jury that Hill would not be eligible for parole if he were sentenced to life imprisonment without the possibility of parole. He further asserts that the trial court’s denial of relief on the basis of this court’s Rule 4-3 (h) review was error. Appellant submits that where the future dangerousness of the defendant is at issue, and state law prohibits the defendant’s release on parole for capital murder, due process requires that the sentencing jury be informed that the defendant is not parole eligible. For authority, Hill cites us to Simmons v. South Carolina, 512 U.S. 154 (1994).

On the proffered instruction regarding mitigation, Hill observes that this court has held that a definition of mitigation is not required. See Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985). He asserts, however, that the Pruett case should be overruled. He concludes that there was a reasonable probability that his appeal on these points would have been successful, had counsel argued the error in refusing the two instructions. He further points out that trial counsel was ineffective in never getting a ruling on the mitigation instruction.

Hill’s argument on this last point is without merit. Both proffered instructions were marked: “Defense Proffered Refused.” Thus, there was clearly a ruling, and neither instruction was given to the jury. Moreover, this court found no prejudicial error in its Rule 4-3 (h) review in Hill VII, supra, and that is law of the case. See Davis v. State, supra. But, even so, the trial court was on sound ground in rejecting the proffered parole instruction, which contemplated an absolute prohibition against parole, since the governor could always commute a sentence of life imprisonment without parole. Because this court has held that there is no error in refusing an instruction which may have misled or confused the jury, see Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992), counsel would not have been ineffective for fading to raise such an issue on appeal. See Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000).

With regard to Simmons v. South Carolina, supra, there, the Court based its ruling on the fact that the jury was faced with a penalty decision between death or life imprisonment, and the trial court refused to inform the jury that state law prohibited the defendant’s release on parole. The Court specifically noted: “In this case, the jury reasonably may have believed that petitioner could be released on parole if he were not executed.” Simmons, 512 U.S. at 161.

The South Carolina circumstances were manifestly not the same as what occurred at resentencing. In this case, the trial court specifically instructed the jury: “After making the determinations required to complete Form One and Form Two, if applicable, you will then complete Form Three. ... If you make those findings, you will impose the death penalty. Otherwise, you will sentence Darrel [sic] Wayne Hill to fife imprisonment without parole.” Hence, in the case at hand, the fact that the life imprisonment was without parole was specifically communicated to the jury.

As to Hill’s proffered mitigation instruction, we decline to overrule Pruett v. State, supra. In that case, we concluded that the statutory language naming the elements of mitigation was not vague or beyond the common understanding of the ordinary juror. Thus, an instruction providing a definition of mitigation was not necessary. In the instant case, the jury was instructed that: “Unlike aggravating circumstances, you are not required to be convinced of the existence of a mitigating circumstance beyond a reasonable doubt. A mitigating circumstance is shown if you believe from the evidence that it probably existed.”

Hill, in asking the court to overrule a prior decision, has the burden of showing that the court’s refusal to overrule the prior decision would result in injustice or great injury. See B. C. v. State, 344 Ark. 385, 40 S.W.3d 315 (2001). He has failed to meet that burden. We hold, once more, that no further definition of mitigation was necessary.

III. Aggravating Circumstances

For his final point, Hill argues that counsel erred in not appealing the admission of two prior felony convictions as aggravating circumstances. The convictions at issue were an Oklahoma conviction for robbery with a firearm and a Missouri conviction for first degree robbery. Hill submits that these convictions were inadmissible as aggravators, because it could not be determined from the documents comprising the exhibits that these were crimes of violence, as required by Ark. Code Ann. § 5-4-604(3) (Repl. 1997). Accordingly, he maintains that the failure of counsel to object to the Oklahoma conviction and then his failure to raise the admissibility of both convictions on appeal constituted ineffective assistance of counsel.

We agree with the State that in connection with the Missouri conviction, the trial court overruled counsel’s objection. As stated above, review of that ruling would have been included in this court’s Rule 4-3 (h) review of all rulings adverse to the appellant, and it became law of the case. See Davis v. State, supra. As no prejudicial error was found in Hill VII, supra, in that review, appellant’s argument is without merit.

As for the Oklahoma conviction, the State is also correct. Because trial counsel did not specifically object to the admission of the Oklahoma conviction, it was not reviewed by the court in his direct appeal under Rule 4-3 (h). Nevertheless, following the penalty phase, the jury found the following aggravating circumstances:

Darrel [sic] Wayne Hill previously committed another felony an element of which was the use of threat or violence to another person, or creating a substantial risk or [sic] death or serious physical injury to another person.
In the commission of the capital murder, Darrel [sic] Wayne Hill knowingly created a great risk of death to a person other than the victim.
The capital murder was committed for the purpose of avoiding or preventing an arrest.
The capital murder was committed for pecuniary gain.

The jury further found no evidence of any mitigating circumstances. Under these circumstances, this court can conduct a harmless-error analysis:

(d) On appellate review of a death sentence, if the Arkansas Supreme Court finds that the jury erred in finding the existence of any aggravating circumstance or circumstances for any reason and if the jury found no mitigating circumstances, the Arkansas Supreme Court shall conduct a harmless error review of the defendant’s death sentence. The Arkansas Supreme Court shall conduct this harmless error review by:
(1) Determining that the remaining aggravating circumstance or circumstances exist beyond a reasonable doubt; and
(2) Determining that the remaining aggravating circumstance or circumstances justify a sentence of death beyond a reasonable doubt.
(e) If the Arkansas Supreme Court concludes that the erroneous finding of any aggravating circumstances by the jury would not have changed the jury’s decision to impose the death penalty on the defendant, then a simple majority of the court may vote to affirm the defendant’s death sentence.

Ark. Code Ann. § 5-4-603 (d) (Repl. 1997). Assuming it was error for the jury to consider Hill’s prior Oklahoma conviction and, thus, counsel was ineffective in not objecting to it, there were sufficient other aggravators to sustain the death sentence. We conclude that based on the three other aggravators affirmed by this court in Hill VII, supra, the jury would not have changed its decision to impose the death penalty, even without consideration of the Oklahoma conviction as an aggravator. Accordingly, counsel was not ineffective in failing to raise the issue of the Oklahoma conviction to the trial court or on appeal.

Affirmed.

       The State points out the somewhat bizarre circumstance that Hill’s attorney for the Rule 37.5 proceedings was the same as his attorney at the resentencing. The trial court pointed out at the beginning of a preliminary Rule 37.5 proceeding that Hill had, first, waived a Rule 37.5 proceeding but then asked that the same attorney represent him for purposes of postconviction matters. "We question the propriety of such dual representation but are unwilling to reject the Rule 37.5 appeal sua sponte for that reason alone.

       Although the United States Supreme Court most recently discussed this issue again in Kelly v. South Carolina, _ U.S. _ (fan. 9. 2002), it again based its decision on South Carolina’s sentencing scheme. It reasoned that the state supreme court erred in its analysis that appellant was not entided to an instruction that he would be ineligible for parole if he received a life sentence because state law provided the jury with a third sentencing alternative and future dangerousness was not an issue. The Court noted that because the jury can only make a sentencing recommendation if it finds an aggravating circumstance, and that at that time, the only alternative was death or life without parole, the state court’s reasoning was flawed. The Court further found that appellant’s future dangerousness was at issue.


author: J IM Hannah, Justice.

text:
    Devin Lavalle JONES v. STATE of Arkansas
    CR 01-965
    65 S.W.3d 402
    Supreme Court of Arkansas
    Opinion delivered January 24, 2002

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   J IM Hannah, Justice.

Appellant Devin Lavalle Jones appeals

his conviction for second-degree murder from Pulaski County Circuit Court. Jones asserts he was denied his right to a speedy trial under the Arkansas and United States Constitutions in that the State failed to show good cause when it nol-prossed his case. This court holds that the loss of the State’s only witness and consequent lack of evidence constitutes good cause to nol-pros the case.

Jones also asserts he has been subjected to an ex post facto law in that two of the felonies considered under the sentencing enhancement statute were committed after the murder. We hold there is no ex post facto issue. There was no change in the law that made Jones criminally hable for an act that was lawful when committed. Nor was there any change in the law that made the crime he was charged with greater than it was when committed. Felonies meeting the statutory requirements have long been used to enhance punishment even though the felonies used for enhancement were committed after the crime for which punishment is being determined.

Facts

On December 27, 1996, Timothy Bey was shot and killed. On December 30, 1996, Jones was arrested. Jones was charged with the murder by felony information on March 26, 1997. The case was continued from March 27, 1997, to June 11, 1997, on Jones’s motion. Then, on June 11, 1997, the trial court granted the State’s motion to nol-pros the case due to a lack of evidence to move forward because the State’s only witness had changed his story. It was not until the Spring of 2000 that a new witness came to the attention of the police as a byproduct of a federal investigation of other crimes. Charges were reffled on May 18, 2000. On January 5, 2001, the case was continued at the defense’s request to allow him to pursue a writ of prohibition on the issue of speedy trial. The petition was denied by this court on January 25, 2001. Then, again at the defense’s motion, the case was continued from January 25, 2001, to June 12, 2001. Trial commenced June 12, 2001. Jones was tried over four years after his arrest. He now alleges violation of his right to a speedy trial.

Jones sought and obtained three continuances for a total of 234 days. The State also caused passage of time by nol-prossing the case. The State, however, alleges that the time that passed from the date the case was nol-prossed until it was refiled also tolled the running of the time on speedy trial. This period was two years and 342 days. If the total time of continuances and the period resulting from the nolle prosequi are added together, and then subtracted from the total, Jones was tried 317 days after his arrest. Trial commenced June 12, 2001, and Jones was convicted of second-degree murder.

Speedy Trial

We note at the outset that the State argues we need not address the speedy trial argument because Jones failed to preserve the issue. There is no merit to this claim. In response to the motion by the State to nol-pros the case, Jones moved that the dismissal on the motion to nol-pros the case be granted with prejudice. A dismissal or, in other words, a nolle prosequi, is not a bar to a future prosecution for the same offense. Halton v. State, 224 Ark. 28, 271 S.W.2d 616 (1954). Jones thus argued the dismissal on the nol-pros motion was without good cause and should be dismissed with prejudice. The issue is properly before this court.

Jones argues his case was not brought to trial within one year of his arrest and that thereby his right to a speedy trial was violated. This is a murder case where there is no statute of limitations. The basic rule regarding speedy trial is that any defendant in circuit court who is not brought to trial within twelve months from the date of his arrest is entitled to have the charges dismissed with an absolute bar to prosecution. Burmingham v. State, 346 Ark. 78, 57 S.W.3d 118 (2001); Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Ark. R. Crim. P. 28.1. Further, the burden is on the State to bring the case to trial within the required time. State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981). The defendant is under no obligation to demand a trial in order to preserve his right to a speedy trial. Burmingham, supra; Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997).

In this case, Jones was tried more than four years after his initial arrest. Because more than one year passed from the date of arrest, the State bears the burden of showing that sufficient time may be excluded as “legally justified” such that the time that may be counted against speedy trial between arrest and trial does not exceed twelve months. Webb v. Ford, 340 Ark. 281, 9 S.W.3d 504 (2000); State v. Lewis, 268 Ark. 359, 596 S.W.2d 697 (1980). The State has long been required to show good cause where a criminal defendant has not been brought to trial within the required time. Randall v. State, 249 Ark. 258, 260, 458 S.W.2d 743 (1970); Ware v. State, 159 Ark. 540, 555, 252 SW. 934 (1923).

The minimum requirements of the federal constitution on this issue were set out in Barker v. Wingo, 407 U.S. 514 (1972). Under Wingo, there are four factors to be considered in determining whether an individual received a speedy trial. They are “length of delay, the reason for the delay, the defendant’s assertion of his right and prejudice to the defendant.” Grooms v. State, 260 Ark. 879, 880, 545 S.W.2d 610 (1977). But before Wingo applies, since the length of delay is only a triggering mechanism, it must be such as to be presumptively prejudicial. Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). Over four years would meet that requirement.

Arkansas Rule of Criminal Procedure 28 governs limitations on prosecutions, excluded periods, and consequences. Rule 28.1 sets the time within which a trial must be brought at one year from arrest. The rules also provide for exclusion of time from arrest, such as continuances at the defendant’s request. Excludable periods are set out under Rule 28.3. Rule 28.3 also states a requirement that any period to be excluded from the one-year period “shall” be set forth in a written order or docket entry. Burmingham, supra; Ark. R. Crim. P. 28.3. This requirement of a written order or docket entry is satisfied when there is such an order or docket entry as well as when the record itself demonstrates the delays were attributable to the accused and where the reasons were memorialized in the proceedings at the time of the occurrence. Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996); Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993); Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990).

The record shows that Jones sought and obtained three continuances. The time under these continuances is thus excluded under Rule 28.3(c). Jones asserts, however, that the period from June 11, 1997, until May 18, 2000, resulting from the nolle prosequi is not excludable because there was. no good cause therefor. The State argues this period is excluded under Rule 28.3(f), which provides:

The time between a dismissal or nolle prosequi upon motion of the prosecuting attorney for good cause shown, and the time the charge is later filed for the same offense or an offense required to be joined with that offense.

The Bill of Exceptions dated June 11, 1997, shows the State moved to nol-pros the case, stating that the only evidence they had was a witness who had changed his story and would no longer testify Jones had shot Bey. Jones moved for a dismissal with prejudice. The court, however, noted the State had made a record on the nol-pros and that speedy trial was tolled. Jones’s motion to dismiss with prejudice was denied.

Jones now asserts that a lack of evidence does not constitute good cause. In Caulkins v. Crabtree, 319 Ark. 686, 894 S.W.2d 138 (1995), this court held that good cause on behalf of the State is not established merely by a defendant’s inability to show a lack of good cause. The burden to show good cause is on the State. Also, more is required than mere proof that nolle prosequi is not being used as a device to avoid a speedy-trial dismissal. Caulkins, supra.

In the case at bar, the State argues a lack of evidence is good cause. In Carter v. State, 280 Ark. 34, 655 S.W.2d 379 (1983), a situation arose that is helpful in analyzing the present case. In Carter, a wife was being prosecuted for the murder of her husband. Just before the wife was to be tried, it was learned that the daughter would testify that she and not her mother had killed her father. Based upon this development, the State moved to nolle prosequi the case against the mother. This motion was granted. However, a subsequent proceeding in juvenile court found there was insufficient evidence to adjudicate the daughter a juvenile delinquent. The State then refiled the murder charge against the mother. The mother moved for dismissal based upon failure to comply with Rule 28. This court found that the State had good cause because of the daughter’s intent to confess and because the State in seeking the nolle prosequi was not simply attempting to evade the speedy-trial requirement. Thus, this analysis satisfies the requirements later noted in Caulkins, supra, in that there is good cause for the nolle prosequi, and there is more than mere proof that nolle prosequi was not being used as a device to avoid a speedy-trial dismissal. In Carter, as in the case at bar, the State moved to nol-pros the case due to a lack of evidence, and the nolle prosequi was not being used as a device to avoid a speedy-trial dismissal. In Wingo, supra, the U.S. Supreme Court noted that a missing witness is a valid reason for an appropriate delay. Washington, supra, is inapposite. Here, the State’s only witness initially cooperated with the State and then recanted his earlier statement.

The right to a speedy trial is protected by both Art. 2, § 10, of the Arkansas Constitution and the Sixth Amendment to the United States Constitution. This case was nol-prossed. Arkansas Code Annotated § 16-89-122 (1987) provides that the prosecuting attorney, with the permission of the court, may dismiss the indictment, and the dismissal will not be a bar to future prosecution for the same offense. A dismissal or, in other words, a nolle prosequi, is not a bar to a future prosecution for the same offense. Halton, supra. The effect is to set aside or annul the indictment. Moore v. State, 170 Ark. 697, 280 S.W. 657 (1926); Ley v. State, 42 Ark. 105 (1883). Similar reasoning appears to prevail under federal analysis. In United States v. Loud, 474 U.S. 302, 310 (1985), the U.S. Supreme Court stated, “The court has found that when no indictment is outstanding, only the ‘actual restraints imposed by arrest and holding to answer a criminal charge . . .’ engage the particular protections of the speedy trial provisions of the Sixth Amendment.” The Court was citing United States v. MacDonald, 456 U.S. 1 (1981), wherein the U.S. Supreme Court further stated, “Although a delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment (citation omitted), or to a claim under any applicable statute of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending.” MacDonald, 456 U.S. at 6. The court in MacDonald went on to state, “Similarly, the Speedy Trial Clause has no application after the Government acting in good faith, formally drops charges. Any undue delay before charges are filed must be scrutinized under the Due Process Clause, not the Speedy Trial Clause,” and that “Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation.” MacDonald 456 U.S. at 7, 9. The U.S. Supreme Court also noted that the purpose of the right to a speedy trial is not intended to prevent prejudice to the defendant by the passage of time. That protection is provided by due process and statutes of limitation. Rather, the purpose is to minimize the possibility of a lengthy incarceration prior to trial and to shorten the disruption of life caused by arrest and unresolved criminal charges. MacDonald, supra.

However, even so, the period of delay must be for good cause shown. Washington, supra; Ark R. Crim P. 28.3(f). We must determine then if this lack of investigation gives rise to an unreasonable delay. This court has said that the constitutional right to a speedy trial is violated only by vexatious, capricious, and oppressive delays manufactured by the ministers of justice. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979); Leggett v. Kirby, 231 Ark. 576, 331 S.W.2d 267, cert. den. 362 U.S. 981 (1960). A speedy trial is a trial conducted according to fixed rules, regulations, and proceedings of law, free from vexatious, capricious, or oppressive delays manufactured by ministers of justice; and what constitutes a speedy trial must be determined from the varying circumstances of each particular case with reference to the practical and efficient operation of the law. Randall v. State, 249 Ark. 258, 458 S.W.2d 743 (1970). There is no evidence here of any vexatious, capricious, and oppressive delays manufactured by the ministers of justice. Rather, the delay resulting from the nolle prosequi was the result of a lack of evidence, and that is a permissible delay. Carter, supra. Although more than four years passed from the date of Jones’s arrest on December 30, 1996, and his trial in June of 2001, when the total time consumed by Jones’s continuances and the time attributable to the nol-pros are added together and subtracted from the total, Jones was tried within the one-year time requirement of Rule 28.

Enhancement Based Upon Offenses Committed After the Charged Offense

Jones argues that he may not be punished now to a greater extent for the murder of Bey than he could have been had he been tried and convicted before he was able to commit the subsequent felonies. Jones asserts that the felonies he committed after the murder for which he was convicted may not be used to enhance his sentence on that murder conviction. This issue has already been addressed by this court. The date of commission of the offense being used to enhance a sentence under Ark. Code Ann. § 5-4-501 (Supp. 2001) is not relevant. The provisions of the Arkansas Habitual Criminal Statute are not deterrent, but rather punitive in nature, such that a prior conviction regardless of the date of the crime may be used to increase punishment. Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001); see also Washington, supra. In this case, Jones’s own conduct after the murder caused the enhancement of his sentence, not a change in the law. Further, the enhancement statute is not a distinct additional offense, but rather it provides a guide for the court or jury in fixing final punishment on the charged offense. Finch v. State, 262 Ark. 313, 556 S.W.2d 343 (1977).

Jones, however, argues that use of the offenses committed after the murder constitutes an ex post facto application of law in violation of the Arkansas and United States Constitutions. Ex post facto is inapplicable here. Long ago, this court stated, “An ex post facto law declares an offense to be punishable in a manner that it was not punishable at the time it was committed, and relates exclusively to criminal proceedings.” Taylor v. The Governor, 1 Ark. 21 (1837). See also, Burns v. State, 303 Ark. 64, 793 S.W.2d 779 (1990). An ex post facto law is one that makes an action done before the passing of the law, and which was innocent when done, criminal or one that aggravates a crime, or makes it greater than it was, when committed. Herman, et al v. State, 256 Ark. 840, 512 S.W.2d 923 (1974).

For ex post facto to apply then, there must be a change in the law which either criminalizes a previously innocent act or which increases the punishment received for an already criminalized act. Jones has made no such argument. The period of enhancement for each crime is laid out in Section 5-4-501 (d)(1)(A-F). Section 5-4-501 has been amended a number of times. The murder was committed in 1996, and so only the 1997 and the 2001 amendments could impact this case. Neither amendment made any change to paragraphs (d)(1)(A-F). There is nothing to indicate any change in the relevant law between the murder in 1996 and Jones’s sentencing on the murder conviction at issue in this case. There is no issue of ex post facto application of any law.

Affirmed.


author: w .H. “Dub” ARNOLD, Chief Justice.

text:
    Raymond E. ALLEN, Winner’s Circle, and Bob Eubanks v. Angela D. GREENLAND, Donald Greenland, Donna Hutchinson, Kathy Peery, and Bill Peery
    01-447
    65 S.W.3d 424
    Supreme Court of Arkansas
    Opinion delivered January 31, 2002
    [Petition for rehearing denied February 21, 2002.]

      David Hodges, for appellants.

      Jewell, Moser, Fletcher & Holleman, a Professional Association, by: John T. Holleman, IV, and Paul Pfeifer, for appellees.
   w .H. “Dub” ARNOLD, Chief Justice.

Appellants, Raymond E. Allen, Winner’s Circle, and Bob Eubanks, bring this interlocutory appeal challenging the Faulkner County Circuit Court’s order granting appellees Donna Flutchinson, Eric Hutchinson, Kathy Peery, and Bill Peery’s motion to strike, second motion for sanctions against Bob Eubanks, and appellees Angela D. Greenland and Donald Greenland’s motion to strike amendment to answer. We affirm in part and reverse and remand in part. We affirm appellee Greenland’s motion to strike amendment to answer. However, we reverse and remand the trial court’s order granting the motion to strike and second motion for sanctions against Bob Eubanks.

We are first faced with the question of whether appellants can appeal to this court. Appellees argue in their motion to strike for frivolous appeal that the appeal should be (1) dismissed because the circuit court’s order was not final for purposes of appeal, or (2) affirmed because the order was within the trial court’s discretion. Appellees contend this appeal is in direct violation of Rule 54(b) of the Arkansas Rules of Civil Procedure, stating appellant is attempting to appeal an order of discovery sanctions issued by the trial court which involves multiple claims or parties which is not final and, therefore, not appealable, unless it disposes of all the parties and all of the claims. However, this court does possess jurisdiction to hear this appeal because the trial court’s order strikes out an answer and an amended answer. Arkansas Rule of Appellate Procedure — Civil 2(a)4 directly asserts an appeal may be taken from a circuit court to the Arkansas Supreme Court from “an Order which strikes out an answer, or any part of an answer, or any pleading in an action.” Ark. R. App. P. — Civ. 2(a)4. This Court has held that Arkansas Rule of Appellate Procedure — Civil 2(a)4 controls over Rule 54(b) of the Arkansas Rules of Civil Procedure. Arnold Fireworks Display v. Schmidt, 301 Ark. 316, 820 S.W.2d 444 (1991). In Arnold, we held that a trial court’s order striking defendant’s answers and amended answers is not a final judgment, but Ark. R. App. P. — Civ. 2(a)4 expressly provides for an appeal to the Arkansas Supreme Court. Id. at 319. We hold that Ark. R. App. P. — Civ. 2(a)4 expressly provides for this appeal because appellant’s answer and amendment to an answer was stricken.

Turning to the facts from which this appeal stems, on June 28, 1999, Raymond Allen was driving northbound in a one-ton, dual-wheeled, Chevrolet pickup owned by Winner’s Circle and Bob Eubanks, individually. Allen’s vehicle rear-ended Robert Brook-shire, who was driving at a slow rate of speed on the shoulder of the road, absent brake or hazard lights. After this collision with Brook-shire, Allen lost control of his vehicle and crossed to the southbound lane, hitting Donna Hutchinson, the driver of a 1999 GMC Suburban. Hutchinson had a number of passengers in the Suburban, including Kathy Peery and Angela Greenland.

Two lawsuits were filed against separate defendant Robert Brookshire and appellants Raymond Allen, Winner’s Circle, and Bob Eubanks. Appellees Donna and Eric Hutchinson and Kathy and Bill Peery filed their complaint and attached the first set of interrogatories and requests for production on October 5, 1999, against Brookshire and appellants. The appellees in the second lawsuit, Angela and Donald Greenland, filed their first complaint on December 3, 1999, against the same parties.

On November 8, 1999, Brookshire filed a timely answer to the Hutchinson and Peery complaint. On November 12, 1999, Winner’s Circle and Eubanks filed an untimely pro se answer to the complaint, with a certificate of service signed by Bob Eubanks and addressed to plaintiffs’ attorney, denying effectively each and every allegation claimed, including the allegation of negligence against Allen. However, appellees argue this answer was never sent to any of the parties until June 21, 2000. Allen did not file an answer to the Hutchinson and Peery complaint, stating that once he had received the documents, he gave them to Eubanks, who assured Allen he would provide an attorney for him. Allen stated in depositions that he had a learning disability and did not understand the papers served on him.

Appellees Hutchinson and Peery filed an amended complaint on January 20, 2000, adding State Farm Mutual Automobile Insurance Company (hereinafter State Farm), Hutchinson’s insurance carrier, as a separate defendant. State Farm filed a timely answer and interrogatories and requests for production of documents on February 8, 2000. State Farm’s answer denied each and every material allegation for all defendants set forth in the plaintiffs’ first amended and substituted complaint. Greenland also filed an amended complaint on February 8, 2000, which also added State Farm as a separate defendant, who again filed a timely answer denying negligence on the part of all defendants, as well as interrogatories and requests for production of documents on March 3, 2000. As well as denying each and every material allegation in both complaints, State Farm also denied that Allen’s vehicle rear-ended Brookshire’s. State Farm further denied that Allen lost control of his vehicle and crossed the center lane hitting plaintiffs head on and denied plaintiffs suffered injuries as a result of the negligence of the defendants. State Farm denied negligence on the part of Brookshire, Allen, Winner’s Circle, and Eubanks.

A motion to consolidate the Hutchinson and Peery complaint and the Greenland complaint was filed by Brookshire. In support of its motion, Brookshire cited Rule 42 of the Arkansas Rules of Civil Procedure, which permits the consolidation of actions involving a common question of law or fact pending before the same court. On February 23, 2000, the two cases were consolidated.

On May 19, 2000, appellees Hutchinson and Peery filed a motion to compel answers to the first set of interrogatories stating appellants never answered their initial complaint nor any discovery. Appellants responded to the motion to compel on June 1, 2000, stating that Hodges, attorney for appellants, had recently entered an appearance in the case, and should have additional time to answer the discovery since previous pleadings were filed pro se. Appellants requested a hearing on this matter and objected to attorney’s fees and all other sanctions.

On June 6, 2000, Hutchinson and Peery filed a motion to strike defendants’ answer as untimely, alleging that Allen, Winner’s Circle, and Eubanks failed to answer the complaint or the amended complaint until May 30, 2000. However, although they argued that the answer was untimely, appellees failed to allege any prejudice to their case due to the amount of time it allegedly took the defendants to answer. Appellants argued Brookshire and State Farm filed a timely answer to the complaint, which was not challenged by Hutchinson and Peery’s motion to strike. The Brookshire answer denied the complaint generally as to himself, as well as the liability of Winner’s Circle and Eubanks, but was inconsistent as to the liability of Allen. However, State Farm’s timely answer denied each and every allegation in the complaint as to all defendants.

Eubanks filed his responses to interrogatories on July 21, 2000, which included a financial statement prepared by Bob Eubanks dated November 8, 1998, indicating he had a negative net worth of -$155,013. Eubanks stated in these interrogatories that he had prepared this personal financial statement in order to obtain a loan from Regions Bank in Harrison, Arkansas. Hutchinson and Peery issued a subpoena duces tecum on August 4, 2000, to Regions Bank to verify Eubanks’ interrogatory responses regarding his financial statement. The personal assistant to the president of Regions Bank indicated to appellees that there was no November 8, 1998 financial statement, but a previous financial statement, dated June 22, 1998, stated that Eubanks had a net worth of $2.5 million.

On August 14, 2000, Hutchinson and Peery filed a second motion for sanctions, stating responses to interrogatories submitted by Eubanks were fraudulent concerning Eubanks’s financial statement. Hutchinson and Peery attached an affidavit with the motion stating they incurred $3,300.00 in costs in bringing such motion and that a monetary sanction in that amount should immediately be awarded. Eubanks responded to such motion for sanctions on August 21, 2000, denying he submitted any false information in responding to discovery and requested a hearing on the matter.

Allen, Winner’s Circle, and Eubanks filed an amendment to answer in order to amend all previous pleadings to assert that Greenland did not have a seatbelt attached and that this proximately caused her injuries and damages. Therefore, they contended that Greenland was guilty of contributory negligence and pled the defense of comparative negligence on the part of Greenland. Greenland filed a motion to strike amendment to answer based on the untimeliness of when it was filed. Greenland contended appellants had months to raise such defense and failed to do so until only two weeks before the trial date. Greenland, who was a passenger in the backseat of the Hutchinson vehicle, also relied on Ark. Code Ann. § 27-37-702, which provides that every driver and front-seat passenger in a motor vehicle operated on a street or highway shall wear a properly adjusted and fastened seatbelt. Ark. Code Ann. § 27-37-702 (Repl. 1994). In appellant’s response, counsel requested a hearing on the motion to strike amended answers.

On February 28, 2001, Allen, Winner’s Circle, and Eubanks wrote the trial court a letter requesting a hearing on the outstanding motions. Hutchinson and Peery replied stating a hearing would not need to be held to take up such items. In a letter dated March 16, 2001, the trial court stated it had reviewed the case file with all pending motions and briefs in support of said motions and compiled a “laundry list” of such motions with corresponding decisions to grant or deny. Hutchinson and Peery’s counsel prepared the order which was filed on April 9, 2001. On April 11, 2001, appellants filed an objection of entry of order and renewal of request for hearing on pending motions. The notice of appeal and designation of record was filed on April 16, 2001, by appellants.

Motion to Strike Answer

The first issue we address on the merits of the case is whether the State Farm answer inures to the benefit of all the appellants. We agree that Brookshire’s answer does not inure to the benefit of Allen due to the inconsistency of his answer regarding negligence. However, State Farm’s answer does deny negligence on the part of all defendants and presents a common defense; therefore, we hold that it does inure to appellant’s benefit. Therefore, we reverse and remand the trial court’s order granting Hutchinson’s and Peery’s motion to strike.

Arkansas has long recognized the common-defense doctrine, which provides that an answer that is timely filed by a codefendant inures to the benefit of a defaulting codefendant. Sutter v. Payne, 337 Ark. 330, 989 S.W.2d 887 (1999); Richardson v. Rodgers, 334 Ark. 606, 976 S.W.2d 941 (1998); Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991); Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 561 S.W.2d 280 (1978). The test for determining if an answer will inure to a codefendant’s benefit is whether the answer of the nondefaulting defendant states a defense that is common to both defendants, because then “a successful plea . . . operates as a discharge to all the defendants, but it is otherwise where the plea goes to the personal discharge of the party interposing it.” Sutter, supra; Richardson, supra; Southland Mobile Home Corp., supra.

In Sutter, Luther S. Sutter died testate leaving appellees, Mary Lou Sutter Payne and Cora Sutter West, as the co-executors of his estate, who, in turn, filed a declaratory judgment action on December 26, 1996, naming certain defendants including William Howard Payne, Joshua Sutter, De’Shawn Robinson, Luther Sutter, and Clayla Hicks. Luther Sutter filed a pro se motion to dismiss based on the trial court not having jurisdiction, venue being improper, and plaintiffs failing to state a claim upon which relief could be granted. Luther also filed an answer which included a general denial of each and every material allegation set forth in the petition for declaratory judgment. Sometime thereafter, Luther settled his claim, and on December 27, 1997, filed a motion to withdraw his answer and all other pleadings filed on his behalf. Joshua Sutter filed an answer to the original and amended petition on December 22, 1997. On January 27, 1998, Clayla Hicks filed a motion to strike Joshua Sutter’s answer as untimely. She stated Joshua was served with the petition on January 4, 1997, and the amended petition on June 23, 1997; thus, the December 22, 1997, answer was untimely. Joshua asserted the common-defense doctrine by claiming that he could benefit from Luther Sutter’s timely-filed response. The trial court found Joshua Sutter could not benefit from Luther Sutter’s timely-filed responses because they had been withdrawn. We reversed the case.

This court held that it appeared that the common-defense doctrine did apply to the Sutter case. This court found that Luther’s answer did inure to the benefit of Joshua because Luther’s answer contained a general denial of all material allegations in the petition even though Luther had withdrawn from the petition.

In the case before us today, there is no dispute that appellants did not comply with the Arkansas Rules of Civil Procedure. “A defendant shall file his answer within twenty (20) days after the service of summons and complaint upon him. ...” Ark. R. Civ. P. 12(a). It is clear from the facts before us that Allen did not file an answer at all and that Winner’s Circle and Eubanks filed a pro se answer that was nine days late and filed other answers which were also untimely.

However, State Farm’s answer clearly inures to the benefit of appellants because State Farm states a defense that goes to the merits of the whole case and answers allegations directed at and common to all defendants. The State Farm answer denied each and every allegation of the appellees’ complaint. State Farm also denied that Allen’s vehicle rear-ended Brookshire’s; denied Allen lost control of his vehicle and crossed the center lane hitting plaintiffs head-on; denied plaintiffs suffered injuries as a result of the negligence of the defendants; and denied negligence on the part of Brookshire, Allen, Winner’s Circle, and Eubanks. Allen, Winner’s Circle, and Eubanks raised this issue to the trial court in their response to plaintiff’s motion to strike defendants’ answer. Appellants stated the “answers filed by the other defendants, in this case, which were timely filed inure to the benefit of Raymond E. Allen, Winner’s Circle and Bob Eubanks, individually, because they all contain similar allegations. Thus, the answers of co-defendants inure to the benefit of these respondents.” Furthermore, Allen, Winner’s Circle, and Eubanks stated “[n]ot only did Bob Eubanks file an answer, early on in the litigation, but other defendants, as well, filed timely answers, all of which inured to the benefit of Bob Eubanks and Raymond Allen” in appellant’s amendment to memorandum brief in support of response to motion to strike answers.

This case is more obvious than Sutter. Here, State Farm filed an answer to the complaint and is a current defendant in the case. State Farm presents to the court a common defense for ah defendants and stands ready to defend such suit. In Sutter, Joshua Sutter was relying on Luther’s answer, who had been dismissed from the case. In the instant case, it is clear that State Farm’s answer should inure to the benefit of all defendants including Allen, Winner’s Circle, and Eubanks. Therefore we reverse and remand the trial court’s order granting appellees Hutchinson and Peery’s motion to strike.

Second Motion for Sanctions against Bob Eubanks

Another issue we address in this appeal is the trial court’s order granting appellees Hutchinson’s and Peery’s second motion for sanctions against Bob Eubanks, individually. This motion claimed that Eubanks committed perjury and fraud in his interrogatory responses and sought costs of bringing said motion in the amount of $3,300.00, the amount filed through an affidavit related to their time spent in having to file the motion. We reverse and remand the trial court’s order granting appellees’ second motion for sanctions and the granting of $3,300.00 monetary sanctions.

Eubanks filed his responses to interrogatories on July 21, 2000, and attached various exhibits, which included a personal financial statement dated November 8, 1998, which showed a total net worth of-$155,013. Upon receipt of Eubanks’s responses, appellees filed a notice of deposition and subpoena duces tecum to the president of Regions Bank. Regions submitted a financial statement to Hutchinson and Peery stating a net worth of $2.5 million for Eubanks, but this financial statement was dated June 22, 1998. Regions Bank stated this was the most current personal financial statement for Eubanks it had on record.

Hutchinson and Peery argue Eubanks committed pequry and fraud in his interrogatory responses, because the financial statement submitted by Eubanks and the financial statement submitted by Regions Bank stated extremely differing amounts. They argued in their second motion for sanctions that the financial statement submitted by Regions was a true and correct financial statement and that the one submitted by Eubanks in response to interrogatories was fraudulent.

Eubanks contends there is absolutely no evidence that the discrepancy in his net worth on the two statements is caused by anything more than the two different time periods the statements address. Similarly, there was no evidence introduced in the trial court demonstrating whether or not Eubanks provided the November statement to Regions. Likewise, there was no evidence clarifying the inconsistencies of the two financial statements. There is simply no evidence that one statement is true and correct and the other fraudulent. In response to the second motion for sanctions, Eubanks requested a hearing on the matter to determine such discrepancies, but no such hearing was held. Furthermore, the order issued by the trial court did not state reasons for granting the motion but, rather, generally granted the second motion for sanctions.

We have long held that the trial court has wide discretion in matters pertaining to discovery and that a trial court’s decision will not be reversed absent an abuse of discretion. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001); Parker v. Southern Farm Bureau Cas. Ins., 326 Ark. 1073, 935 S.W.2d 556 (1996); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992). We have found an abuse of discretion where there has been an undue limitation of substantial rights of the appellant under the prevailing circumstances. Dodson, supra; Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446 (1971). Likewise, Arkansas Rule of Civil Procedure 37(a)(4)(A) states, “If the motion is granted, or if the requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party of deponent, whose conduct necessitated the motion or the party or attorney advising such conduct or both of them, to pay the moving party the reasonable expenses incurred in making the motion unless the court finds that the motion was filed without movant’s first making a good faith effort to obtain the discovery without court action. . . .” Ark. R. Civ. P. 37(a)(4)(A). This court has upheld sanctions when a party has failed to timely respond to a discovery request and when the order contained notice of the possible imposition of sanctions for failure to comply. Viking Insurance Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992).

In this case, the trial court granted appellee’s second motion for sanctions against Eubanks and granted monetary sanctions of $3,300.00, the cost of bringing such motion. We reverse and remand because, under these circumstances, it was an abuse of discretion not to hold a hearing on this matter as appellants had requested.

Eubanks requested a hearing on the basis that it was impossible to determine which financial statement was fraudulent. This is not to say that a hearing need be held in all cases where discovery sanctions are ordered. Nevertheless, in this case, other than the “laundry list” order, there was no order entered requiring Eubanks to answer the interrogatories. Eubanks was unaware that the trial judge was considering sanctions without having conducted a hearing. Accordingly, there is no proof in the case that is supportive for the trial court to decide which financial statement was correct. The order issued by the trial court simply stated “Plaintiffs’ Second Motion for Sanctions against defendant Bob Eubanks is granted and monetary sanctions are entered in the amount of $3,300.00.” We hold that some opportunity should have been afforded Mr. Eubanks to explain the difference between the two conflicting financial statements. The simple fact that there were two different amounts and two different dates is not per se fraud on the part of Eubanks. Consequently, a hearing should have been held under these particular facts and circumstances to determine the validity of the financial statements.

Motion to Strike Amended Answer

Finally, appellants argue the trial court erred when it granted appellee Greenland’s motion to strike amended answer. We find this argument without merit and, therefore, affirm the trial court’s order regarding this point. Allen, Winner’s Circle, and Eubanks amended their previous pleadings on July 5, 2000, to assert appellee Angela Greenland, at the time of the incident, failed to have her seatbelt fastened and that this was the proximate cause of her injuries and damages. Appellants pled the defense of contributory negligence and proximate cause. Appellee Greenland filed a motion to strike amendment to answer arguing the amendment was not timely filed and citing Ark. Code Ann. § 27-37-702 (Repl. 1994), which provides that every driver and front seat passenger must wear a seatbelt. Greenland was a passenger in the back seat of the Flutchinson vehicle and thrown to the front seat where she sustained injuries. The trial court granted appellee Greenland’s motion.

We affirm the trial court on this point. The facts indicate Greenland was a passenger in the back seat of the vehicle, not the front seat. Ark. Code Ann. § 27-37-703(a)(l) states that “the failure of an occupant to wear a properly adjusted and fastened seatbelt shall not be admissible into evidence in a civil action.” We have upheld this statute stating that the prejudicial effect of evidence of not wearing a seatbelt at time of accident outweighed any probative value of the evidence. Grummer v. Cummings, 336 Ark. 447, 986 S.W.2d 91 (1999). Therefore, we affirm the order of the trial court granting the motion to strike amended answer.

For the reasons set forth, while affirming the trial court’s ruling on appellee Greenland’s motion to strike amended answer, we reverse and remand the trial court’s order granting appellees Hutchinson and Peery’s motion to strike and second motion for sanctions against defendant Bob Eubanks with monetary sanctions in the amount of $3,300.00.

Affirmed in part; reversed and remanded in part.

IMBER, J., not participating.


author: D i i ONALD L. CORBIN, Justice.

text:
    Kevin MAYBERRY v. Dorothy FLOWERS and Michael Flowers
    00-1460
    65 S.W.3d 418
    Supreme Court of Arkansas
    Opinion delivered January 31, 2002

      Tripcony Law Firm, RA., by: James L. Tripcony and Scott A. Scholl, for appellant.

      Gordon, Caruth & Virden, P.L.C., by: Ben Caruth, for appellee Dorothy Flowers.

      Scott Adams, for intervenor Michael Flowers.
   D i i ONALD L. CORBIN, Justice.

This case raises the question of what notice must be given to a natural parent before the parent’s right to his or her child may be terminated through adoption. Appellant Kevin Mayberry appeals the judgment of the Conway County Probate Court setting aside his adoption of James Walter Flowers, the minor child of Appellee Michael Flowers and the late Reneé Flowers Mayberry. This case was certified to us from the Arkansas Court of Appeals as presenting an issue of significant public interest. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(b)(4). The sole issue on appeal is whether Michael received notice of the pending adoption, in compliance with the requirements of due process. We conclude that he did not, and we affirm the probate court’s ruling.

The record reflects that James was born on August 28, 1991, to Reneé and Michael Flowers. Reneé and Michael divorced on October 9, 1992, and Reneé was awarded custody of James. Approximately one year later, Reneé married Kevin Mayberry. Reneé brought two children to the marriage, John and James, and three children were subsequently born to the Mayberrys. Kevin and Reneé filed a joint petition to adopt James on June 14, 1996. In the petition, Reneé gave her consent for James’s adoption. The petition alleged that Michael’s consent was not necessary because he had failed, without justifiable cause, to communicate with James and to contribute to James’s support. Despite those allegations, the probate court appointed an attorney ad litem for Michael. In a report filed with the probate court, the attorney ad litem stated that on August 14, 1996, she had mailed a copy of the adoption petition by certified mail to Michael at his last known address. The letter was returned unclaimed. Thereafter, a warning order was published in the Petit Jean County Headlight on February 19, and 26, 1997. Michael made no appearance in the matter, and on June 16, 1997, the probate court granted a temporary order of adoption.

Only months after the adoption order was entered, Kevin and Reneé separated. Reneé filed for divorce on November 10, 1997. She also filed a motion to dismiss the adoption proceeding. While the divorce was pending, Reneé was granted temporary custody of the five children, including James. She also applied for and was granted an order of protection from Kevin.

At some point in February 1998, Reneé telephoned Michael and told him that Kevin was trying to adopt James, and that Michael needed to be at the courthouse for a hearing on February 13, 1998. On the date of the hearing, Michael arrived at the courthouse just as Reneé was leaving. Reneé informed him that Kevin had not shown up for the hearing and that the judge had dismissed the adoption. Michael asked Reneé if he needed to do anything or fill out any paperwork to prevent the adoption. Reneé assured him that the matter was finished.

Two months later, on April 28, 1998, Reneé died. Following her death, Michael contacted Kevin and told him that he would be coming to get James, but that he would allow James to stay with Kevin until the 1998 school year was finished. That summer, Michael took custody of James. Since that time, James has lived with either Michael or Michael’s mother, Appellee Dorothy Flowers.

On December 14, 1998, ten months after the adoption was dismissed and eight months after Reneé died, Kevin filed a petition for writ of habeas corpus in the Conway County Chancery Court seeking custody of James. Kevin claimed that he was the adoptive father of James by virtue of the order entered on June 16, 1997. He asserted that the June 16 order was a final order that declared James to be the child of Kevin and Reneé. He argued that the order dismissing the adoption was void because it was entered more than ninety days after the decree that it purported to dismiss, in violation of Ark. R. Civ. P. 60(b). The chancery court denied Kevin’s petition.

Kevin appealed to the court of appeals, which reversed the chancery court and upheld the- adoption. See Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000). The court of appeals concluded that the June 16, 1997 decree, though styled “Temporary Order of Adoption,” was actually a final order because it contemplated no further action by the probate court. Thus, the court of appeals held that the probate court’s dismissal of the adoption petition, which was entered more than ninety days after the final decree, was void because the probate court lost jurisdiction to do so under Rule 60(b).

On April 17, 2000, approximately one month after the court of appeals’s ruling, Michael filed a petition to set aside the adoption. In his petition, Michael asserted that he had not received notice prior to the order of adoption. He alleged that Reneé had committed a fraud upon him and upon the probate court because she had knowledge of Michael’s correct address at the time of the adoption. He further alleged that since the entry of the adoption decree, Kevin had not taken custody of James, and that the child had remained in Michael’s custody for the previous two years. Michael asked that the adoption be declared void.

A hearing was held on May 15, 2000, after which the probate court issued an order setting aside the adoption on the grounds of fraud and a lack of notice to Michael. Relying on this court’s decision in McKinney v. Ivey, 287 Ark. 300, 698 S.W.2d 506 (1985), the probate court found that the service of process did not meet the requirements set forth in Ark. R. Civ. P. 4(e). The court found that the warning order published in the local newspaper did not constitute valid service, because it was not accompanied by an affidavit stating that a diligent inquiry had been made and that the defendant’s whereabouts were unknown. See Rule 4(f). Indeed, the court found that there was clear and convincing evidence showing that Kevin and Reneé had practiced fraud upon Michael and the probate court by intentionally failing to serve notice on Michael, even though they knew his correct address and whereabouts. The court found further that, contrary to the assertions in the adoption petition, at no time had Michael abandoned the child, such that he would not have been entitled to notice prior to the adoption.

For reversal, Kevin argues that Michael’s petition to set aside the adoption was untimely under Ark. Code Ann. § 9-9-216(b) (Repl. 1998), because it was not brought within one year from the date of the adoption decree. Although he does not argue that the warning order published in the local newspaper complied with the notice and service requirements in Rule 4 and Ark. Code Ann § 9-9-212(f) (Repl. 1998), he contends that Michael had actual notice of the adoption within one year from the date of the decree. Thus, Kevin asserts that once the one-year period expired, Michael was barred from challenging the adoption on any ground, including fraud and lack of notice.

We review probate proceedings de novo, but we will not reverse the decision of the probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001); Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id. Similarly, we review issues of statutory construction de novo, as it is for this court to determine what a statute means. Burch v. Griffe, 342 Ark. 559, 29 S.W.3d 722 (2000). Thus, we are not bound by the trial court’s construction; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. We begin our analysis of this appeal by viewing the relevant statutes.

Section 9-9-212 provides in pertinent part:

(a) Before any hearing on a petition, the period in which the relinquishment may be withdrawn under § 9-9-220 or in which consent may be withdrawn under § 9-9-209, whichever is applicable, must have expired. No orders of adoption, interlocutory or final, may be entered prior to the period for withdrawal. After the filing of a petition to adopt a minor, the court shall fix a time and place for hearing the petition. At least twenty (20) days before the date of hearing, notice of the filing of the petition and of the time and place of hearing shall be given by the petitioner to (1) any agency or person whose consent to the adoption is required by this subchapter but who has not consented; ....
(f) Notice shall be given in the manner appropriate under rules of civil procedure for the service of process in a civil action in this state or in any manner the court by order directs. Proof of the giving of the notice shall be filed with the court before the petition is heard. Where consent is not required, notice may be by certified mail with return receipt requested. [Emphasis added.]

Section 9-9-216(b) provides:

Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period. [Emphasis added.]

Kevin contends that because of the great need for finality in adoption cases, the one-year limitations period provided in section 9-9-216(b) outweighs any due process rights the natural parent may have where the parent has received actual notice of the adoption. Thus, Kevin asserts that even though Michael was not provided with legal notice, as required under section 9-9-212, he was nonetheless required to bring any challenge to the adoption by June 16, 1998, one year from the date that the decree was entered. Kevin’s entire argument is based on his contention that Michael had timely actual notice of the adoption. We disagree.

Notice of a petition for adoption must be provided in a timely manner to afford the natural parent an opportunity to be heard before any action is taken that would deprive the parent of his or her parental rights. This court recognized in McKinney, 287 Ark. 300, 698 S.W.2d 506, that such notice is a requirement of due process. There, the child’s father did not receive any prior notice of the adoption proceeding. In fact, he did not become aware of the adoption until more than a year after it had been finalized. The father subsequently filed a petition to set aside the adoption on the grounds that he had received no notice and that the child’s mother and purported adoptive parents had fraudulently concealed his name from the probate court' and made fraudulent statements regarding his status as the father of the child. The trial court dismissed the father’s petition, and this court reversed. While recognizing the importance of the considerations that led the legislature to create the one-year limitations period in section 9-9-216, this court concluded that such considerations did not outweigh the father’s fundamental right of due process. This court reasoned that “it would be a denial of due process of law for the courts to hold that the adoption decree is absolutely protected from challenge.” Id. at 302, 698 S.W.2d at 507.

The McKinney court relied primarily on the Supreme Court’s landmark decision in Armstrong v. Manzo, 380 U.S. 545 (1965), wherein the Court held that a natural father cannot be deprived of his parental rights without due process of law.

It is clear that failure to give the petitioner notice of the pending adoption proceedings violated the most rudimentary demands of due process of law. “Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

Id. at 550 (citations omitted) (emphasis added).

Kevin acknowledges the holdings in McKinney and Armstrong, but he argues that those cases are factually distinguishable from this case, because Michael had “actual notice” of the adoption within the one-year limitations period. We disagree with this argument. Kevin is confusing notice with knowledge. It is true that Michael had knowledge of the adoption within one year from the date of the decree, but not until his parental rights had been terminated through a final decree of adoption. Such knowledge after the fact is not notice as required by due process or our adoption statutes.

This point is well illustrated in Armstrong, wherein the Court rejected the notion that the failure to give the father notice as contemplated by the Constitution was cured by the subsequent hearing afforded to him on his motion to set aside the adoption. The Court based its determination on the fact that the burden of proof had shifted once the adoption had been granted. The Court explained that had the natural father received notice of the pending adoption, the adoptive parents, as the moving parties, would have had the burden of proving their case, as against whatever defenses the father may have raised. Instead, because he did not receive proper notice, the father bore the burden of trying to get the judge to set aside the adoption. The Court held:

A fundamental requirement of due process is “the opportunity to be heard.” It is an opportunity which must be granted at a meaningful time and in a meaningful manner. The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the case anew. Only that would have wiped the slate clean. Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.

Id. at 552 (citing Grannis v. Ordean, 234 U.S. 385, 394 (1914)).

Consistent with the Court’s holding in Armstrong, this court recognized in Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), that due process is not afforded where notice is given after a judgment has been entered. In that case, the child’s natural mother, Brenda Pender, attempted to set aside the adoption on the ground that she had not been properly served with notice prior to the adoption hearing. The evidence revealed that there were defects in the service of process. Notwithstanding, the undisputed evidence demonstrated that Brenda had been notified of the pending adoption prior to the time that the hearing was held. Because she had received actual notice of the pending adoption, this court rejected her argument that her due process rights had been violated:

The requirements of due process of law under [Armstrong, 380 U.S. 545,] were that she have notice reasonably calculated to apprise her of the pendency of the action and to afford her an opportunity to present her objections. These requirements of due process were met.
We have heretofore recognized that one who was apprised of the pendency of an action and aware of the nature of the relief sought before a judgment was rendered, was not entitled to have the judgment vacated, whether process was served on him or not.

Id. at 36-37, 582 S.W.2d 929, 938 (citation omitted) (emphasis added).

It is clear from the foregoing holdings that notice of a pending adoption must be provided to the child’s natural parents, when their consent is required, in a manner reasonably calculated to apprise them of the proceeding at a time prior to the entry of a judgment or decree. That was not done here. It is undisputed that Michael did not have knowledge of the adoption until after a final decree had been entered, which forever terminated his rights as James’s father. Knowledge that an adoption has already occurred is not the same as notice and an opportunity to be heard prior to parental rights being terminated. Because Michael was not provided with the kind of notice contemplated by section 9-9-212 and the due process requirements of both the United States and Arkansas Constitutions, the one-year limitations period provided in section 9-9-216(b) did not bar his petition to set aside the adoption.

In holding as we do in this case, we are not unmindful of the need for finality in adoptions and the strict construction that must be accorded the one-year limitations period in section 9-9-216. See In Re: Adoption of Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997); Martin v. Martin, 316 Ark. 765, 875 S.W.2d 819 (1994). We are, however, equally aware that the right of a natural parent to the custody of his or her child is “one of the highest of natural rights.” Olney v. Gordon, 240 Ark. 807, 811, 402 S.W.2d 651, 653 (1966) (quoting Woodson v. Lee, 221 Ark. 517, 521, 254 S.W.2d 326, 329 (1953) (quoting 2 C.J.S. Adoption of Persons § 57 [(1972)])). Due process requires, at a minimum, notice reasonably calculated to afford a natural parent the opportunity to be heard before his or her parental rights are terminated through adoption. Thus, before actual notice may be deemed an adequate substitute for the notice required by section 9-9-212 and Rule 4, it must be gained prior to the entry of the adoption decree. Knowledge after the decree is entered, even if it is gained within the one-year limitations period, will not suffice.

Finally, we cannot ignore the fact that for almost four years, since the summer of 1998, James has been in the custody of his natural father, Michael, and has lived with either Michael or Michael’s mother, Dorothy. Accordingly, the need for finality in this case does not weigh in favor of upholding the 1997 adoption decree. We thus affirm the probate court’s judgment in this matter.