author: Lavenski R. Smith, Justice.

text:
    Joe McCUTCHEN v. J. Fred PATTON et al.

    99-718
    10 S.W.3d 439
    Supreme Court of Arkansas
    Opinion delivered February 10, 2000

      Oscar Stilley, for appellant.

      Daily & Woods, P.L.L.C., by: Jerry L. Canfield and Leigh M. Chiles, for appellees.
   Lavenski R. Smith, Justice.

Appellant Joe McCutchen appeals a summary judgment entered by the Sebastian County Chancery Court dismissing his complaint. McCutchen filed suit against appellees J. Fred Patton, the City of Fort Smith, and Mayor Ray Baker. McCutchen alleged that the appellees illegally created a city agency and improperly appropriated city funds for use by that agency. The appellees contended in response that the entity in question, known as the “Multi-Ethnic Committee,” was not a department or other city agency comprehended within Ark. Code Ann. §14-48-124 (Repl. 1998). Jurisdiction lies with this court pursuant to Ark. Sup. Ct. R. l-2(a)(8). We affirm.

Facts

Sometime in 1998, Mayor Baker created and appointed members to an advisory committee identified as the “Multi-Ethnic Committee.” On December 28, 1998, appellant filed the instant action. The appellees responded by answer on January 15, 1999. Following their answer, the appellees filed a motion to dismiss supported by affidavits on January 20, 1999. Appellant filed a response to the dismissal motion and filed a cross-motion for summary judgment on his own behalf. The trial court treated appellees’ motion to dismiss as a motion for summary judgment and granted appellees’ motion by order entered March 4, 1999. Appellant timely filed a notice of appeal. On appeal, McCutchen contends that the trial court erred in its construction of Ark. Code Ann. §14— 48-124.

Standard of Review

The parties filed opposing motions for summary judgment and thus, in essence, agreed that there are no material facts remaining. Summary judgment, therefore, was an entirely appropriate means for resolution of this case. As we have oft stated, summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Mashburn v. Meeker Sharkey Financial Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law Ark. R. Civ. P. 56; Estate of R. Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (1999).

Committee as an Agency of the City

In that no facts are in question, the only issue is whether one party was entitled to judgment as a matter of law. The disposition of the case thus depends upon the meaning of Ark. Code Ann. § 14-48-124 [Creation of new departments, etc.] which controls the creation of “Departments, offices, employments, boards, authorities, commissions and agencies....” The statute provides, in pertinent part, as follows:

(a) (1) The board of directors may from time to time, by ordinance, create, reorganize, or abolish, except as provided in § 14-48-102, any municipal departments, offices, employments, boards, authorities, commissions, and agencies and fix the term of employment and compensation of each appointee.
(2) The city administrator, with the approval of the board, shall appoint the personnel to serve in the departments, offices, employments, boards, authorities, commissions, and agencies.
(b) (1) The board also in the exercise of its discretion, by ordinance, may consolidate the office of the city treasurer with the office of the city clerk or such other department, office, or position as the board, by ordinance, may charge with the responsibility of administering the financial affairs of the city.

Appellant contends that the statute applies to the Multi-Ethnic Committee. Appellant asserts that the mayor could not lawfully create the committee because subsection (a) of the statute only authorizes the city board of directors, by ordinance, to establish new subdivisions of city government.

We have not previously interpreted this statute. When interpreting a statute we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Green v. Mills, 339 Ark. 200, 5 S.W.3d 493 (1999). In order for the statute to apply to the Multi-Ethnic Committee, the committee must be shown to constitute a subdivision of city government listed in subsection (a)(1).

Based on the proof submitted below, we hold that the trial court correctly granted appellees’ motion for summary judgment. The evidence, even when viewed in a light most favorable to the appellant, shows that the committee is not an entity covered by this statute. Appellees submitted affidavits of Kara Bushkuhl, Ray Baker, Cynthia Remler, and a copy of City Board Resolution No. R-10-99 attached to their motion to dismiss. Bushkuhl, Director of Finance for the City of Fort Smith, stated that the Board of Directors appropriated $20,000 related to the Multi-Ethnic Committee but that neither the mayor nor any other appellee had authority to authorize the expenditure of the funds. Mayor Baker stated that he has on other occasions sought input from citizens through advisory committees including the “Community Crime Task Force,” and the “Water Supply Task Force.” He stated that the Board of Directors were advised of the committee as early as 1995. He indicated that the committee is an advisory group intended to give citizen input on health, safety, and welfare issues related to multiple ethnic groups. City Board Resolution No. R-10-99 acknowledged and commended the mayor for seeking community input. It further stated that no funds had been expended nor was there any “currently identified project for the expenditure of the appropriated funds.”

In response, the appellant submitted no affidavit, document, discovery response, or other proof but relied entirely upon, legal argument and conjecture based upon the appellees’ factual submissions and appellant’s interpretation of subsection (a)(1). The appellant failed to provide any evidence that the Multi-Ethnic Committee constituted anything other than a mere citizen advisory group with no authority to officially act on behalf of the city or expend its resources. Given the undisputed facts, we cannot say the trial court erred in granting appellees’ motion for summary judgment.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sonny EADS and Viki Lynn Eads v. Bill (Rick) HALL; Jeanita Ives; Laura Bohannon; and Joyce L. Lindsey d/b/a Century 21 Southgate Realty
    99-1247
    10 S.W.3d 441
    Supreme Court of Arkansas
    Opinion delivered February 10, 2000

      J. Hudson Shepard, for appellants.

      Davis, Cox & Wright, PLC, by: Mark W Dossett, for appellees.
   PER CURIAM.

The appellees, who are Bill (Rick) Hall, Jeanita Ives, Laura Bohannon, and Joyce L. Lindsey d/b/a Century 21 Southgate Realty, move this court for costs and attorney’s fees pursuant to Ark. R. App. P. — Civil 11. The history of this matter reveals that the appellees’ motion to dismiss the appellants’ appeal was granted on November 11, 1999, and the mandate was issued to the parties. On December 30, 1999, appellants moved this court for a rule on clerk to have their appeal accepted. This court denied that motion on January 20, 2000. On January 6, 2000, which was prior to this court’s denial of that motion, the appellees moved for attorney’s fees and costs under Appellate Rule 11 on the basis that the appellants’ motion for rule on clerk was frivolous. The appellants tendered their response on January 27, 2000, but offer no defense to the allegation that the motion for rule on clerk regarded a matter already decided by this court. Because the response was filed within twenty-one days of the motion, it was timely filed under Ark. R. App. P. — Civil 11(d), and we accept it as filed.

Rule 11 (d) of our Rules of Appellate Procedure — -Civil does provide for sanctions, including attorney’s fees, when a pleading, motion or other paper is signed by an attorney and is not well grounded in fact or warranted by existing law or made in good faith. Under the rule, this court shall impose sanctions under the following circumstances:

(b) The Supreme Court or the Court of Appeals shall impose a sanction upon a party or attorney or both for (1) taking or continuing a frivolous appeal or initiating a frivolous proceeding, (2) filing a brief, motion, or other paper in violation of subdivision (a) of this rule, (3) prosecuting an appeal for purposes of delay in violation of Rule 6-2 of the Rules of the Supreme Court and Court of Appeals, and (4) any act of commission or omission that has an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. For purposes of this rule, a frivolous appeal or proceeding is one that has no reasonable legal or factual basis.

Ark. R. App. P. — Civil 11(b).

Unlike Ark. R. Civ. P. 11, which provides for sanctions under comparable circumstances before the trial court, Appellate Rule 11 does not require a twenty-one day safe-harbor period during which the offending writing may be withdrawn by opposing counsel.

We grant the motion for costs and attorney’s fees. When the motion to dismiss the appellants’ appeal was before this court, the timeliness of their notice of appeal and the filing of the record were precisely the issue. The appellants have offered no explanation for why they filed a motion for rule on clerk for us to accept the record for appeal purposes after their appeal had been dismissed and the mandate handed down.

Accordingly, we conclude that the appellants’ motion is frivolous in that it is not well grounded in fact or warranted by existing law and, as a result, attorneys’ fees and costs should be awarded. See Jones v. Jones, 329 Ark. 320, 947 S.W.2d 6 (1997) (per curiam). Also, by filing the motion there has been a needless increase in the cost of litigation to the appellees. Id.

The appellees are directed to furnish this court with information relating to actual costs and expenses, including reasonable attorneys’ fees. Upon receiving the same, this court will award appropriate costs and attorney’s fees.


author: WH. “Dub” Arnold, Chief Justice.

text:
    Vernon WOODALL v. HUNNICUTT CONSTRUCTION; Employer’s Insurance of Wausau, Carrier
    99-858
    12 S.W.3d 630
    Supreme Court of Arkansas
    Opinion delivered February 17, 2000

      Daniel E. Wren, for appellant.

      Michael E. Ryburn, for appellees.
   WH. “Dub” Arnold, Chief Justice.

This case is before us on petition for review from the Arkansas Court of Appeals, pursuant to Ark. Sup. Ct. R. l~2(e). Vernon Woodall appealed the Workers’ Compensation Commission’s denial of benefits to him, arguing on appeal that (1) there is no substantial evidence to support the Commission’s decision and (2) the fact that appellant’s co-worker was not injured is not evidence of appellant’s impairment. The Court of Appeals agreed with appellant’s arguments and reversed and remanded for an award of benefits in Woodall v. Hunnicutt Constr., 67 Ark. App. 196, 994 S.W.2d 490 (1999).

Appellee, Hunnicutt Construction, then petitioned this Court for review, contending that the Court of Appeals erred in using the wrong standard of review and in substituting its own judgment on credibility for the Commission’s decision on credibility. Appellee asserts that the Court of Appeals, by its holding, created an exception for future drug-intoxication cases. We granted appellee’s petition for review pursuant to Ark. Sup. Ct. R. l-2(e). We agree with appellee that the Court of Appeals should be reversed, and we affirm the Workers’ Compensation Commission’s denial of benefits to appellant.

Standard of Review

Upon a petition for review, we consider a case as though it had been originally filed in this Court. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Id.; Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Pickett, 336 Ark. 515, 988 S.W.2d 3; ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

Facts and Procedural History

On June 5, 1997, while assisting in the construction of a roof, appellant fell when a scaffold collapsed. Appellant, a thirty-seven-year-old carpenter, sustained bilateral calcaneal fractures to both of his heels as a result of the fall. When appellant went to the emergency room for treatment, his urine sample was tested for the presence of illegal drugs. That screen showed the presence of cocaine metabolites. At the hearing on December 16, 1997, appellant admitted that he had smoked a rock of crack cocaine at approximately 6 p.m. the night before the accident.

Appellant testified that he and his co-worker, James Summerhill, were in the process of framing a house on June 5, 1997. According to appellant’s testimony, he told Summerhill to put together scaffolding so that they could “fly the ridge” and proceed in putting the roof together. Appellant testified that he did not check the scaffolding to make sure Summerhill had built it strong enough to support appellant’s weight because Summerhill has “always built good scaffolding and we never had ... problems.”

Summerhill testified that he had nailed down one side of the scaffolding to the wall but not the other side when appellant, who was Summerhill’s supervisor, said it would be all right. At that point, appellant and Summerhill proceeded to “fly the ridge.” Summerhill testified that, in his opinion, he felt it was safe to do. When the board that the two workers were standing on fell off the scaffolding, appellant fell down to the ground, but Summerhill, being on the other side of the board, was thrown up eleven feet. Summerhill was thrown to the roof, where he landed uninjured.

In reversing the Administrative Law Judge’s finding that appellant had rebutted the presumption set out in Arkansas Code Annotated § ll-9-102(5)(B)(iv) (Repl. 1996), the Commission found that, on de novo review of the testimony, it believed that appellant failed to prove by a preponderance of the credible evidence that his accident and injury were not substantially occasioned by the use of cocaine. The Commission stated that the greater weight of the credible evidence established that appellant’s accident was attributable to his impaired judgment. The Commission opined that appellant’s “actions of climbing up on the scaffolding which was not nailed down on his end was a sheer disregard for his own personal safety which strongly suggests impairment resulting from drug use.”

Merits of the Case

Arkansas Code Annotated § ll-9-102(5)(B)(iv)(b) provided that “The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.” Whether the rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996). Further, when reviewing findings of fact made by the Workers’ Compensation Commission, the appellate court must affirm if the Commission’s decision is supported by substantial evidence. Id.

Again, on appellate review of workers’ compensation cases, the Supreme Court veiws the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. White v. Georgie-Pacific Corp., supra. When, as here, the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief.

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Id.

Again, whether the rebuttable presumption previously set out in Ark. Code Ann. § 11-9-102(5) (B)(iv)(b) (and currently set out in Ark. Code Ann. § ll-9-102(4)(B)(iv)(b) (Supp. 1999)) is overcome by the evidence is a question of fact for the Commission to determine. See Weaver, supra. Further, it is the function of the Commission to determine the credibility of the witnesses and the weight to be given to their testimony. When, as here, the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief.

There is no question in this case that substantial evidence existed for the Commission to deny relief. Unlike many of the drug-intoxication workers’ compensation cases, there is no question in this case whether the claimant did or did not have the presence of an illegal drug in his blood. He both readily admitted smoking crack cocaine the night before the incident and admitted that he tested positive for a drug screen on the date of the accident. This automatically raises the presumption that drugs were the cause of the accident and placed the burden on the injured employee to prove that they were not.

Because our standard of review is whether reasonable men could have reached the same conclusion as the Commission, this case must be affirmed. The Court of Appeals reasoned that because appellant’s co-worker, Mr. Summerhill, chose to climb on the rickety scaffolding when he was not under the influence of drugs, then the Commission’s finding that appellant’s decision to do the same was illogical because he was under the influence of drugs, is indicative of “inconsistent logic” on the part of the Commission. In fact, it is not indicative of inconsistent logic, but is in fact quite logical. The claimant was Mr. Summerhifl’s supervisor, and had in fact directed Mr. Summerhill to cease nailing the scaffolding, stating that it would be “all right.” Regardless of the claimant’s presence of mind, Mr. Summerhill was under his direction.

The bottom line is that the appellant was on a rickety scaffolding and had drugs present in his bloodstream. He fell and was injured. The only question we need address is whether the accident could have happened because of the use of illegal drugs. The answer is, of course, that it could have happened just the way the Commission found. Because of the presumption created by former Ark. Code Ann. § ll-9-102(5)(B)(iv)(b), regarding drug use of the injured worker, which the Commission determined appellant failed to rebut, coupled with this Court’s standard of review in workers’ compensation cases wherein we do not hear the case de novo, but rather affirm the Commission’s decision if reasonable men could have reached the same conclusion as the Commission, we must affirm the Commission’s denial of benefits to appellant, thereby reversing the Court of Appeals decision in Woodall v. Hunnicutt Constr., 67 Ark. App. 196, 994 S.W.2d 490 (1999).

Affirmed.


author:
TOM GLAZE, Justice.
      Robert L. Brown, Justice, ANNABELLE CLINTON Imber, Justice,

text:
    Teddy GRAHAM v. Larry NORRIS, Director, Arkansas Department of Correction
    98-1124
    10 S.W.3d 457
    Supreme Court of Arkansas
    Opinion delivered February 17, 2000

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Darnisa Evans Johnson, Sr. Ass’t Att’y Gen., for appellee.
   TOM GLAZE, Justice.

This appeal represents the last in a trilogy of cases in which inmates contend they were unlawfully denied meritorious good time when the General Assembly enacted what Teddy Graham contends to be ex post facto legislation. Duncan v. State, 337 Ark. 306, 987 S.W.2d 721 (1999); Ellis v. Norris, 333 Ark. 200, 968 S.W.2d 609 (1998). Our court took jurisdiction of this case to interpret certain Arkansas acts and statutes that deal with prisoners’ meritorious good time and to determine if those laws, or the State’s application of them, have violated Arkansas’s or the United States’ Ex Post Facto Clauses. Ark. Sup. Ct. R. 1 — 2(b).

In June of 1986, appellant Teddy Graham was convicted of aggravated robbery and of being a felon in possession of a firearm and given a forty-year sentence. While serving his sentence, Graham was transferred pursuant to the Interstate Corrections Compact (Ark. Code Ann. § 12-49-101 (Repl. 1999)) to the Ellis County Jail in Arnett, Oklahoma; during his confinement there, he performed volunteer work authorized under Ark. Code Ann. §12-30-408 (1987). Before its repeal, § 12-30-408 provided that inmates who engaged in volunteer work shall earn an additional day of meritorious good time for every day engaged in the volunteer time. (Emphasis added.)

Section 12-30-408, the law under which Graham earned 544 days of meritorious good time, was repealed in 1989 by Act 503. That Act reads as follows:

SECTION 1. Arkansas code 12-30-408 is hereby repealed.
SECTION 4. Emergency. It is hereby found and determined by the General Assembly that Arkansas Code 12-30-408 establishes good time credit for contractual and volunteer work by inmates at a higher rate than is provided for job assignments within the Department of Correction; that this law creates inequities that are detrimental to the overall operations of the Department of Correction; that Arkansas Code 12-29-202 makes adequate provision for good time awards; and that this Act should be given immediate effect in order to clarify the law as soon as possible.

Although § 12-30-408 had been repealed in 1989, Graham performed and accumulated 544 days of volunteer work at the Oklahoma facility during the period between February 1, 1995, and July 29, 1996. Graham claimed entitlement to these days under § 12-30-408 because that statute was in effect at the time he committed the crimes for which he was convicted in 1986. Sometime in 1996, he first petitioned the Arkansas Records Supervisor of the Diagnostic Unit to credit his records with 544 days of meritorious good time. This request was denied, and his next request was again rejected by the warden of the unit. Graham’s request was finally denied by the Assistant Director of Institutional Services on the grounds that § 12-30-408 had been repealed.

On January 9, 1998, Graham filed a petition for declaratory judgment and writ of mandamus in the Jefferson County Circuit Court' where he claimed the 544 days in good-time credit, and contended that Act 503, which repealed § 12-30-408, violated the Ex Post Facto Clauses of the Arkansas and United States Constitutions. On June 29, 1998, the circuit court denied Graham’s claims for relief because the good-time credit he sought resulted from a program which was available to an inmate at the State’s discretion and was thus not mandatory. For this reason, the trial court held that the State’s withdrawal of that volunteer-work program and good time did not violate the Ex Post FartoClauses.

In this appeal, Graham continues his argument that Act 503 violated the Ex Post Facto Clauses because its retroactive application worked to his disadvantage by extending his period of confinement before he is eligible for release or parole and by increasing his punishment. He also cites Ark. Code Ann. § 16-93-607(4) (1987), and submits this statute mandates that he must serve three-fourths of his sentence, with credit for good-time allowances, before he can be released on parole. Section 12~30-408’s repeal, he argues, eliminated his ability to reduce his maximum term.

Graham’s arguments are almost identical to the ones we dealt with in our recent Ellis and Duncandecisions. In Ellis, the prisoner challenged as ex post facto Acts 536 and 558 of 1993, which repealed “good-time allowances” provided in Act 273 of 1987. Act 273 permitted prisoners extra good time when they completed rehabilitative programs or performed special jobs. Prisoner Ellis premised his constitutional argument on the case of Weaver v. Gra ham, 450 U.S. 24 (1981), where the Supreme Court pointed out that “two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver, 450 U.S. at 29. Our court rejected Ellis’s arguments, but, in doing so, distinguished' Weaver from Ellis’s situation because the Weaver case dealt with automatic good time, rather than the discretionary good time Ellis would earn under Arkansas’s law. In disposing of Ellis’s arguments, our court further discussed the Supreme Court’s more recent case of California Department of Corrections v. Morales, 514 U.S. 499 (1995). There, the Supreme Court observed that its language in the Weaver opinion was inconsistent with its decision in Collins v. Youngblood, 497 U.S. 37 (1990), and in a footnote the court stated the following:

Our opinions in Lindsey, Weaver and Miller suggested that enhancements to the measure of criminal punishment fall within the ex post facto prohibition because they operate to the “disadvantage” of the accused offenders, [citations omitted] But that language was unnecessary to the results of those cases and is inconsistent with the framework developed in Collins v. Youngblood, [citation omitted] [emphasis added]. After Collins the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of “disadvantage,” nor, as the dissent seems to suggest, on whether an amendment affects a prisoner’s “opportunity to take advantage of early release,” [citation omitted], but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.

We considered the foregoing language in our Ellis case and interpreted it as follows:

We think a fair interpretation of this footnote is that it was not a disadvantage in the form of the lost opportunity to reduce the prison sentence that was dispositive in Weaver. Rather, it was the fact that a reduction in the amount of good time that was automatically awarded operated to increase the length ;of time Weaver would be in prison. In other words, the disadvantage suffered by Weaver, in the form of an increase in the punishment for his crime, is within the scope of the Ex Post Facto Clause. Consequendy, Weaver is not helpful to Ellis unless the repeal of “extra good time” actually operates to increase his sentence, rather than merely remove his opportunity to reduce his time in prison. We hold that it does not.

Ellis, 333 Ark. at 205, 968 S.W.2d at 611-12.

In' conclusion, the Ellis court stated that Act 273 of 1987 provided that “the director may recommend ... good time awards” for completing rehabilitation programs and special jobs, and by performing such acts, a prisoner had the opportunity to add to the meritorious good time he has earned automatically. We further held in Ellis that when Act 273 was repealed in 1993, all that was lost was the opportunity to earn discretionary good time which was not violative of the Ex Post Facto Clauses. In Duncan, 337 Ark. 306, 987 S.W.2d 721 (1999), we reached the same decision on almost identical facts.

- Graham argues that, while the good-time credits provided in the Ellis and Duncan cases may be discretionary under Act 273, the extra good time earned here under § 12-30-408 is mandatory, not discretionary. Graham cites to the language in § 12-30-408, which in relevant part, provides as follows:

Inmates who engage in volunteer work by contractual agreement with state departments, agencies, counties, school districts, civic organizations, and other non-profit organizations, shall earn an additional day of meritorious good time for every day engaged in volunteer work. (Emphasis added.)

Relying on the above provision, Graham urges that an inmate’s good time earned under § 12-30-408 is mandatory and not discretionary, and as such, Act 503’s repeal of § 12-30-408 operates as an ex post facto law which deprives him of 544 days’ credit earned under the statute. We disagree.

As we pointed out in Ellis, an inmate, whether under Arkansas’s prior special programs provided in Act 273 or § 12-30-408 before their repeal, had the opportunity to add meritorious good time to that which he had earned automatically. However, it is clear from the wording of those laws that the time earned and awarded was at the discretion of the Director. Ellis, 333 Ark. at 206, 968 S.W.2d at 612.

In the present case, when Arkansas’s volunteer work program was authorized under § 12-30-408, other related statutes and regulations were in effect that explained the discretionary nature of the good time earned by a prisoner under such a program. For example, Ark. Code Ann. § 12-30-401 (1987) prescribed that inmates committed to the Department of Correction for institutional care be required to participate in the various work programs and may be afforded vocational training and rehabilitative opportunities in accordance with the rules, regulations, and procedures promulgated by the Director, with the approval of the Board of Correction. The Board’s regulation bearing on meritorious good time when § 12-30-408 was law stated as follows:

Meritorious Good Time is not something to which an inmate is entitled as a matter of right, but is awarded in proportion to his good discipline, good behavior, work practices, and job responsibilities. (Emphasis added.) Department of Correction Regulation 826.

The foregoing regulation was promulgated pursuant to Act 50 of 1968, as amended, which encompassed the laws that established the volunteer work and meritorious good time provided under § 12-30-408. Also consistent with the discretionary nature of Arkansas’s laws providing for extra or meritorious good time was Ark. Code Ann. § 12-29-201 (1987), which was in effect when § 12-30-408 was law. Section 12-29-201 provided (and still provides) that an inmate may be entitled to a reduction, to be known as “meritorious good time” from his maximum term and parole eligibility date of up to thirty days for each month served in one of the institutions maintained by the Department of Correction.

In sum, Graham’s situation, while involving a different statute, § 12-30-408, is controlled by the same analysis and rationale we expressed in our holdings in Ellis and Duncan. When the General Assembly passed Act 503 to repeal § 12-30-408, Graham merely lost what was the opportunity to earn discretionary good time towards the reduction of his prison sentence. Therefore, we agree and affirm the trial court’s ruling that such a lost opportunity did not violate the Ex Post Facto Clauses.

Brown and Imber, JJ., concur.

Robert L. Brown, Justice,

concurring. I do not disagree with the majority’s analysis. However, there is one other factor in this case that distinguishes it from Duncan v. State, 337 Ark. 306, 987 S.W.2d 721 (1999) (per curiam), and Ellis v. Norris, 333 Ark. 200, 968 S.W.2d 609 (1998) (per curiam). Graham was serving time in the Bilis County Jail in Oklahoma under the Interstate Compact. Six years after the Arkansas statute authorizing meritorious good time for volunteer work was repealed, Graham began doing volunteer work in Oklahoma for the city, county, and school district. See Ark. Code Ann. § 12-30-408 (1987) (referred to as Act 309), repealed by Act 503 of 1989. As his supervisor in the county jail pointed out by affidavit, Graham was not required to work but did so voluntarily. The record does not reflect that the Arkansas Department of Correction was aware of Graham’s volunteer work. In fact, during Graham’s subsequent grievance proceeding in 1997, Warden Harris denied relief because “No Act 309 shows at anytime.”

The Arkansas Department of Correction should not be held responsible for volunteer work done in Oklahoma, which was not done under its auspices or rules or with its blessing. It is quite a stretch in my judgment for Graham to argue that Arkansas enhanced his punishment by denying this good time, when Graham was performing the volunteer services unbeknownst to the Department.

I concur for the reasons stated by the majority but also for this additional reason.

ANNABELLE CLINTON Imber, Justice,

concurring. I agree with the majority’s holding, but write only to point out a difference between the present case and the cases of Ellis and Duncan. The statute at issue in Ellis and Duncan, Act 273 of 1987, provided that meritorious good time could be awarded at the discretion of the Director if a prisoner, among other things, completed rehabilitative programs or performed other special jobs. The statute at issue here provides that inmates who are engaged in volunteer work “shall earn an additional day of meritorious good time for every day engaged in volunteer work.” Although the language of section 12-30-408(a) appears mandatory, nothing in the statutory scheme suggests that an inmate will automatically be entitled to or qualify for the opportunity to engage in a volunteer-work program. Rather, an inmate’s opportunity to engage in a volunteer work program is solely at the discretion of the Department of Correction. Therefore, by repealing § 12-30-408, Mr. Graham only lost the opportunity to earn discretionary good time toward the reduction of his prison sentence. For this reason, I agree with the trial court that the State’s withdrawal of the volunteer work program and good time did not violate the Ex Post Facto Clauses in the Arkansas Constitution and the United States Constitution.

       Now appears at Ark. Code Ann. § 12-30-401 (Repl. 1999).

       Now recodified with other provisions at Ark. Code Ann. § 12-29-201 (1999). The recent codification reflects changes the General Assembly made in 1993 by Acts 536 and 558 which, among other things, clarified that meritorious good time will not be applied to reduce the length of a sentence See § 12-29-201(c).


author: TOM GLAZE, Justice.

text:
    Larry JONES v. STATE of Arkansas
    CR 99-630
    10 S.W.3d 449
    Supreme Court of Arkansas
    Opinion delivered February 17, 2000

      Bart E. Ziegenhorn, Deputy Public Defender, for appellant.

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

Larry Jones was convicted on three counts of capital murder for the deaths of his wife, Sandra Jones, and her two sons, Courtney Jones, 17, and Daron Davis, 10. For his wife’s murder, Jones was sentenced to life in prison without possibility of parole; for the murders of the two boys, Jones received two sentences of death by lethal injection. We take jurisdiction pursuant to Ark. Sup. Ct. R. 1-2 (a) (2). On appeal, Jones raises seven points for reversal, but because we find that none of them has merit, we affirm.

Because Jones does not challenge the sufficiency of the evidence, we summarize the facts briefly. Sandra Jones spent the evening of April 10, 1998, at the house of her brother-in-law, Gary Jones, visiting and drinking with several friends. She left for home shortly after 10:30 that night. About two hours later, Larry Jones showed up at Gary’s house; Larry told his brother he had “just killed all three of them.” Larry asked his brother to come back to his house with him and to provide him with an alibi. On the way back to Larry’s house, he told Gary that Sandra had come home and taken a bath; while she was bathing, he claimed he inspected her underwear and found “some discharge” in them.

Larry Jones later gave the police a different story, stating Sandra came into the bedroom, woke him up, and told him that she wanted to break up with him. When he asked why, she allegedly said that she had been unfaithful to him and threw a pair of panties in his face. During their conversation, Jones had been “fixing on” a stack of videotapes with a butterfly knife. As Sandra continued to taunt him about her infidelity, Jones said, he hit her. “I thought I was hitting her with my right hand ... the hand I had my butterfly knife in. I hit her twice. I thought I was hitting her in the face area, but it turned out that I hit her twice in the neck.” Sandra died of a single slicing stab wound that penetrated four and a half inches through her neck.

Jones further claimed that the two boys came in while he and Sandra were fighting and that he only swung at them to push them away from him. Courtney died in the kitchen, having been struck twice with the knife; his right carotid artery was severed with a blow that sliced approximately four and three-eighths inches through his neck. Daron, whose body was found on the floor next to his bed in the front bedroom, sustained four wounds; his jugular vein was cut, and the muscles that supported his larynx were severed. Gary Jones later testified that it looked like “his throat was almost cut off.”

Larry Jones opened a window in a back bedroom, and then called the police to report that someone had broken into his house and murdered his family. When the police arrived, Gary Jones told them that his brother had confessed to the killings. Larry was arrested, given his Miranda warnings, and taken to the police station.

Following a jury trial in February of 1999, Jones was convicted on all three counts of capital murder. The jury found that four aggravating circumstances existed and no mitigating factors were present; thus, they sentenced Jones to death for the murders of Courtney Jones and Daron Davis and to life in prison for the murder of Sandra Jones.

For his first point on appeal, Jones argues that the trial court erred in granting the prosecutor’s motion to suppress evidence that an autopsy report showed Sandra Jones to have cocaine in her bloodstream. In its motion, the State asserted that the finding of cocaine was not relevant to the cause of death, and would be extremely prejudicial. The defense responded that the evidence could be probative of the issue of whether or not Sandra was likely to have provoked Jones to react as he did. The trial court granted the motion before the trial began, agreeing that the cocaine evidence would be more prejudicial than probative, and noting that there was nothing to show that the cocaine had anything to do with the confrontation. However, the court said that if, during the trial, any proof to that effect was shown, he would reconsider his ruling.

No such proof was adduced at trial, and as the court considered the likely effect that the evidence would have on the jury, it reiterated several times that it would be highly prejudicial. The court offered Jones the opportunity to introduce the less inflammatory evidence that Sandra had a blood-alcohol content of .13% in order to support his theory that she was acting aggressively and provoked him; however, he declined to do so.

Although all relevant evidence is admissible, Ark. R. Evid. 402, even relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. Ark. R. Evid. 403; Smith v. State, 33 Ark. App. 37, 801 S.W.2d 655 (1990). Trial courts have broad discretion in deciding evidentiary issues, including the admissibility of evidence under Rule 403, and those decisions will not be reversed absent an abuse of discretion. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).

In this instance, we can find no abuse of discretion in the trial court’s decision. No evidence was ever introduced to show that the cocaine was linked to the murder. Indeed, it was Sandra’s alleged infidelity, not her use of cocaine, that led to the altercation between her and Jones. Because the defense was unable to show that the cocaine use prompted the killing, the trial court did not err in ruling that the probative value of the evidence was far outweighed by its prejudicial nature.

The defense also attempted to introduce the cocaine usage in response to the prosecution’s introduction of character evidence. During the trial, when the last of three witnesses testified that Sandra was a “good, sweet, nice person,” Jones finally objected to such testimony and asked to be allowed to cross-examine the witness about the cocaine. The trial court sustained the objection and refused to permit this line of questioning, admonishing the prosecutor that he was putting Sandra’s character into issue. While Jones argued that the State had “opened the door” to allowing the cocaine evidence, the trial court stood on its earlier ruling that the probative value of this evidence was outweighed by the danger of prejudice.

On this point, we first note that Jones did not object to the first two witnesses who testified as to Sandra’s character. We have frequently held that a contemporaneous objection must be made to the trial court before we will review an alleged error on appeal. State v. Donahue, 334 Ark. 429, 978 S.W.2d 748 (1998). Thus, this argument is procedurally barred.

Finally, we note that even if the trial court erred in its decision to exclude this evidence, the error was harmless in light of the overwhelming evidence of Jones’s guilt. See Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1994). Jones confessed the killings to his brother and attempted to use his brother to create an alibi for himself. He lied to the police when they began to question him, telling them that he came home and found the bodies. He only admitted to the murders after the police informed him that his brother had given them a differing version of the evening’s events. In addition, there was overwhelming evidence that Jones acted with premeditation and deliberation, and not out of a sudden rage provoked by Sandra. He told his brother that he had inspected Sandra’s panties while she took a bath, contradicting his story to the police that she had thrown them at him. Evidence showed that Daron was killed in his bed, and that Courtney was attacked in the kitchen as he entered the house later in the evening. In light of this evidence, the trial court’s decision to exclude evidence of Sandra’s cocaine use cannot be said to be reversible error.

For his second point on appeal, Jones contends that the trial court erred in admitting five photographs of the crime scene. Three photos showed Daron’s body (two full-length shots and one closeup of his face), one showed Courtney’s face and wounds, and one depicted Sandra’s face and wounds. Jones objected to these photographs at trial on the basis that they were gory, inflammatory, and did not accurately depict the scene. This last point arose from the fact that one police officer testified that he was certain that he found Daron’s body on his bed, but the photo showed the boy’s body lying on the floor.

The prosecutor responded that although the photos were gruesome, they helped establish the premeditated and deliberate nature of the crime and, because they demonstrated that all three victims suffered from similar lethal neck wounds, refuted Jones’s theory that he had accidentally hit the victims as they struggled. The trial court overruled Jones’s objection and allowed the photos into evidence.

On appeal, Jones now argues that the introduction of the photographs was in error because they were cumulative and unduly prejudicial. However, Jones did not raise the cumulative argument below, and therefore, that point is not preserved. See Tabor v. State, 333 Ark. 439, 971 S.W.2d 227 (1998). As for his second contention, that the photos were prejudicial, we restate the following general rules with which we comply when dealing with the admissibility of photographs.

This court has often stated that the admission and relevancy of photographs is a matter within the sound discretion of the trial court, and the mere fact that photos are inflammatory will not render them inadmissible. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). Even the most gruesome photos may be admissible if they tend to shed some light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of the case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Jones v. State. 329 Ark. 62, 947 S.W.2d 339 (1997). Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Id.

Greene v. State, 331 Ark. 1, 26, 977 S.W.2d 192 (1998); see also Camargo v. State, 327 Ark. 631, 940 S.W.2d 631 (1997).

Here, the photos were introduced not for shock value, but to show the premeditated and deliberate nature of the murders. In addition to proving a necessary element of the crime, they also showed the condition of the bodies and the locations of the injuries. The trial judge engaged in the kind of balancing required under Rule 403, and he did not abuse his discretion in allowing the photographs to be admitted.

Jones’s third point on appeal is that the introduction of victim impact evidence was reversible error. He contends that the testimony from the victims’ families was not relevant to any aggravating factor and violated his Fifth, Sixth, and Fourteenth Amendment rights. While Jones asks this court to reconsider our prior rulings on this subject, he provides us with no compelling reason to do so. Ark. Code Ann. § 5-4-602(4) (Repl. 1997) specifically allows the State to introduce victim impact evidence during the sentencing phase of capital murder trials, and we have repeatedly upheld the constitutionality of this statute. See Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999); Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996).

For his fourth point, Jones argues that the trial court erred in submitting both of the following aggravating factors: Ark. Code Ann. § 5-4-604(4) (Repl. 1997), that the defendant caused the death of more than one person in the same criminal episode, and Ark. Code Ann. § 5-4-604(5) (Repl. 1997), that the murders were committed for the purpose of avoiding or preventing arrest. He contends that the mere fact that he committed more than one murder does not necessarily lead to the conclusion that the later ones were committed in order to avoid being arrested.

However, we have held that whenever there is any evidence of an aggravating or mitigating circumstance, however slight, the matter should be submitted to the jury for consideration. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996). On appellate review of a finding of an aggravating circumstance, the question is whether there was substantial evidence to support the jury’s finding that the aggravating circumstance was proven beyond a reasonable doubt. Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998). The sufficiency of the evidence is reviewed in the light most favorable to the state. Kemp, 324 Ark. at 200.

Although Jones contended at trial that he killed the two boys accidentally, forgetting there was a knife in his hand when he swung at them in a rage, the State presented evidence that Jones killed Daron in his bed and killed Courtney later as the boy entered the house. Both boys were murdered after Sandra was killed. They were the only potential witnesses to the murder of Sandra, and the killing of both boys would further Jones’s alibi that an intruder broke in and murdered all three victims. In addition, the nature of their wounds does not support an inference that Jones accidentally hit them with the knife when he was trying to fend them off. Viewing this evidence in the light most favorable to the state, as we must, there was substantial evidence not only to warrant submitting this aggravating factor to the jury, but also to support the jury’s finding that this factor existed beyond a reasonable doubt.

Jones also argues that these two aggravating factors are inconsistent and mutually exclusive, although he offers no law in support of this proposition. Ark. Code Ann. § 5-4-602(4) (Repl. 1997), however, allows the jury to consider evidence as to any matter relating to the aggravating circumstances enumerated in § 5-4-604; additionally, the jury may consider any aggravating circumstance for which there is the slightest evidence, although it must be convinced beyond a reasonable doubt that the circumstance exists. Willett, 335 Ark. at 435-36. Here, there was clearly evidence to support the submission of both aggravating factors, and the trial court did not err in submitting them simultaneously.

Jones’s fifth argument on appeal is that there was insufficient evidence to support the submission of Ark. Code Ann. § 5-4-604(8) ■— that the murder was committed in an especially cruel or depraved manner — as an aggravating factor. We need not discuss this sufficiency-of-the-evidence argument, because even if the evidence failed to support the conclusion that Jones committed the murders in a cruel or depraved manner, such an insufficiency would be harmless error because the jury found no mitigating factors existed. We conduct a harmless error review as follows:

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 ... Court shall conduct a harmless error review of the defendant’s death sentence. The ... 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.

Ark. Code Ann. § 5-4-603 (d) (Repl 1997).

The jury in Jones’s case found four aggravating circumstances existed: 1) he had committed prior violent felonies; 2) the murders were committed for the purpose of avoiding or preventing arrest; 3) the commission of the murders caused the death of more than one person in the same criminal episode; and 4) the murders were committed in an especially cruel or depraved manner. Even striking this fourth factor, three factors remain, each of which, standing alone, would justify the imposition of a death sentence in the absence of any mitigating factors. Thus, any error by the trial court in submitting this aggravating circumstance to the jury would be harmless, and this point does not present a ground for reversal.

For his sixth argument on appeal, Jones contends that the prosecutor made a veiled reference to Jones’s failure to testify during his closing argument, and the trial court erred in denying his motion for a mistrial on that point. During his own closing argument, Jones again asserted his theory that the crime was committed in the heat of passion and that he had only been provoked by his wife’s statements of infidelity: “These are things that would incite any husband. What were the things this couple was doing ten days earlier? Do they hate each other so much that this guy was planning to kill her ten days before? No. ... They had been off on an over-the-road truck trip.... They came home, cleaned up, and had relations. They were living like any other normal family would be living.”

In response, the prosecutor made the following statement: “He talks about his loving wife. Why would Larry Jones do this to his loving wife? What remorse when he says loving wife did you see in this case? Absolutely no [sic]. You didn’t see any remorse.” Defense counsel immediately objected, moving for a mistrial on the grounds that the prosecutor had impermissibly commented on Jones’s failure to testify. The trial court denied the motion, but warned the prosecutor to “stay away from that.”

A mistrial is a drastic remedy, to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial and when it cannot be cured by an instruction. Gates v. State, 338 Ark. 530, 21 S.W.3d 40 (1999). The decision to grant a mistrial is within the sound discretion of the trial court, and will not be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. Id. When a prosecutor is alleged to have made an improper comment on a defendant’s failure to testify, we review the statements in a two-step process.

First, we determine whether the comment itself is an improper comment on the defendant’s failure to testify. The basic rule is that a prosecutor may not draw attention to the fact of, or comment on, the defendant’s failure to testify, because this then makes the defendant testify against himself in violation of the Fifth Amendment. A veiled reference to the defendant’s failure to testify is improper, as well. Should we determine that the prosecutor’s closing argument statement did indeed refer to [the defendant’s] choice not to testify, we would then determine whether it can be shown beyond a reasonable doubt that the error did not influence the verdict.

Id. at 538.

Here, the prosecutor’s comment was not a veiled reference to Jones’s failure to testify; rather, the prosecutor was referring to Jones’s lack of remorse as evidenced by his statements to his brother and to the police and by his actions after the murders. His brother Gary testified that Jones “looked mean” and that there were no tears in his eyes when he confessed to the killings. Jones did not cry until after he had called the police, and Gary said that this was “because he knew what he had done, and he was going to be in trouble for it.” Jones asked his brother to lie for him to the police, and he concocted a story to hide his own guilt. This was evidence, completely aside from Jones’s own non-appearance on the witness stand, on which the prosecutor was free to comment.

In addition, Jones essentially invited the statements by making comments during his own closing arguments that were meant to imply how much he loved his wife. When a defendant opens the door to the State’s comments, he cannot complain about it later. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). For these reasons, the trial court did not err in refusing to grant a mistrial.

Jones’s final point on appeal is that the imposition of the death penalty was improper because he fit the current definition of a mentally retarded person. Fie challenges the statute that creates a rebuttable presumption of mental retardation when a defendant has an intelligence quotient of 65 or below, Ark. Code Ann. § 5-4-618(a)(2) (Repl. 1997), and argues that this standard should be replaced with a more progressive one, established by the current Diagnostic and Statistical Manual and followed in other jurisdictions, that sets the standard at an IQ of 70. However, the standard of 65 is our law, and therefore, Jones cannot show that he was prejudiced by the failure to use this suggested higher standard. Even if his argument had merit, Jones could not benefit from our adopting the so-called current standard of an IQ of 70 because his own expert evaluated Jones as having an IQ of at least 71.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3 (h), and it has been determined that there were no rulings adverse to Jones which constituted prejudicial error. Therefore, we affirm.


author: Donald L. Corbin, Justice.

text:
    Kelley CHRISTOPHER v. STATE of Arkansas
    CR 99-787
    10 S.W.3d 852
    Supreme Court of Arkansas
    Opinion delivered February 17, 2000

      William R. Simpson, Jr., Public Defender; Jeffrey A Weber, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Kelley Christopher appeals the judgment of the Pulaski County Circuit Court convicting him of the capital murder of Drajah Morrow and sentencing him to life imprisonment without the possibility of parole. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant’s sole point for reversal is that the trial court abused its discretion in restricting his voir dire of prospective jurors. We find no merit and affirm.

The record reflects that Appellant attacked Mr. Morrow as he was walking down the sidewalk in front of Appellant’s apartment. Appellant stabbed Mr. Morrow repeatedly, using both a butcher knife and a meat fork. The medical examiner testified that Mr. Morrow died as a result of five of those stab wounds. The State alleged that Appellant killed Mr. Morrow with premeditation and deliberation, and thus, charged him with capital murder. The State later agreed to waive the death penalty. Appellant subsequently exercised his right to a trial by jury. During voir dire, Appellant’s attorney attempted to question jurors with regard to lesser offenses, and the following colloquy took place:

[Q]: ... Is there anybody — anybody think that [capital murder is] the only charge there should be when there’s murder involved?
You know, there’s murder in the first degree, murder in the second degree, which each offer lesser punishments but a homicide has still taken place.
Miss Gieringer, do you think it always should be capital murder? Or do you think there’s [sic] circumstances where there should be a lesser?
[A]: I was going to ask you or Mrs. Raney what it is — why do you term it capital murder. I don’t know the difference between them.
[Q]: They get to choose. I don’t have any control over that. So I don’t know. Premeditated and deliberated is what they need in capital murder.
[A]: The other ones are not?
[Q]:. . . [F]irst-degree murder is purpose and second-degree murder is someone causes the death showing extreme indifference to [the] value of human life. And each individual one comes down a little bit on his mental state. Do you think that’s proper? Or do you think it should always be capital murder, death penalty or life without for everyone?

At that point, the State objected to the line of questioning on the grounds that it was unknown whether the jury would receive instructions on any lesser offense. The trial court sustained the State’s objection and instructed Appellant’s counsel to simply ask the prospective jurors if they would be able to foEow any instruction submitted to them. After considering aE the evidence, the jury convicted Appellant of capital murder.

For reversal, AppeEant argues that the trial court improperly restricted his voir dire of potential jurors, thus impeding his abEity to ascertain the jurors’ understanding of the distinctions among the classes of homicide. He claims that this, in turn, restricted his abEity to determine when to exercise his peremptory chaEenges. The State argues that AppeEant is proceduraEy barred from arguing this on appeal because the defense conceded that the jury was acceptable at the close of jury selection. We agree with the State that AppeEant has not preserved this issue for appeal.

In order to preserve an argument for appeal, there must be an objection in the trial court that is sufficient to appraise that court of the particular error alleged. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996); Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995). The faüure to object at the first opportunity waives any right to raise that point on appeal. Id. Here, AppeEant never took exception to the trial court’s decision to restrict his voir dire of the potential jurors. Likewise, he never noted on the record that he had any objection to the impanelment of the jury even though he now argues that he was unable to adequately question the potential jurors. It was necessary for Appellant to raise his objection at this point in order to establish that he was prejudiced by the trial court’s decision. Accordingly, Appellant has waived his right to raise this issue on appeal.

Even absent this procedural defect, there is no merit to Appellant’s argument that the trial court abused its discretion in hmiting voir dire. This court has held that the extent and scope of voir dire is left to the sound discretion of the trial judge, and the trial judge’s ruling will not be disturbed on appeal, absent an abuse of discretion. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). The proper role of a trial judge in voir dire is to direct the process, and he is given great discretion to ensure that no undue advantage is gained. Britt, 334 Ark. 142, 974 S.W.2d 436; Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983).

Rule 32.2 of the Arkansas Rules of Criminal Procedure provides for voir dire examination of potential jurors and specifically grants the trial judge the power to “permit such additional questions by the defendant or his attorney and the prosecuting attorney as the judge deems reasonable and proper.” (Emphasis added.) See also Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). This court in Danzie held that the rule has been interpreted as providing trial judges with wide latitude in conducting and monitoring voir dire. Furthermore, this court has held that the purpose of voir dire is to discover if there is any basis for a challenge for cause and to gain knowledge for the intelligent exercise of peremptory challenges. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992); Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983). In the present matter, the trial court found that Appellant’s line of questioning was irrelevant because it was unknown at that point whether instructions on lesser charges would even be submitted to the jury. Considering the wide latitude allowed trial judges in managing voir dire, we cannot say that this was an abuse of the trial court’s discretion.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for rulings decided adversely to Appellant. No reversible errors were found.

Affirmed.


author: PER CURIAM. PER CURIAM.

text:
    Nakia BAKER v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
    99-526
    12 S.W.3d 200
    Supreme Court of Arkansas
    Opinion delivered February 17, 2000
    [Supplemental opinion on granting of rehearing issued April 27, 2000.]

      Blackmon-Solis & Moak, L.L.P., by: DeeNita Moak, for appellant.
    No response.
   PER CURIAM.

On July 8, 1998, attorney DeeNita Moak was appointed by the chancery court to represent Appellant Nakia Baker in a termination of parental rights case. The order of appointment specifically required Ms. Moak to represent Appellant through all stages of the proceedings, including the appeal. Appellant’s parental rights were ultimately terminated, and that decision was affirmed by this court in Baker v. Ark. Dep’t Human Servs., 340 Ark. 42, 8 S.W.3d 499 (1999). During the pendency of this appeal, Ms. Moak filed a motion for attorney’s fees with the chancery court. The chancery court granted her fees for work performed at the trial level, but denied fees for any appellate work performed. Ms. Moak subsequently filed a motion for attorney’s fees with this court.

After considering Ms. Moak’s motion and supporting affidavit, we hold that Ms. Moak is entitled to payment of attorney’s fees for sixty-seven hours of services rendered in connection with this appeal. The number of hours represent the time expended on services essential to the pursuit of this appeal. Such a determination is consistent with the manner we use in awarding reasonable attorney’s fees in criminal appellate cases. Because the funds established to pay attorneys for appellate representation are limited, we are required to closely scrutinize the services performed and order payment for only those services that are essential to the appellate process. The rate of compensation is to be $55.00 per hour, which is within the range of payment established by the chancery court for appointed counsel in these types of cases. Furthermore, we hold that Ms. Moak is entitled to reimbursement of $842.49 in costs incurred as a result of her work on this appeal.

Because this court has no funds from which to pay these fees, we remand the matter to the chancery court for payment of fees and costs from the Juvenile Court Representation Fund established in Ark. Code Ann. § 9-27-316 (Supp. 1999). The Fund provides for the payment of attorney’s fees and costs pursuant to an appointment to represent an indigent parent in cases where termination of parental rights is sought. We realize that the statute does not specifically authorize payment for appellate representation, but it also does not exclude such payment. Absent any other provisions, we deem the Juvenile Court Representation Fund to be the proper source of payment for these attorney’s fees. If this was not the intention of the General Assembly, we invite it to consider an alternative in the next legislative session.

Accordingly, we order the chancery court to pay Ms. Moak attorney’s fees in the amount of $3,685.00 and costs of $842.49 from the Juvenile Court Representation Fund. In the event there are insufficient monies in that fund, then Ms. Moak may seek compensation from the Arkansas Claims Commission.

Blackmon-Solis & Moak, L.L.P., by: DeeNita Moak, for appellant.

Mark Pryor, Att’y Gen., by: Patricia Van Ausdall, Ass’t Att’y Gen., for appellee.

SUPPLEMENTAL OPINION ON GRANT OF REHEARING APRIL 27, 2000

PER CURIAM.

DeeNita Moak, counsel for Appellant Nakia Baker petitions this court for rehearing of our per curiam opinion ordering payment of attorney’s fees from the Juvenile Court Representation Fund. See Baker v. Arkansas Dep’t Human Servs., 340 Ark. 408, 12 S.W.3d 200 (2000). Ms. Moak asserts in her petition that this court erred in designating payment from that fund pursuant to Ark. Code Ann. § 9-27-316 (Supp. 1999). Specifically, Ms. Moak argues that the fund is not designated for payment of attorney’s fees in cases involving the termination of parental rights. We agree.

As originally enacted, section 9-27-316 provided that attorneys who represented indigent parents in termination cases were to be paid from the Juvenile Court Representation Fund. The General Assembly, however, made several changes to section 9-27-316 in 1997, including the provision concerning the Juvenile Court Representation Fund. As the section now reads, monies in the Juvenile Court Representation Fund are to be used for payment of attorney’s fees only in cases of juvenile delinquency and families in need of services. The section continues to require that counsel be appointed to represent indigent parents in termination cases, but no longer provides a source for payment of such appointed counsel.

The failure of the legislature to designate a source for payment does not render Ms. Moak’s claim for attorney’s fees null, however. Ms. Moak’s claim is a claim against the state for services performed on behalf of the state; therefore, the state is responsible for payment of her fees and expenses. See State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993).

We find no merit in Ms. Moak’s argument that the chancellor has funds available to her to pay the fees in this case, as neither her affidavit nor the supporting exhibits are part of the record in this matter. We have repeatedly stated that we will not consider matters not contained in the record. See e.g., Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999); Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998); Boswell, Tucker & Brewster v. Shiron, 324 Ark. 276, 921 S.W.2d 580 (1996). Accordingly, we grant Ms. Moak’s petition for rehearing and reverse only that part of our opinion ordering payment of attorney’s fees from the Juvenile Court Representation Fund.


text:
    Roy Lee BOLES v. Mike HUCKABEE
    98-1056
    12 S.W.3d 201
    Supreme Court of Arkansas
    Opinion delivered February 17, 2000

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Darnisa Evans Johnson, Sr. Ass’t Att’y Gen., for appellee.
   PER CURIAM.

Roy Lee Boles is appealing the trial court’s denial of his petition to proceed in forma pauperis in a declaratory-judgment action. The trial court denied the petition pursuant to Rule 72 of the Arkansas Rules of Civil Procedure, which conditions the right to proceed in forma pauperis on, among other things, the trial court’s satisfaction that the alleged facts indicate a colorable cause of action. Boles now contends that the trial court erroneously concluded that his petition for declaratory judgment failed to state a colorable claim.

Boles is incarcerated in the Arkansas Department of Correction pursuant to convictions in two drug-related cases. The first conviction occurred in 1993, when he was convicted of possession of a controlled substance with intent to deliver. He was sentenced to twenty years’ imprisonment. The second conviction occurred in 1995, when Boles pleaded guilty to a series of offenses including possession of a controlled substance, possession of drug paraphernalia, and maintaining a drug premises. He received an aggregate term of twenty-five years’ imprisonment for those offenses, and he was ordered to serve that term concurrently with twenty-year sentence he received in 1993.

According to Boles’s petition for declaratory relief, the Arkansas Department of Correction erroneously applied Ark. Code Ann. § 16-93-607 (c)(5) (1987) to his 1993 conviction to compute his parole eligibility for both sentences. Pursuant to that statute,'the Department of Correction classified Boles as a fourth offender, and as such, he is only able to obtain an early release from prison through good-time allowances. Boles alleged that under that formula, he would not be eligible for early release until after he served approximately ten years.

Boles’s petition for declaratory relief further contended that his parole eligibility should have been calculated according to the law that was in effect at the time he was sentenced in 1995. He argued, in essence, that if the law in effect in 1995 were applied to the calculation of his parole eligibility, he would be eligible for early release after serving only four and one-half years. Boles also contended that the Department of Correction’s failure to compute his parole eligibility in this manner violated his constitutional rights to due process and equal protection under the law, and also, that it constituted cruel and unusual punishment.

Boles’s petition for declaratory relief, in essence, calls for the retroactive application of a more favorable parole-eligibility law to the sentence he received in 1993. He argues that the 1995 conviction, and the parole-eligibility laws that existed at that time, should control his eligibility for parole for both sentences.

This court has previously held, however, that parole eligibility is determined by the law in effect at the time the crime is committed. Woods v. Lockhart, 292 Ark. 37, 727 S.W.2d 849 (1987). Consequently, the law prevailing at the time of each conviction would apply to the sentences that Boles received. According to Boles’s calculations, when 16-93-607(c)(5) is applied to the sentence that he received in 1993, his release date would arrive no earlier than ten years. Likewise, when 16-93-206 is applied to the twenty-five-year sentence he received in 1995, he calculates that his release date could arrive as early as four and one-half years into that sentence.

The fact that Boles is serving both sentences concurrently, or simultaneously, leads to the illusion that only one of the parole-eligibility laws is being used to calculate his release date. If the Department of Correction has informed Boles that he would not be eligible for release until after he has served ten years, rather than four and one-half, it is merely because it is the longer of the two sentences that were ordered to be served concurrently.

A colorable cause of action is “a claim that is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical extension of modification of current law).” Black’s Law Dictionary, 240 (7th ed. 1999). As we explained, Boles’s claim that his 1995 conviction should control his parole eligibility is not consistent with the law, nor does it call for a reasonable modification of the law. Accordingly, it was proper for the trial court to conclude that this claim was not “colorable.”

Boles’s petition also alleged that when officials in the Department of Correction determined that he was a fourth offender, they improperly used prior felonies that were classified as “C” and “D,” rather than the “A,” “B,” and “Y” felonies specified by Ark. Code Ann. § 16-93-607 (1987). Boles’s petition failed to include, however, any factual allegation that set forth the number and classification of any of his prior felonies. Consequently, Boles did not allege sufficient facts to support his allegation that the Department of Correction improperly calculated his fourth offender status.

Affirmed.


author: Per Curiam.

text:
    Ronnie Drew JOHNSON v. STATE of Arkansas
    98-1123
    12 S.W.3d 203
    Supreme Court of Arkansas
    Opinion delivered February 17, 2000

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Ass’t Att’y Gen., for appellee.
   Per Curiam.

In 1984, Ronnie Drew Johnson pleaded guilty to first-degree murder, aggravated robbery, theft of property, and felon in possession of a firearm. In another case, he pleaded guilty to robbery. His aggregate sentence for all of these offenses is forty years in the Department of Correction. Johnson had also been convicted of aggravated robbery in 1977.

In 1998, Johnson filed a petition for declaratory judgment and a writ of mandamus, alleging that the Department of Correction was using an invalid prior conviction to compute his parole eligibility. Specifically, Johnson alleged that his 1977 aggravated-robbery conviction was invalid because he was a juvenile tried as an adult in circuit court without benefit of a transfer hearing. The trial court denied Johnson’s petition because he did not state a cognizable ground for declaratory relief or mandamus. The court found that “[petitioner is trying to collaterally attack a prior juvenile conviction through a petition for writ of mandamus and declaratory judgment on a later conviction. This is not a cognizable claim. Whether a hearing was held, prior to his being tried as an adult in 1977, is not a claim that can be addressed in this petition.” Johnson, proceeding pro se, now assigns error to the court’s finding regarding the cognizability of his claim. We affirm.

In St. John v. Lockhart, 286 Ark. 234, 691 S.W.2d 148 (1985), we held that in determining parole eligibility, a state need not look behind a valid judgment of conviction. Johnson’s petition did not allege that the judgment of conviction that was entered in 1977 was facially invalid. Rather, he argued that the Department of Correction should look beyond the judgment and make a determination of whether his due process rights were violated when a transfer hearing was not held.

Johnson cites Abdullah v. Lockhart, 302 Ark. 506, 790 S.W.2d 440 (1990), to support his argument that his petition did raise a cognizable ground for relief. In that case, Abdullah filed a petition for declaratory relief and a writ of mandamus alleging that the Department of Correction used invalid prior convictions to compute his parole eligibility. Specifically, Abdullah alleged that he was not represented by counsel. We noted that the certified copies of the judgments from those cases did not show whether Abdullah was represented by counsel. We concluded, however, that other documents indicated that Abdullah either did have an attorney or waived his right to an attorney in the previous convictions. Accordingly, we affirmed the lower court’s denial of declaratory and mandamus relief.

Johnson apparently relies on the fact that we addressed Abdullah’s constitutional claim as authority to support his argument that a petition for declaratory judgment is the proper means to attack the 1977 conviction on the basis that he was denied a transfer hearing. Abdullah can be distinguished, however, because the petitioner in that case alleged that the certified copies of the judgments from the prior convictions did not indicate that he was represented by counsel, or that he had waived that right.

In this case, Johnson’s petition did not raise an issue about the facial validity of the 1977 conviction. Consequently, he did not state a cognizable ground for relief in his petition for declaratory judgment and a writ of mandamus.

Affirmed.

       The United States District Court for the Eastern District of Arkansas later found that the record did not support that Abdullah received effective assistance of counsel in two of his prior convictions, and it granted Abdullah’s petition for a writ of habeas corpus. Abdullah v. Lockhart, 780 F.Supp. 1221 (E.D. Ark. 1991).


text:
    Larry LADWIG v. Honorable Fred DAVIS, Judge
    CR 98-350
    10 S.W.3d 461
    Supreme Court of Arkansas
    Opinion delivered February 17, 2000

      Appellant, pro se.
    No response.
   PER CURIAM.

In 1998, Larry Ladwig filed a petition for writ of mandamus in this court contending that the Honorable Fred Davis, Circuit Judge, had failed to act within a reasonable time on a petition for postconviction relief pursuant to Criminal Procedure Rule 37 that had been filed in 1997.

Shortly thereafter, Judge Davis entered an order declaring Ladwig indigent and appointing counsel to represent him in the Rule 37 proceeding. The attorney was relieved in November 1998, and a second attorney was appointed. The second attorney was relieved in May 1999, and a third attorney was appointed for Ladwig. A hearing was set for September 2, 1999, on the Rule 37 petition.

When no order had been entered on the Rule 37 petition by November 2, 1999, one of our staff attorneys wrote to Judge Davis to ascertain the status of the matter. There was no response to the letter, and the staff attorney wrote to Judge Davis again on November 16, 1999. There was also no response to that letter, and Judge Davis’s office was contacted by telephone on December 8, 1999.

Judge Davis’s case coordinator said at that time that the hearing had indeed been held on September 2, 1999, and that the hearing record had been prepared and a ruling would be entered by January 1, 2000. On January 10, 2000, a second call was placed to Judge Davis’s office at which time the case coordinator said the order was being prepared and would likely be entered by February 4, 2000. (The compliance report filed by Judge Davis with the Administrative Office of the Courts for the period since the Rule 37 hearing indicated that the ruling would be entered by January 31, 2000.) On February 10, 2000, our staff attorney contacted the circuit clerk who reported that the Ladwig order had still not been entered.

While we have consistently recognized that the independence of the bench in our judicial system requires that the trial judge control his docket and the disposition of matters filed, this is not to say that a motion or case should be delayed beyond a time reasonably necessary to dispose of it. Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989). The Code of Judicial Conduct, Canon 3(B)(8), requires that a judge dispose of all judicial matters promptly. As Judge Davis has not responded to letters inquiring about the Ladwig petition, we must conclude that there is no good cause to justify the delay in ruling on the Rule 37 petition. The writ of mandamus is granted. We direct that Judge Davis enter a order on Ladwig’s Rule 37 petition within seven days of the date of this decision.

Petition granted.


author: Robert L. Brown, Justice,

text:
    James BILYEU v. STATE of Arkansas
    CR 98-1480
    10 S.W.3d 105
    Supreme Court of Arkansas
    Motion for Permission to File Belated Brief granted February 17, 2000
    Concurring opinion delivered February 17, 2000

      Hurst Law Offices, by: Q. Byrum Hurst, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: O. Milton Fine II, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice,

concurring. I agree to grant the State’s motion for permission to file belated brief. I am troubled, however, by the five-month gap between the filing of appellant’s brief on August 16, 1999, and the tender of the State’s brief on January 24, 2000, especially since the appellant apparently is in prison. The State did not receive a copy of the appellant’s brief after it was filed. But the State, no doubt, did receive a copy of the briefing schedule from the Supreme Court Clerk, showing that the appellant’s brief was due in August 1999. This should have alerted the State to determine whether the appellant’s brief had indeed been filed. Had the State checked, this considerable delay in moving ahead on this appeal could have been avoided.

       This is a Rule 37 appeal, and in order to file a Rule 37 petition, a petitioner must be in custody. See Ark. R. Crim. P. 37.1; Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999).


text:
    Carl MENY v. Larry NORRIS, Director, Arkansas Department of Correction
    98-1143
    13 S.W.3d 143
    Supreme Court of Arkansas
    Opinion delivered February 17, 2000

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., for appellee.
   PER CURIAM.

In 1992, appellant was found guilty by a jury of three counts of rape, kidnapping, and attempted capital felony murder. He was sentenced to three life terms for the three counts of rape, to run consecutively, with twenty years for kidnapping and thirty years for attempted felony murder. We affirmed. See Meny v. State, 314 Ark. 158, 861 S.W.2d 303 (1993). In 1998, appellant filed a petition for writ of habeas corpus seeking to have the judgments vacated. The petition was denied, and appellant has appealed that decision to us.

We have repeatedly held that a writ of habeas corpus will issue only if the commitment was invalid on its face or the committing court lacked jurisdiction. McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992); See, e.g,, Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991); Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989). A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case. A writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial. The remedy in such a case is direct appeal. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). A writ of habeas corpus will not be issued as a substitute for postconviction relief. The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a “showing, by affidavit or other evidence, [of] probable cause to believe” he is so detained. Ark. Code Ann. § 16-112-103 (1987). A hearing is not required if the petition does not allege either of the bases of relief proper in a habeas proceeding, George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985), and, even if a cognizable claim is made, the writ does not have to be issued unless probable cause is shown. Ark. Code Ann. § 16-112-103 (1987).

First, appellant argues that the trial court erred in holding that appellant’s habeas claims were not cognizable under the state habeas statute. We find appellant’s argument misconstrues the court’s order. In denying appellant’s petition, the trial court found “petitioner has failed to state a claim upon which habeas relief can issue and the Court cannot grant the relief requested pursuant to this petition.” It is clear that the trial court did not hold that appellant’s claims were cognizable. Thus, we find no merit in appellant’s first point.

Next, appellant argues that Judge Fred Davis should have recused himself from appellant’s habeas proceedings. There is no indication in appellant’s abstract or the record that appellant raised this issue below. In addition, this is not a claim cognizable under habeas review. Based on the foregoing reasons, we decline to address this issue.

For his third point on appeal, appellant argues that the trial court erred in failing to grant habeas relief because the trial court lacked jurisdiction to enter a judgment of commitment and sentence. Appellant contends that he was charged with the crimes in the 7th Judicial District; however, the sentence and commitment order was issued in the 11th Judicial District. Appellant asserts that Judge Davis was acting outside the territorial boundaries of the 7th Judicial District when he entered the commitment order and sentence; thus, under Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993), the order is void. In support of this contention, appellant relies only on a purported affidavit of J. Sky Tapp, appellant’s attorney.

In reviewing this issue, we determined that the record does not contain an affidavit by Mr. Tapp nor does the record contain any evidence that Judge Davis held a hearing in the 11th Judicial District or entered the judgment and commitment order in the 11th Judicial District. The record does indicate that the jury returned a verdict and sentence was pronounced in the 7th Judicial District. The court did allow for arguments on the issue of whether to run the sentences consecutively or concurrently; however, there is no evidence in the record before us that any actions were taken in the 11th Judicial District involving appellant’s case. It is appellant’s burden to bring forth a record that demonstrates error. Lukach v. State, 310 Ark. 38, 835 S.W.2d 642 (1992). Because appellant has failed to demonstrate that the affidavit of Mr. Tapp was part of the record considered by the Circuit Court and because appellant has failed to obtain a recording of the sentencing hearing, he has not demonstrated error.

For his fourth point, appellant argues that the change of venue that occurred in this case was void; consequently, the Saline County Circuit Court lacked jurisdiction to try appellant. We disagree.

To begin with, venue and jurisdiction, though sometimes used interchangeably, are two distinct legal concepts. Venue is the geographic area, like a county, where an action is brought to trial. Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). Jurisdiction is the power of a court to decide cases and presupposes control over the subject matter and parties. Id. This court has stated that venue may be waived in a criminal case within the territorial boundaries of the judicial district. See Waddle v. Sargent, supra; see also Ark. R. Crim. P. 24.8(c)(1) (waiver of venue for plea of guilty for a second offense committed in another jurisdiction).

Here, appellant requested a change of venue. Judge Cole granted appellant’s motion by changing venue from Hot Spring County to Saline County. Appellant asked the court to reconsider changing the venue to Grant County, which is outside the territorial boundaries of the 7th Judicial District. It appears that Judge Cole denied appellant’s request. The trial was conducted in Saline County, and the judgment and commitment order was entered in Saline County. There is no indication from the record that appellant raised any other objections to the order changing venue prior to trial. Appellant voluntarily appeared for trial in Saline County and was convicted and sentenced. Based on the facts before us, any venue argument which Appellant might have had was waived, and any challenge to the order entered by Judge Cole changing venue cannot be raised for the first time in this habeas appeal.

Finally, appellant argues that the trial court erred in failing to grant habeas relief because the sentencing court lacked jurisdiction to sentence appellant to terms of imprisonment for the underlying felonies of kidnapping and rape to support attempted capital felony murder.

Detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999). American Jurisprudence 2d states the fundamental principle of law:

Challenges to the length of confinement are properly considered in the context of habeas corpus proceedings. Thus, the unlawful confinement of an individual under a sentence longer than that permitted by statute constitutes a denial of liberty without due process of law, and a petitioner alleging such confinement is entitled to seek habeas corpus relief under the Great Writ.

39 AM.JUR.2d § 66 (1999). The Great Writ provides protection for petitioners who are confined under sentences longer than that permitted by statute. See, e.g., Manville v. Hampton, 471 S.E.2d 872 (Ga. 1996); State v. Purkett, 908 S.W.2d 691 (Mo. App. W.D. 1995). In Manville, the Georgia Supreme Court noted that if the petitioner was confined for a sentence longer than that permitted by statute, this would be a denial of liberty without due process of law and a writ of habeas corpus would issue. In Purkett, the petitioner was sentenced to fifteen years for attempted sodomy when the maximum sentence was seven years. The Missouri Supreme Court wrote that habeas corpus was the proper remedy for one sentenced in excess of what was authorized by law. Because the petitioner had served the authorized sentence, he was ordered discharged from detention.

Many jurisdictions employ the writ of habeas corpus to reduce the term of an excessive sentence to that authorized by statute although the petitioner has not yet completed the valid portion of his sentences. See, e.g., In re Tartar, 339 P.2d 553 (Cal. 1959); Landreth v. Gladden, 324 P.2d 475 (Ore. 1958); Ex parte Hill, 528 S.W.2d 125 (Tex. Crim. App. 1975). See also, United States v. Wilson, 997 F.2d 429 (8th Cir. 1993).

Here, appellant argues that the judgment and commitment order is void because the trial court lacked jurisdiction to sentence him for the underlying felonies supporting the conviction for attempted capital murder as well as for attempted capital murder. We disagree with appellant that his conviction is void; however, we do agree that appellant is being illegally detained to the extent that the sentences are excessive.

Appellant was convicted of three counts of rape, one count of kidnapping, and one count of attempted capital murder. He was sentenced on all five counts. The information in the record does not indicate which felony was used to support the charge of attempted capital murder. Even so, appellant is now entitled to relief because the attempted capital murder conviction requires at least one underlying felony to be merged into the capital murder conviction. See Richie v. State, 298 Ark. 358, 767 S.W.2d 522 (1989). The doctrine of merger then prevents conviction and sentencing on the underlying felony. Id. Accordingly, we hold that one felony conviction, for one count of rape, merged into the conviction for the attempted capital murder. The judgment and commitment is modified to show two life sentences for two rape convictions as opposed to three, with the two fife sentences to run consecutively. The other convictions and sentences remain in effect.

Affirmed as modified.