text:
    Melvin DULANEY v. STATE of Arkansas
    CR 98-49
    999 S.W.2d 181
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999

      Cross, Kearney & McKissic, by; Jesse L. Kearney, for appellant.
    No response.
   Per Curiam.

Melvin Dulaney was convicted by a jury of possession of cocaine with the intent to deliver, being a felon in possession of a firearm, and simultaneous possession of drugs and a firearm. For these crimes, Dulaney received a cumulative sentence of thirty-four years’ imprisonment. We subsequently affirmed appellant’s conviction in Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). Thereafter, appellant filed a Rule 37 petition. After a hearing, the circuit court denied appellant’s petition with regard to numerous allegations of ineffective assistance of counsel. However, the court found that appellant had been sentenced improperly to seven years on the revocation of a suspended sentence, and appellant’s seven-year sentence was reduced to three years.

On appeal from the denial of his ineffective-assistance claims, appellant raises numerous points challenging the court’s finding that counsel was not ineffective. Unfortunately, the circuit court has failed to make sufficient written findings on the points raised in appellant’s petition for postconviction relief. Thus, we are unable to effectively review the evidence and the court’s reasoning to determine if the court’s conclusions were clearly against the preponderance of the evidence.

In Rawls v. State, 264 Ark. 954, 581 S.W.2d 323 (1986), we pointed out the distinction between cases decided pursuant to Rule 37.3(a), where no hearing is held and where we may excuse the failure to make written findings, and those decided under Rule 37.3(c), where a hearing has been held and where we may not excuse the failure to make written findings. We held no such findings were necessary in that case because the trial court apparently decided the motion without a hearing. There was no record of a hearing in the transcript of the proceedings. We pointed out, however, that “[w]e have held that written findings must be made whenever an evidentiary hearing is held.”

In Williams v. State, 272 Ark. 98, 99, 612 S.W.2d 115, 115 (1981), we noted that “[w]e have held without exception that this rule is mandatory and requires written findings,” Citing State v. Maness, 264 Ark. 190, 569 S.W.2d 665 (1978); Robinson v. State, 264 Ark. 186, 569 S.W.2d 662 (1978). In Bumgarner v. State, 288 Ark. 315, 705 S.W.2d 10 (1986), we made it clear that the requirement of written findings of fact applies to any issue upon which a Rule 37 hearing is held.

Here, the court’s order addressing ineffective assistance of counsel provided:

That the performance of Mark Reese as counsel for defendant, during and leading up to his trial, did not fall below the standard expected of counsel, and was not ineffective assistance of counsel.
That defendant’s appeal was perfected by attorneys other than trial counsel; therefore trial counsel, Mark Reese was not ineffective in perfecting the defendant’s appeal rights.

The court’s order does not address the numerous allegations listed in appellant’s petition nor those reiterated on appeal. The court’s order is conclusory in nature. Thus, we must remand the case in accordance with Rule 37.3(c) for fact-findings on the issues of ineffective assistance of counsel brought forth in appellant’s Rule 37 petition.

Reversed and remanded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Timothy EPPS v. STATE of Arkansas
    CR 99-869
    998 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999

      Witt Law Firm, by: Ernie Witt, for appellant.
    No response.
   Per Curiam.

Appellant Timothy Epps files a petition for writ of certiorari and motion to extend the time to file a brief and abstract. He prays that the writ of certiorari be granted directing court reporter, Joan Douglas, to complete the transcript in this case. Epps shows this court that the court reporter has already failed to comply with an order of the trial court extending the time for preparing and filing the transcript to July 29, 1999, which was seven months from entry of judgment. Ms. Douglas offers a heavy work schedule as an explanation for the delay.

We issue the writ of certiorari directing Ms. Joan Douglas to complete and file the transcript in this matter within thirty days from date of this order. The Supreme Court Clerk is directed to forward a copy of this per curiam order to the Board of Certified Court Reporter Examiners for any action it may deem appropriate under its rules.

Epps has also moved to extend the time for filing his abstract and brief to forty days after the transcript and record are filed herein. That motion is granted.


text:
    Anthony L. JOHNSON v. STATE of Arkansas
    CR 99-1000
    998 S.W.2d 420
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999

      William R. Simpson, Jr., Public Defender, by: Tjuana C. Byrd, Deputy Public Defender, for appellant.
    No response.
   Per Curiam.

Appellant Anthony L. Johnson has filed a motion for belated appeal. The motion reflects that the judgment and commitment order was filed on January 28, 1999, but that the notice of appeal was not filed until March 9, 1999. Appellant’s counsel, Tjuana C. Byrd, admits responsibility for failing to timely file the notice of appeal.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Pack v. State, 336 Ark. 268, 983 S.W.2d 126 (1999) (per curiam); Brewer v. State, 334 Ark. 234, 973 S.W.2d 482 (1998) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). A copy of this per curiam opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

Motion granted.


text:
    Arthur RASH and Shirley Rash, by Connie S. France, Guardian Ad Litem v. The Honorable Daniel R. HUFFMAN
    99-1062
    998 S.W.2d 420
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999

      Connie S. France, for petitioners.
    No response.
   Per Curiam.

The guardian ad litem, Connie S. France, for the two children in this matter, Arthur Rash, age 11, and Shirley Rash, age 10, has filed a petition for writ of certiorari and stay and a motion to expedite our consideration of that petition. The natural parents of the children, Jeff Rash and Deborah Rash, now Jackson, were divorced in 1997 in Carroll County. Deborah was awarded custody of the children and lives with her new husband, John Jackson, in Colorado. According to the petitioner, the children were visiting their natural father in Arkansas. They made allegations that they feared for their safety if they were forced to return to the home of Deborah and John Jackson. On July 19, 1999, the chancellor placed them in the custody of the Department of Human Services.

On July 20, 1999, after a hearing with all parties present or represented, the chancellor ordered the return of the children to Colorado conditioned on the Arkansas DHS satisfying itself that the children will be safe upon their return to Colorado and that the return is in the best interests of the children.

On September 10, 1999, the chancellor entered an order without a prior hearing conducted with parties present or represented. That order stated that the Arkansas DHS, after consulting with the Colorado DHS, had assured him that the children would be safe in Colorado and that allegations of harm or danger in the Colorado home were unsubstantiated. He ordered that the children be picked up for their return to Colorado on September 11 or 12, 1999.

In a petition for emergency custody filed September 13, 1999, in Carroll County Chancery Court, Ms. France contends that the conveyance of the information about the children’s safety by the Carroll County DHS supervisor to the chancellor was by an ex parte communication and without the knowledge of the DHS case worker assigned to the case or the DHS attorney or the petitioner.

The motion to expedite consideration of this matter is granted. We stay the chancellor’s September 10, 1999 order and grant the parties twenty days to respond to the guardian’s petition. This stay does not bar the chancellor from conducting a hearing on this matter with all parties present.


text:
    STATE of Arkansas v. Kenneth STRAWBRIDGE
    CR 96-1237
    998 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999

      Mark Pryor, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., for petitioner.
    No response.
   Per Curiam.

The State of Arkansas has petitioned this court to grant the respondent, Kenneth Strawbridge, a belated appeal and to appoint counsel to represent him for the appeal. The State shows this court that on July 20, 1999, United States Magistrate Judge John F. Forster, Jr., held that respondent was denied his first appeal of right and that a writ of habeas corpus would be granted unless counsel was appointed to represent him on appeal within ninety days and a belated appeal was granted.

We grant Mr. Strawbridge a belated appeal and appoint Robert R. White, Esq., to represent the respondent in this appeal.


author: Tom Glaze, Justice.

text:
    MARY KAY, INC., a/k/a Mary Kay Cosmetics, Inc. v. Janet ISBELL
    98-489
    999 S.W.2d. 669
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      Wright, Lindsey & Jennings, by; Roger D. Rowe, Nancy Bel-Ihouse May, and Troy A. Price, for appellant.

      Stephens Law Firm, by: K. Gregory Stephens; and Windle Turley, P.C., for appellee.

      Barret & Deacon, A Professional Association, by: D.P. Marshall Jr., for amicus curiae Direct Selling Association.
   Tom Glaze, Justice.

This case requires our interpretation of the Arkansas Franchise Practices Act, Ark. Code Ann. § 4-72-201 to -210 (Repl. 1996 and Supp. 1997), and whether the Act applies to the business relationship established between appellee Janet Isbell and appellant Mary Kay, Inc. Rule l-2(b). This court’s jurisdiction is also invoked because the case presents issues of first impression and of substantial public interest and issues involving the need for clarification and development of the law.

Isbell’s relationship with Mary Kay commenced in 1980 when she signed an agreement to be a beauty consultant for Mary Kay. As a consultant, Isbell was denominated an independent contractor, and, as such, she agreed to promote and sell Mary Kay products to customers at home demonstration parties; she was prohibited by the agreement from selling or displaying those products in retail sales or service establishments. Instead, a Mary Kay consultant’s locations for selling products are her home or those of her potential customers.

After serving a short period as a beauty consultant and recruiting a sufficient number of her customers to be Mary Kay consultants, Isbell became entitled to be a unit sales director. Isbell signed her first sales director agreement on September 1, 1981, and a second one on July 1, 1991. As a director, Isbell continued to recruit beauty consultants and to help and motivate members of her unit in the sale of Mary Kay cosmetics. She also continued to serve as a beauty consultant. Isbell earned compensation in the form of a commission on sales she made directly to customers as a consultant; as sales director, she additionally received override commissions based on sales made by the consultants she recruited.

In 1994, Isbell leased storefront space in a Little Rock mall and used the space as a training center. It was about this time when Mary Kay began receiving complaints about Isbell’s operation. By letter dated April 11, 1994, Mary Kay’s legal coordinator, Sherry Gragg, referred Isbell to the parties’ Sales Director Agreement and the company’s Director’s Guide which was made a part of that agreement. Gragg related that Isbell’s office or training center was to be used only as a teaching center and to hold unit meetings. Gragg further instructed that Isbell’s office or center should not give the appearance of a cosmetic studio, facial salon, or retail establishment, or be used to display or store Mary Kay products. Gragg reiterated that, under the parties’ agreement, a sales director’s office could not appear to be a Mary Kay store or be used to make direct sales to customers. Finally, Gragg admonished Isbell to discontinue all photo sessions of potential customers at such location and to remove any window sign advertising “glamour tips” or face makeover programs taking place at the center. Mary Kay also received complaints of Isbell’s (1) overly aggressive recruiting, (2) listing of fictitious recruits as consultants, and (3) check kiting practices.

Eventually, in September of 1995, Mary Kay’s vice president of sales development, Gary Jinks, notified Isbell by letter that, under the terms of their agreement, the company was terminating its beauty consultant and sales director agreements, and the termination was effective thirty days from the date of the letter. On January 25, 1996, Isbell filed suit against Mary Kay in the Pulaski County Circuit Court, alleging that she was a franchisee under Arkansas’s Franchise Practices Act and that Mary Kay failed to comply with the provisions of the Act when terminating Isbell. Isbell asserted, among other things, that Mary Kay’s letter of termination failed to comply with § 4-72-204 of the Act because the letter did not give her ninety days’ notice or set forth the reasons for her termination. She alleged further that, while no notice was necessary if termination was initiated for “good cause” reasons listed under § 4-72-202(7) (C)-(FI) of the Act, Mary Kay never explained in its letter that its termination was made for any of those listed reasons. See § 4-72-204(b) and (c).

Mary Kay initially filed a motion to dismiss based on the forum selection clause in the parties’ Sales Director Agreement providing that any dispute should be decided in Dallas, Texas, in accordance with Texas law. Texas has no franchise practices law. After the trial court denied Mary Kay’s motion, both parties filed opposing motions for partial summary judgment. Mary Kay asserted its termination was not governed by Arkansas’s Franchise Practices Act because Isbell was not a franchisee, and Isbell countered, contending the Act applied because she was a franchisee.

By letter opinion dated August 18, 1997, the trial court granted Isbell’s motion, but in deciding in her favor, it offered no reason(s) why the court believed the parties’ business relationship was covered by the Arkansas Act. In summarily ruling that the Act applied, the trial court proceeded by stating that the only question left for it to decide was whether Mary Kay’s termination was proper under the Act. The trial court concluded that, if Mary Kay’s actions failed to comply with the Act’s termination provisions, it would allow the parties to try to a jury what damages, if any, Isbell incurred as a result of Mary Kay’s improper termination. After the trial court ruled as a matter of law that Mary Kay’s termination of Isbell had violated the Act, the parties tried the damages issue on September 18, 1997, and the jury returned a verdict in Isbell’s favor in the amount of $110,583.33. Because neither party was fully pleased with the outcome and the trial court’s various rulings, Mary Kay appealed, claiming three points for reversal, and Isbell cross appealed, asserting three separate reasons why the trial court erred.

The threshold issue to be decided is whether the Arkansas Franchise Practices Act applies, because if it does, Isbell would be entitled to the designation of franchisee and permitted to invoke the protections and benefits of that Act. The other five issues raised by the respective parties come into play only if the Act is ruled applicable to this case. Consequently, if we decide the Act is inapplicable to the undisputed facts in this case, we need not reach those additional five issues raised and argued on appeal by the parties.

To determine whether the Arkansas Franchise Practices Act applies to this case depends upon our interpretation and construction of the pertinent provisions of the Act. In this view, we turn first to Ark. Code Ann. § 4-72-202(1) (Supp. 1997), which in relevant part defines “franchise” to mean the following:

[A] written or oral agreement for a definite or indefinite period, in which a person grants to another a license to use a trade name, trademark, service mark, or related characteristic within an exclusive or nonexclusive territory, or to sell or distribute goods or services within an exclusive or nonexclusive territory, at wholesale, retail, by lease agreement, or otherwise.

Clearly, Mary Kay entered into a written agreement with Isbell so that Isbell, as an independent contractor, could use Mary Kay’s trademark and name to sell its products as provided by their agreement. Furthermore, as a sales director, Isbell agreed she would do no act detrimental to the validity of or injurious to the company’s good will related to those marks.

While the Act’s definition of franchise is helpful, that definition alone is not dispositive of the issue as to whether Isbell, under the parties’ agreement, is or is not a franchisee. The answer, however, can be found in §§ 4-72-203 and 4-72-202(6) of the Act. Section 4-72-203 clearly provides the Act applies only to a franchise that contemplates or requires the franchise to establish or maintain a place of business in the state. (Emphasis added.) Next, § 4-72-202(6) defines “place of business” under the Act as meaning “a fixed geographical location at which the franchisee [1] displays for sale and sells the franchisor’s goods or [2] offers for sale and sells the franchisor’s services.” In short, Mary Kay submits that the parties, by their agreement, never contemplated or required that Mary Kay products or services be sold from a fixed location. To the contrary, Mary Kay posits that it and the parties’ agreements required such goods and services not be sold or conducted from any office that could appear to be a retail establishment. In sum, citing these two statutes, Mary Kay submits that no fixed geographical location for selling products or services was ever contemplated, much less required, by the parties’ agreement, and this reason is sufficient alone to preclude Isbell’s reliance on the Act. We agree.

We first should note that IsbeE concedes that, as a sales director, her agreements with Mary Kay provided that she could not display for sale or seE Mary Kay products from an office, whether that office was located in her home or her training center. In fact, IsbeE testified that she never displayed or sold Mary Kay products from her training center, and to have done so would have been a violation of her agreement with Mary Kay.

WhEe conceding that the parties’ agreements never contemplated that IsbeE would or could seE the franchisor’s goods from a fixed location, she argues no such prohibition prevented her from seEing Mary Kay services from her home or training center. SpecificaEy, IsbeE suggests the facial makeovers and “Glamour Shots” photo sessions that were a part of Mary Kay’s demonstration and training program constituted services that the parties contemplated could be sold by IsbeE from her center. In making this argument, IsbeE relies in part on the case of Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992), where Frantz entered into a distributorship agreement to seE the company’s beverages in eleven counties in Arkansas. The agreement contained no provision obligating Frantz to maintain a particular place of business. Nevertheless, Frantz purchased a warehouse for $100,000 in order to inventory and distribute Dr. Pepper’s beverages. Because the parties’ agreement did not prohibit Frantz from seEing the company’s products from the warehouse location and because a company’s representative actuaEy viewed the site and believed it was a “good idea” and a “good investment,” this court concluded the parties’ business relationship was covered by the Arkansas Franchise Practices Act.

The Frantz holding simply is not controEing here. For example, Mary Kay’s Director’s Guide, which was made a part of the parties’ agreements, very clearly provided that a sales director’s office, albeit it her home or training center, could only be used to interview potential recruits and hold unit meetings and other training events. The Guide further provided that the office or center should not give the appearance of a cosmetic studio, facial salon or retail establishment, or give the appearance of being a “Mary Kay” store. Further distinguishing this situation from that presented in Frantz was the April 1994 letter from Mary Kay’s legal coordinator warning Isbell not to use her office for displays and sales of Mary Kay products or for makeover and photo sessions. Thus, nowhere in the parties’ Guide or agreements can it be fairly said that the parties ever contemplated that Isbell could use her office or center as a fixed location to display or sell Mary Kay products or services.

Even if we could agree with Isbell’s contention that she was not prohibited from selling (or was otherwise authorized to sell) Mary Kay services, her argument must fail for another reason. Isbell simply never showed she sold Mary Kay services. She claims that because her contract requires her to provide motivational, counseling, and training services, such services should be considered part of the sale and commission when the product is actually sold. Isbell offered no proof as to what part of the commission, if any, was attributable to services. Neither Isbell nor Mary Kay was shown to have received any separate compensation for services provided to potential customers, but, to the contrary, evidence was presented showing these services, like the photographs taken at makeover sessions, were provided at cost with only the photographer receiving payment.

Finally, Isbell argues that her home constituted a place of business under the Act because as a consultant she occasionally displayed and sold products there. This argument, however, is not supported by the parties’ agreement, since it never contemplated a fixed location for the display and sale of products. As previously stated, a Mary Kay consultant’s locations for selling products are her home or those of her potential customers. Furthermore, Isbell’s reliance on the Frantz case is misplaced because Frantz maintained regular business hours at the warehouse where products were on display and sold. It is thus clear that the requirement of a fixed location is not satisfied by occasional sales from either Isbell’s home or the homes of her potential customers.

In sum, we conclude that the agreements between Janet Isbell and Mary Kay did not contemplate the establishment of a fixed place of business as that term is defined in Ark. Code Ann. § 4-72-202(6). As such, the business relationship entered into by Isbell and Mary Kay was not a franchise within the protection of the Arkansas Franchise Practices Act, and the court below erred in so holding. We therefore reverse and dismiss.

       Isbell’s complaint also included other counts alleging conversion and defamation, but those matters are not relevant here, since this appeal is solely from the lower court’s final judgment disposing of the issues pertaining to the Franchise Practices Act.

       “Good cause” means:
      (C) Voluntary abandonment of the franchise; or
      (D) Conviction of the franchisee in a court of competent jurisdiction of an offense punishable by a term of imprisonment in excess of one (1) year, substantially related to the business conducted pursuant to the franchise; or
      (E) Any act by a franchisee which substantially impairs the franchisor’s trademark or trade name; or
      (F) The institution of insolvency or bankruptcy proceedings by or against a franchisee, or any assignment or attempted assignment by a franchisee of the franchise or the assets of the franchise for the benefit of the creditors; or
      (G) Loss of the franchisor’s or franchisee’s right to occupy the premises from which the franchise business is operated; or
      (H) Failure of the franchisee to pay the franchisor within ten (10) days after receipt of notice of any sums past due the franchisor and relating to the franchise[.]

       In other terms, Isbell reasons that if a demonstration or training session is a part of her job for which she is paid compensation in the form of a commission, Isbell claims these services are sold even though no charge was actually designated for such services at the time the product was sold.


text:
    Billy R. THOMPSON v. STATE of Arkansas
    CR 98-1243
    999 S.W.2d 192
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is an appeal from the appellant Billy R. Thompson’s convictions for first degree murder and felon-in-possession-of-a-firearm for which he was sentenced respectively to life and 360 months in prison. He raises the following two points on appeal: 1) the State failed to prove that he had the purpose of causing the death of another human being, as is required for a first-degree murder conviction, and 2) the trial court erred in failing to sever the murder charge from the felon-in-possession charge. We affirm.

In Mayflower, around 7:00 p.m. on August 24, 1997, a neighbor heard what sounded like a gunshot come from the vicinity of Billy and Sandra Thompsons’ house. Sometime after 8:00 that evening, Billy Thompson called a friend, Geneva York, and told her that he had killed his wife. He asked York to come over. At 8:24, the Mayflower 911 dispatcher received a call from Thompson, during which he said that he “thought” he had shot his wife with a .38 pistol. The first police officer arrived about 8:30 and found the body of Sandra Thompson slumped over on a love seat with a gunshot wound to her neck.

Mayflower Chief of Police David Hart arrived at the scene around 8:45 p.m. While searching the house, he noticed that the bottom of the shower and the sink were wet, as though someone had recently taken a shower. A gunshot residue test was performed on Thompson, but no elements were found on his hands and the test was ruled inconclusive. In addition, the .38 that Thompson had indicated as the one he used in the shooting was tested for blood and fingerprints. The test for blood was negative, and the fingerprint testing was illegible and inconclusive. Chief Hart testified that the gun “had no prints at all on it as though somebody had wiped it off.” Thompson was arrested and initially charged with second-degree murder. However, the State later amended its information to first-degree murder and added a charge of being a felon in possession of a firearm. Thompson had acquired a string of felony convictions extending back to the 1960s.

At trial, forensic pathologist Dr. Stephen Erikson testified that Sandra Thompson had died as a result of a close-contact gunshot wound to the neck. The bullet passed through her spinal column, severing the nerves which controlled her diaphragm and motor control, rendering her unable to breathe or move, and leading to her death within a matter of minutes. Faulkner County Coroner Patrick Moore testified that Sandra’s injuries were consistent with a homicide, as opposed to a suicide, as suicide victims tend to shoot themselves in the head and not in the neck. Moore also testified that there was water and a damp towel, but no blood, in the shower in the Thompsons’ house.

Thompson’s attorney moved for a directed verdict at the close of the State’s case, contending that there had been insufficient evidence to prove that Thompson had the purpose of killing his wife, and that there had not been any in-court identification of Thompson. The court denied the motion on both points. Defense counsel rested without Thompson’s testifying in his own defense; he renewed his motion for directed verdict, which was again denied. As previously mentioned, the jury convicted Thompson on both the first-degree murder and the possession of a firearm counts, which he challenges in this appeal.

Thompson first argues that the prosecution failed to prove that he had the requisite purpose necessary to uphold a first-degree murder conviction. In other words, the State was required to prove that Thompson purposely caused the death of his wife Sandra. See Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1).

A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Mulkey v. State, 330 Ark. 113, 117, 952 S.W.2d 149, 151 (1997); Williams v. State, 325 Ark. 432, 437, 930 S.W.2d 297, 299 (1996). The intent necessary to sustain a conviction for first-degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds. Id. (citing Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996)). Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict when it excludes every other reasonable hypothesis consistent with guilt. Id. Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. In such situations, the weight and value of testimony is a matter within the exclusive province of the jury. Williams v. State, 338 Ark. 178, 183, 992 S.W.2d 89, 93 (1999). On appellate review, it is only necessary for this court to ascertain that evidence which is most favorable to appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Mulkey, 330 Ark. at 116, 952 S.W.2d at 151(quoting from Williams, 325 Ark. at 436, 930 S.W.2d at 299).

The evidence in this case indicates that Thompson shot his wife sometime around 7:00 p.m. on the evening of August 24, 1997. The shot was fired into her neck at point-blank range. Thompson called a friend and told her that he had killed his wife sometime after 8:00 p.m., but no call was placed to 911 until 8:24, an hour and a half after the shooting occurred, at which time Thompson told the dispatcher that he had shot his wife. From the testimony of both the Mayflower Chief of Police and the Faulkner County Coroner, the shower was still wet when they arrived at the house between 8:45 and 9:00 that evening, indicating that someone had recently used it. Crime lab analysis of the gun used in the shooting showed that it had been wiped clean of fingerprints and showed no traces of blood or tissue, which would be expected in a tight contact shooting such as this.

From the foregoing evidence, the jury could have reasonably inferred that Thompson killed his wife, took a shower to clean any blood and gunshot residue off him, wiped the gun used in the shooting clean of any fingerprints, blood, or tissue, and only then did he call a friend and 911 for assistance. While the verdict was based on circumstantial evidence, it is clear that the evidence excludes any other hypothesis consistent with innocence. Thompson’s attempts to cover up his connection to the crime were properly put before the jury, see Brenk v. State, 311 Ark. 579, 585, 847 S.W.2d 1, 5 (1993), and the jury could have properly considered this evidence as proof of a purposeful mental state. See Mulkey, 330 Ark. at 117, 952 S.W.2d at 151.

Thompson’s opposing argument is based on the complex nature of the injury inflicted on the victim, as described in the medical examiner’s testimony. He admits that he would have known that such a shot would cause serious injury, but argues that he did not have a sufficient knowledge of the human nervous and vascular system to have the purpose of causing the victim’s death. If he had possessed such a purpose, he says, he would have shot her in the head “where it would do more good.” Nonetheless, it is axiomatic that one is presumed to intend the natural and probable consequences of his actions. Smith v. State, 337 Ark. 239, 242, 988 S.W.2d 492, 493 (1999) (citing Walker, 324 Ark. at 109, 918 S.W.2d at 173). When one puts a .38 caliber pistol directly up against another person’s neck and fires the gun, the natural and probable consequence of that act is the death of the victim. Thompson’s lack of a medical degree notwithstanding, he indisputably shot his wife in the neck, and whether he knew the precise mechanics of how the shot would kill her is a meritless argument.

In his second point, Thompson asserts that the trial court erred by not severing the first-degree murder charge from the felon-in-possession charge. Under Ark. R. Crim. P. 22.2(a), if two offenses have been joined because they are of the same or similar character, but were not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses. However, the defendant’s motion for severance must be timely made before trial, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known. Severance is waived if the motion is not made at the appropriate time. Ark. R. Crim. P. 22.1(a).

Appellant concedes that he never moved to sever or object to the joining of the charges. Indeed, he acknowledges that he raises the issue for the first time on appeal and that this court will not hear issues for the first time on appeal. However, he asks us to conclude that the trial judge should have, on his own motion, severed the two charges for separate trial. He relies on Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). There, we held that there were four possible exceptions to the rule that issues will not be heard for the first time on appeal, two of which appellant suggests could apply to his situation. First, he argues that the trial court should have intervened on its own motion to correct some serious error; failing that, he next urges that the court below should have determined that the failure to move for severance was an error which affected his substantial rights.

To support this latter argument, Thompson directs us to Sutton v. State, 311 Ark. 435, 844 S.W.2d 350 (1993), in which this court held that it was reversible error for the trial judge to refuse to sever a murder charge from a felon in possession charge. The error in that case arose from the fact that evidence supporting conviction on the murder charge was weak, and that the secondary charge created an undue degree of prejudice in the minds of the jury. However, unlike the situation here, the defendant in Sutton had made a pretrial motion to sever which the trial court denied. As a result, this court held that Sutton’s motion was sufficient to preserve his severance issue on appeal.

When, as here, no motion for severance has ever been made, Rule 22.1(a) provides us with an answer: such motions must be made timely before trial. In short, our rules and case law recognize that even if one has a right to sever, that right can be waived, and the issue cannot be raised for the first time on appeal.

For the reasons stated above, we affirm. Pursuant to Ark. Sup. Ct. R. 4-3(h), we have reviewed the record and find no reversible error.


author: Donald L. Corjbin, Judge.

text:
    STATE of Arkansas v. Dewayne Dee DILLARD
    CR 99-225
    998 S.W.2d 750
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellant.

      Dunham & Faught, P.A., by: James Dunham, for appellee.
   Donald L. Corjbin, Judge.

Appellee Dewayne Dee Dillard was convicted in the Sebastian County Circuit Court of two counts of first-degree sexual abuse and sentenced to eight years’ imprisonment. This court affirmed the convictions. See Dillard v. State, 333 Ark. 418, 971 S.W.2d 764 (1998). Dillard then filed a petition for postconviction relief, pursuant to Ark. R. Crim. P. 37, asserting that his trial counsel was ineffective for failing to interview and subpoena two witnesses who would have testified that one of the victims was untruthful. The circuit court granted the petition, and the State of Arkansas brings this appeal. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (7). We affirm.

Before we reach the merits of this appeal, we must first address Dillard’s argument that the State may not appeal from the grant of a Rule 37 petition. The State responds by contending that Rule 37 proceedings are civil in nature, and that this appeal is brought pursuant to Rule 2(a)(3) of the Arkansas Rules of Appellate Procedure—Civil (providing for appeal from an order granting a new trial). We agree with the State, as this court has repeatedly recognized that postconviction proceedings under Rule 37 are civil in nature. See, e.g., Cravey v. State, 306 Ark. 487, 815 S.W.2d 933 (1991); Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990) (per curiam); Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1990) (per curiam). Indeed, this court has recently decided appeals by the State from grants of postconviction relief. See State v. Clemmons, 334 Ark. 440, 976 S.W.2d 923 (1998); State v. Her-red, 332 Ark. 241, 964 S.W.2d 391 (1998); State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998). Having thus determined that the appeal is properly before us, we turn to the merits of the case.

The record reveals that Dillard was convicted of two counts of first-degree sexual abuse involving two minor girls: S.S. and T.L. During the course of the trial, Dillard maintained that the girls were lying. The only witness called by the defense was Dillard himself. Dillard alleged in his petition that his trial counsel, John Settle, was ineffective for failing to interview and subpoena two potential defense witnesses: Samantha Bay, S.S.’s sister, and Jimmy Lambert, T.L.’s brother. At the hearing, Dillard testified that Bay would have testified that S.S. was not a truthful person, and that she did not believe S.S.’s accusations against Dillard. Dillard stated that Lambert was prepared to testify that S.S. had made up the allegations against Dillard.

Dillard maintained that he had informed Mr. Settle about these two witnesses. He stated that Mr. Settle assured him that he did not need any witnesses because he was going to rely primarily on the motion for severance of the two charges. He stated that Mr. Settle said that he was going to continue to rely on the severance motion up to the day of trial and beyond. He stated that Mr. Settle told him that there would be no problem in obtaining a severance through an appeal, and that he should not worry about it because he would be entitled to a new trial on appeal. The trial record reflects that the only witness called by the defense was Dillard himself.

Mr. Settle testified that he was aware that Bay might have held the opinion that S.S. had a problem telling the truth and had a reputation for dishonesty. He indicated that her testimony, as described in the Rule 37 petition, would have been helpful to the defense. He stated that he knew that Dillard’s trial was going to come down to a swearing match between Dillard and the two victims. Mr. Settle conceded, however, that he had never spoken with Bay about her potential testimony, and he maintained that he made the decision not to call her as a witness based upon his experience as a criminal defense attorney. He explained that he was aware that Bay hated Dillard, and that she had stated that she hoped he rotted in jail or was hanged by a rope. He stated that Bay was not someone he wanted to “let loose on the stand.” Mr. Settle agreed with Dillard’s counsel, however, that he could have avoided the unfavorable testimony by simply not asking Bay her opinion of Dillard.

Mr. Setde denied having any knowledge of Lambert’s testimony, which he stated would have been extremely helpful to the defense. He denied having ever been informed by Dillard of this witness’s existence. In contrast, Dillard’s father, Erbie Dillard, testified that he was present during a conference with Mr. Settle when Dillard tried to get him to call Lambert as a witness. Erbie Dillard stated that Mr. Settle indicated that he did not think they would need to call any witnesses.

The trial court granted Dillard’s petition on the ground that trial counsel was ineffective in regard to both witnesses’ testimony. The trial court found that counsel was ineffective for relying entirely on Samantha Bay’s statement to the authorities and failing to interview her and make an independent evaluation of her potential testimony. The trial court also found that counsel was ineffective for failing to interview and call Jimmy Lambert as a witness at Dillard’s trial. The trial court found further that Dillard’s trial had been prejudiced in these two instances. On appeal, the State raises three points for reversal. We find no merit and affirm the trial court’s order.

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced his defense. See Clemmons, 334 Ark. 440, 976 S.W.2d 923; Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). Unless the petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. In other words, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Herred, 332 Ark. 241, 964 S.W.2d 391; Slocum, 332 Ark. 207, 964 S.W.2d 388. With this standard in mind, we discuss the points on appeal.

I. Samantha Bay’s Testimony

The trial court found that Mr. Settle was ineffective for failing to interview Samantha Bay, S.S.’s sister, and make an independent evaluation of her potential testimony. The trial court found further that Bay’s testimony related to the credibility of one of the victims, S.S., to the extent that the victim was not a truthful person and could not be believed. The State argues that Mr. Settle’s decision not to call Bay as a witness was a matter of trial strategy, and that the decision not to interview her was reasonable because she was not going to be called as a defense witness. The State argues further that even if Mr. Settle’s decision not to interview Bay or call her as a witness was unreasonable, Dillard was not prejudiced because Bay would have been a mere character witness. We disagree.

The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Trial counsel must use his or her best judgment to determine which witnesses will be beneficia! to the client. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996); Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995). When assessing an attorney’s decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Johnson, 325 Ark. 44, 924 S.W.2d 233. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland, 466 U.S. 668. Wicoff, 321 Ark. 97, 900 S.W.2d 187.

In Wicoff, 321 Ark. 97, 900 S.W.2d 187, this court reversed the trial court’s denial of postconviction relief due to counsel’s errors in (1) failing to investigate the victims’ prior allegations of sexual abuse, and (2) fading to call the defendant’s grandmother, Ms. Dickerson, who would have testified that one of the young victims told her that she had fabricated the allegations against the defendant. Trial counsel explained that he had not called Ms. Dickerson because she was a relative of the defendant. This court rejected that explanation, holding:

[W]e cannot say that, under the facts presented, [trial counsel’s] decision was supported by reasonable professional judgment. At trial, the evidence against Wicoff was limited to the testimony of the tivo girls. The doctor who examined them testified that there was no physical evidence of sexual abuse, and that, in his opinion, the girls’ accounts of the incidents were reliable. As such, the credibility of the girls’ testimony was highly relevant, as their testimony was, in essence, the State’s only evidence against Wicoff. Ms. Dickerson’s testimony that the eleven-year-old had admitted to her that she had fabricated the incident would have served to impeach the minor’s credibility. Although Ms. Dickerson was available to testify to this conversation at trial, counsel for WicofF did not call her or any witnesses on his behalf. Counsel for Wicoff readily admitted, however, through his own testimony at the Rule 37 hearing, that Ms. Dickerson’s testimony “would have shed doubt on [Wicoffs] guilt [sic].

Id. at 102, 900 S.W.2d at 189-90 (emphasis added). This court concluded that there was a reasonable probability that the outcome of the trial would have been different, but for counsel’s errors.

Here, Mr. Settle conceded that he was aware that Bay might have held that opinion that S.S. had a problem telling the truth and had a reputation for dishonesty. Yet he declined to interview her despite his knowledge that Dillard’s trial was going to come down to a swearing match between Dillard and the two victims. As such, his failure to interview the girl was unreasonable in light of the holding in Wicoff. Moreover, we concur with the trial court’s finding that Dillard’s trial was prejudiced by counsel’s error in this instance. It is undisputed that there was no physical evidence presented in support of the charges against him. Like the situation in Wicoff, the State’s case rested almost entirely on the testimony of the two young victims. Accordingly, the victims’ credibility, or lack thereof, was of crucial importance. Mr. Settles’s explanation that he did not call Bay because he was afraid that she would reveal her hatred for Dillard is unreasonable, as it clearly would have been to the defense’s advantage to have a witness who admittedly hated the defendant testify that the victim, the witness’s own sister, was not to be believed.

II. Jimmy Lambert’s Testimony

During the Rule 37 hearing, Lambert testified that a couple of weeks prior to the alleged incident, S.S. talked about being mad at Dillard and how she would call the cops and tell them that Dillard had raped her. Lambert stated that he told Dillard that he was willing to testify at the trial; however, Lambert stated that.he was never contacted by Mr. Settle regarding his testimony. Mr. Settle admitted that Lambert’s testimony would have been extremely helpful, but he maintained that he had not been aware of the testimony. The trial court was not persuaded by Mr. Settle’s claim, as it found that counsel was ineffective for failing to interview Lambert and for failing to call him as a defense witness.

The State makes no argument regarding trial counsel’s failure to interview Lambert and call him as a defense witness. Rather, the State asserts that Dillard was not prejudiced by trial counsel’s decision not to call Lambert because there was other evidence supporting his defense that S.S. had made up the allegations against him. This “other evidence” referred to by the State is the testimony of Detective Holohan, who testified that S.S. told him that she hated Dillard and that whenever she was mad at someone, she took it out on them. Holohan also testified that Dillard told him that S.S. was making up the allegations because she did not like him and was trying to undermine his relationship with her mother. The State contends that Lambert’s testimony would have been cumulative, and its omission was thus not prejudicial. We disagree that his testimony was merely cumulative.

As discussed in the previous point, the victims’ credibility, or lack thereof, was of crucial importance to the defense, as the State’s case against Dillard rested almost entirely on the testimony of the two girls. Jimmy Lambert is the brother of T.L., one of the victims in this case. Like Bay, Lambert’s relationship to one of the victims in this case lends credibility to his testimony, as it may have tended to undermine the entire case against Dillard. His testimony was therefore of chief importance to the defense, and would likely have carried more weight than the testimony offered by Dillard or Detective Holohan. Thus, for the reasons explained in Wicoff, 321 Ark. 97, 900 S.W.2d 187, we cannot say that the trial court erred in finding that Mr. Settle’s decision not to call Lambert as a defense witness was prejudicial to Dillard’s trial.

III. Prejudice to the Count Involving T.L.

For the final point for reversal, the State argues that, at a minimum, the trial court’s ruling must be reversed as to the charge involving the sexual abuse of T.L. The State submits that each of the errors alleged by Dillard pertained only to the credibility of S. S. and did not call into question T.L.’s credibility. Thus, the State asserts, Dillard should only receive a new trial on the count involving S.S. Although we agree with the State that the proffered testimony from both witnesses involved the lack of veracity of only one of the victims, we cannot say that the proffered testimony would not have otherwise impacted the charges involving T. L.

Dillard was tried for one count of rape against S.S. and one count of first-degree sexual abuse against T.L. The jury found Dillard guilty of engaging in first-degree sexual abuse with both victims. The only issue pursued on appeal was whether the trial court erred in refusing to grant Dillard’s motion to sever the charges. This court concluded that the allegations made by the girls were so similar that each victim’s testimony would have been relevant and admissible in separate trials:

The thirty-five-year-old Appellant obtained access to both young female victims through his relationships with their respective parents; he stayed with S.S.’s mother off and on, and visited T.L.’s home frequently during the time frame at issue. Additionally, T.L. had lived with S.S.’s mother and Appellant for a brief period after T.L.’s house had burned. As such, we conclude that Appellant formed intimate relationships with both victims. The similarity of the manner in which Appellant committed the acts is remarkable. Both victims testified that Appellant made sexual advances toward them and grabbed their breasts on numerous occasions. S.S. testified that Appellant raped her after she had refused his ongoing demands for sexual intercourse. T.L. testifled that Appellant threatened to rape her if she would not consent to sex. Both victims testified that he told them that sex would not hurt and would only take about three minutes. Moreover, the overlapping time frame of June 19, 1996, through August 2, 1996, also weighs in favor of proving Appellant’s intent, scheme, or plan.

Dillard, 333 Ark. 418, 426, 971 S.W.2d 764, 768.

To prevail on a claim of ineffective assistance of counsel, the petitioner must only show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent counsel’s errors. Thomas, 330 Ark. 442, 954 S.W.2d 255. Because the testimony of the girls was so similar, we cannot say that the trial court clearly erred in concluding that Dillard’s trial was prejudiced by counsel’s errors. Accordingly, the judgment of the trial court is affirmed.

       Though not pertinent to this appeal, Dillard also alleged that trial counsel was ineffective for failing to call Mrs. Louise Jones, S.S.’s mother.


author: Robert L. Brown, Justice.

text:
    Janet ISBELL v. MARY KAY COSMETICS a/k/a Mary Kay, Inc.
    98-1099
    999 S.W.2d 673
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      Stephens Law Firm, by: K. Gregory Stephens and Janis C. Speed, for appellant/cross-appellee.

      Wright, Lindsey & Jennings LLP, by: Roger D. Rowe, Nancy Bellhouse May, and Troy A. Price, for appellee/cross-appellant.
   Robert L. Brown, Justice.

Appellant Janet Isbell appeals an order of the trial court granting her attorney’s fees and costs under the Arkansas Franchise Practices Act. See Ark. Code Ann. § 4-72-208(b) (Repl. 1996). She contends that the trial court abused its discretion in that the fees and costs awarded were too small. In a related opinion handed down today in Mary Kay, Inc. v. Janet Isbell, 338 Ark. 556, 999 S.W.2d 669 (1999), this court reversed the trial court’s order and held that Janet Isbell was not covered by the Arkansas Franchise Practices Act. We dismissed her case. As a consequence of our decision in Case 98-489, Ms. Isbell’s petition for attorney’s fees and costs under the act is moot. This appeal is likewise dismissed.

Appeal dismissed.


author: Annabelle Clinton Imber, Justice.

text:
    Hayward CLEVELAND v. Lee FRAZIER, Director, Department of Human Services
    98-1436
    999 S.W.2d 188
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      Jill Jones Moore, Rule XV Law Student; Totnttte T. Fullerton, Rule XV Law Student, and Leah Chavis, Rule XV Law Student; A. Felecia Epps, Supervising Attorney, University of Arkansas at Little Rock School of Law Legal Clinic, for appellant.

      Frank J. Wills, El, Office of Chief Counsel, for appellee.
   Annabelle Clinton Imber, Justice.

This is an appeal from the Pulaski County Circuit Court’s denial of Appellant Hayward Cleveland’s petition for writ of habeas corpus. Mr. Cleveland challenges the Pulaski County Probate Court’s jurisdiction to enter an order of commitment on May 21, 1993, whereby he was ordered to remain in the custody of the Director of the Department of Human Services (“DHS”) for continued treatment pursuant to Act 911 of 1989, codified at Ark. Code Ann. § 5-2-314 (Repl. 1997). Specifically, he contends that the probate court lacked jurisdiction because its jurisdiction was based on a facially invalid order of acquittal entered by the Jefferson County Circuit Court on April 6, 1993. Mr. Cleveland’s argument is without merit, and we affirm.

On August 20, 1992, Mr. Cleveland was charged with the crime of robbery in Jefferson County Circuit Court. Shortly thereafter, Mr. Cleveland’s attorney filed a motion pursuant to Ark. Code Ann. § 5-2-305 (Repl. 1997) to have his client committed to the Arkansas State Hospital for an examination to determine Mr. Cleveland’s capacity to understand the proceedings against him and to determine whether his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired at the time of the alleged offense. Pursuant to Ark. Code Ann. § 5-2-305, the circuit court entered an order on September 8, 1992, that committed Mr. Cleveland to the Arkansas State Hospital for examination. According to a docket entry in the record, the circuit court then entered another order of commitment on December 27, 1992. This order, however, was entered pursuant to Ark. Code Ann. § 5-2-310 (Repl. 1997), which authorizes the court to suspend the proceedings if it determines that the defendant lacks fitness to proceed and to commit the defendant to the custody of DHS “for detention, care, and treatment until restoration of fitness to proceed.”

Finally, on April 6, 1993, the circuit court entered an order of acquittal because of mental disease or defect, which included the following findings:

1. The above-named Defendant was charged with the crime of Robbery, violation of Ark. Code § 5-12-102.
2. That the Defendant was examined by the Arkansas Department of Human Services, Division of Mental Health Services pursuant to Arkansas Code Annotated § 5-2-305, to determine his capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.
3. That said Arkansas Department of Human Services, Division of Mental Health Services has subsequently completed the evaluation pursuant to Order of this Court, and the findings concerning the Defendant’s capacity or fitness to proceed are made a part of this order.
4. That based on the evaluation of the Department of Mental Health Services the State of Arkansas agrees that it would be in the best interest of justice that the Defendant be acquitted.
5. That this offense involved bodily injury to another person or serious damage to the property of another, or involved a substantial risk of such injury or damage. That pursuant to Section 3(a)(1) of Act 911 of 1989 the Defendant is committed to the custody of the Director of the Department of Human Services for further examination by a psychiatrist or licensed psychologist.
6. That the Director of the Department of Human Services shall file the psychiatric or psychological report with the probate court having jurisdiction within (30) days following entry of this order.
7. That pursuant to Section 3(a)(2) of Act 911 of 1989 a hearing shall take place not later than (10) days following the filing of the above report in Probate Court. If the acquittee is in need of Counsel for said hearing, it shall be appointed immediately upon the filling of the original petition or report.
8. Inasmuch as the Respondent is being committed to the custody of the Director of the Department of Human Services, which is outside the immediate jurisdiction of this Court, and the Psychiatrist examining the Defendant resides in Little Rock, it would be impossible to complete an evaluation and return the Respondent and the necessary witnesses for a hearing on the matter within the time constraints of Section 3(a)(2) of Act 911 of 1989; therefore the hearing on the matter may be held before a probate judge of the Sixth Judicial District pursuant to Section 4 of Act 28 of the Third Extraordinary Session of 1989.
Wherefore, this Court finds that at the time of the offense, the Defendant lacked capacity, a[s] a result of mental disease or defect, to conform his conduct to the requirements of the law or to appreciate the criminality of his conduct, and further finds that the Defendant should be committed to the care and custody of the Director of Human Services for the treatment and evaluation.

As contemplated by the order of acquittal and pursuant to Ark. Code Ann. § 5-2-314, the Pulaski County Probate Court held a hearing, and its order of commitment entered on May, 21, 1993, found that Mr. Cleveland still posed “a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect,” and ordered him to remain in the custody of DHS for continued treatment.

Almost three years later, on March 15, 1996, the Pulaski County Probate Court entered an order of conditional release pursuant to Ark. Code Ann. § 5-2-315 (Repl. 1997) that allowed Mr. Cleveland to reside at the Birchtree Community in England, Arkansas, under certain specified conditions. However, within one month, on April 17, 1996, the Lonoke County Probate Court entered an order that revoked Mr. Cleveland’s conditional release and returned him to the custody of the Director of DHS at the Arkansas State Hospital pursuant to Ark. Code Ann. § 5-2-316 (Repl. 1997).

When Mr. Cleveland filed his petition for writ of habeas corpus on April 21, 1998, in the Pulaski County Circuit Court, he remained in the custody of the Director of DHS at the Arkansas State Hospital. The circuit court promptly held a hearing on May 13, 1998, and then entered its order denying the petition for a writ of habeas corpus on October 20, 1998. Mr. Cleveland now appeals the denial of his petition. Our review of habeas corpus proceedings is by appeal. In re Habeas Corpus Proceedings, 313 Ark. 168, 852 S.W.2d 791 (1993).

For his first argument on appeal, Mr. Cleveland contends that the probate court lacked jurisdiction when it committed him to the custody of DHS in 1993. He acknowledges that the probate court’s jurisdiction over a criminal defendant is established when the circuit court enters an order of acquittal and commitment pursuant to Ark. Code Ann. § 5-2-314. Hattison v. State, 324 Ark. 317, 920 S.W.2d 849 (1996). However, Mr. Cleveland asserts that the order of acquittal entered by the Jefferson County Circuit Court of April 6, 1993, was facially invalid because the circuit court failed to follow the requirements of Ark. Code Ann. § 5-2-313 (Repl. 1997) when it did not make a factual determination in the order of acquittal that Mr. Cleveland committed the robbery. He then suggests that such an invalid order did not establish lawful jurisdiction in the probate court. Accordingly, Mr. Cleveland challenges the probate court’s jurisdiction to commit him to the custody of the Director of DFiS in 1993.

As previously stated, Mr. Cleveland first argues that the order of acquittal entered by the circuit court in 1993 was invalid because it did not comply with Ark. Code Ann. § 5-2-313, which provides in relevant part that:

On the basis of the report filed pursuant to § 5-2-305, the court may . . . enter judgment of acquittal on the ground of mental disease or defect if it is satisfied that, at the time of the conduct charged, the defendant lacked capacity, as a result of mental' disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality'of his conduct. If-the defendant did not raise the issue of mental disease or dtfect pursuant to § 5-2-305(a)(1), then the court shall he required to make a factual determination that the defendant committed the offense and that he was suffering from a mental disease or defect at the time of the commission of the offense.

Ark. Code Ann. § 5-2-313 (emphasis added). According to this provision, it is only when the defendant does not raise the issue of mental defect pursuant to Ark. Code Ann. § 5-2-305(a)(l)* that the court is required to make a factual determination that the defendant committed the offense, and that he was suffering from a mental disease or defect at the time the offense was committed.

Mr. Cleveland alleges that he did not raise the issue of mental disease or defect, which circumstance makes the order of acquittal invalid because it does not include the factual determination that he committed the robbery as required by Ark. Code Ann. § 5-2-313. The Director of DHS contends that the order of acquittal entered by the circuit court is valid on its face and establishes jurisdiction in the probate court over all subsequent commitment proceedings.

A writ of habeas corpus will only be issued if the commitment was invalid on its face, or the committing court lacked jurisdiction. Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997); McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992). Therefore, in determining whether the denial of a writ of habeas corpus was proper, this court must look for an invalidity only on the face of the order.

Mr. Cleveland urges the court to look beyond the face of the order, and to consider the record as a whole. In support of this argument, he relies upon this court’s holdings in Robinson v. Shock, 282 Ark. 262, 667 S.W.2d 956 (1984) and Rowland v. Rogers, 199 Ark. 1041, 137 S.W.2d 246 (1940). However, those cases are distinguishable because Robinson involved juvenile defendants, and Rowland was a civil commitment case. As the court noted in Robinson, juvenile cases and civil cases involve considerations which are not present in the context of an adult defendant, such as Mr. Cleveland:

The safeguards for due process and subsequent relief that have developed around the criminal process are not as available to [civilly committed] state hospital inmates, or to juvenile offenders committed to the custody of the state.

Robinson, supra. Furthermore, Robinson and Roland were decided before the Arkansas General Assembly enacted substantial amendments to the criminal commitment statutes in 1989. Act 911 of 1989, codified at Ark. Code Ann. § 5-2-301 et seq. We, therefore, hold that this court will not go beyond the face of a criminal commitment order to determine its validity. We shall continue to adhere to the well-established principle that a writ of habeas corpus will issue only if the criminal commitment order was invalid on its face.

With regard to Mr. Cleveland’s argument that the acquittal order was not valid because there was no factual determination as required by Ark. Code Ann. § 5-2-313, we must look only to the face of the acquittal order to determine whether or not Mr. Cleveland raised the issue of mental disease or defect. The acquittal order, previously quoted above, does not indicate on its face who raised the issue of mental disease or defect. As a result, we cannot say that Mr. Cleveland did not raise that issue or that Ark. Code Ann. § 5-2-313 was not properly followed. For this reason, we conclude that the order of acquittal has not been shown to be invalid on its face, and the circuit court’s denial of a writ of habeas corpus was proper.

For his second point on appeal, Mr. Cleveland also contends that Ark. Code Ann. § 5-2-313 unconstitutionally deprives a criminal defendant of his right to a speedy and public jury trial under the United States Constitution and the Arkansas Constitution. This argument, however, has not been preserved for review on appeal. The circuit court failed to make a ruling on the constitutionality of the statute in its order denying Mr. Cleveland’s petition for a writ of habeas corpus. We are thus precluded from addressing that issue. Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998); Jackson v. State, 334 Ark. 406, 976 S.W.2d 370 (1998).

Affirmed.

       Ark. Code Ann. section 5-2-305(a)(l) (Repl. 1997) states:
      “(a) Whenever a defendant charged in circuit court:
      (1) files notice that he intends to rely upon the defense of mental disease or defect, or there is reason to believe that mental disease or defect of the defendant will or has become an issue in the cause;”


author: Ray Thornton, Justice.

text:
    James T. McFARLAND v. Mark LINDSEY, Judge, West Fork Municipal Court
    CR 98-1419
    2 S.W.3d 48
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      Murphy & Carlisle, by. Marshall N. Carlisle, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, James McFarland, sought a writ of prohibition from the Washington County Circuit Court to prevent the West Fork Municipal Court from trying him for Driving While Intoxicated and Driving off the Pavement. McFarland alleged that the West Fork Municipal Court wrongly denied his motion to dismiss the charges on speedy-trial grounds. The Circuit Court declined to grant his petition for a writ of prohibition and McFarland seeks to appeal to this court pursuant to Ark. R. Crim. P. 28.1, which provides that criminal charges must be dismissed if the defendant is not tried within twelve months. The denial of a writ of prohibition is not an appealable order, but we may treat the appeal as a petition to this court for a writ of prohibition. Casoli v. State, 302 Ark. 413, 790 S.W.2d 165 (1990) (citing Robinson v. Sutterfield, 302 Ark. 7, 786 S.W.2d 572 (1990)). We deny the writ because the abstract does not contain all the information necessary for us to resolve the issues presented in appellant’s petition.

Appellant was arrested on April 19, 1997, and cited to West Fork Municipal Court. A trial date was set, but several continuances were granted. Appellant filed a Motion to Dismiss on April 28, 1998, on the grounds that more than one year had elapsed since his arrest. On April 28, 1998, the trial judge denied the motion. Appellant filed a Petition for Writ of Prohibition in Washington County Circuit Court, and a stay of the municipal court proceedings was granted, pending the outcome of the hearing on the writ of prohibition. On August 17, 1998, the circuit court denied appellant’s motion. From that decision appellant brings this appeal, calling into question whether the procedures utilized by the West Fork Municipal Court were sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i), which required that all excluded periods of time be set forth by the court in a written order or docket entry.

A party seeking prohibition must produce a record sufficient for the court’s review, Sherwood v. Glover, 331 Ark. 124, 958 S.W.2d 526 (1998), and in prohibition cases in which briefs are filed, such as this, an abstract is required. Dean v. Plegge, 331 Ark. 141, 958 S.W.2d 5 (1998). A petitioner seeking a writ of prohibition must produce a record sufficient to show that the writ is clearly warranted. Sherwood, supra. As in all such cases, the record is confined to that which is abstracted. Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997). The abstract must contain “material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” Ark. Sup. Ct. R. 4-2(a)(6) (1999).

Appellant relies heavily in his argument upon the docket sheets from the municipal court, whose entries reflect the continuances granted by the court; the abstract of the testimony, however, suggests that some continuances were at the request of appellant. He has failed to abstract this exhibit relating to the continuances granted as shown by the entries on the docket sheet. Furthermore, appellant has omitted from his abstract of the hearing below the circuit judge’s findings at the conclusion of the hearing concerning what periods of time he determined to be excludable from the speedy-trial calculation. Thus, we cannot know the periods of time that the trial court found to be excluded in accordance with Ark. R. Crim. P. 28.3. From the abstract presented, we have no way of resolving the issue whether a writ should have been granted. Consequently, appellant’s abstract is flagrantly deficient under Ark. Sup. Ct. R. 4-2 (1999).

For these reasons, we summarily deny McFarland’s petition for a writ of prohibition.

Denied.

       This requirement was eliminated by our per curiam order amending the speedy trial rules, In Re: Rules of Criminal Procedure—Rules 28, 29, and 30—Speedy Trial, 337 Ark. 627 (1999).


author: Lavenski R. Smith, Justice.

text:
    Elgin Gregory KING v. STATE of Arkansas
    CR 98-1452
    999 S.W.2d 183
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      John Stratford, for appellant.

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

Elgin King appeals his second conviction for the first-degree murder of Willie Simpkins from Pulaski County Circuit Court. Appellant was originally charged by felony information with capital murder and tried by jury. The jury found Simpkins guilty of the lesser included offense of first-degree murder and sentenced him to forty years. On appeal, this court reversed the trial court for failure to instruct the jury on witness Vernon Scott as a possible accomplice. In Appellant’s second trial the prosecution sought to prove first-degree murder. The jury, once again, found Simpkins guilty but this time sentenced him to sixty years. On this appeal, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1 —2(a) (7). See King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996) (King I). Appellant asserts three errors by the trial court in this second appeal. First, insufficiency of the evidence; second, failure to declare a witness an accomplice as a matter of law; and, third, admission of evidence of appellant’s gang involvement. None of appellant’s assertions have merit and we therefore affirm.

Facts

On October 4, 1993, North Little Rock police discovered the body of an adult male in a silo just south of an area called the “Dixie Addition” of that city. Police recovered a rubber mask from the scene. The victim had suffered multiple gunshot wounds. Earlier in the day, a Mrs. Simpkins from Dixie Addition had reported her son missing. Based upon fingerprint records, the authorities identified the body to be that of Willie Simpkins. In the course of their investigation, police interviewed Vernon Scott also of the Dixie Addition. Over the course of several visits, Scott told police that on September 30, 1993, he had been asked by Kenneth Slocum to get Willie Simpkins to go to the Hattison home so Slocum could talk to Simpkins. Scott agreed and brought Simpkins to the designated meeting place. Sometime after Scott and Simpkins arrived at the Hattison home, Elgin King and Kenneth Slocum entered the home armed with handguns. According to Scott, King wore a rubber mask and Slocum wore a ski mask. Scott recognized them by their clothing and by their voices with which he was familiar. King and Slocum covered Simpkins’s head and bound him with duct tape. King went out the front door and Slocum took Simpkins out the side door. A few minutes later, Scott, while out on the street, heard multiple gunshots. Mr. Simpkins was not seen alive again.

Sufficiency of the Evidence

For his first point on appeal, Appellant contends the evidence was insufficient to justify conviction for first-degree murder. We consider sufficiency of the evidence before addressing other alleged trial errors. Williams v. State, 338 Ark. 97, 106 (1999). We do so in order to preserve a defendant’s right to freedom from double jeopardy. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Burris v. State, 330 Ark. 66, 70, 954 S.W.2d 209 (1997). Appellant moved for directed verdict at the close of the state’s case and then at the close of his case. Ordinarily, this would be sufficient to preserve the issue of sufficiency of the evidence for appellate purposes. However, as the State points out, Appellant failed to renew the directed-verdict motion after the State’s rebuttal testimony. The State argues that appellant thus faded to preserve the issue. We agree.

Our procedure rules require that a motion for a directed verdict be brought at the “conclusion of the evidence presented by the prosecution and again at the close of the case. . . .” Ark. R. Crim. P. 33.1. Close of the case means close of the whole case, in other words, after the last piece of evidence has been received. As we stated in Rankin, supra, “Even if a defendant renews his motion at the close of his case-in-chief, the requirement of the rule to renew the motion at the “close of the case” obligates the defendant to renew the motion again at the close of any rebuttal case that the State may present in order to preserve the sufficiency issue for appeal.” See also, Heard v. State, 322 Ark. 553, 57, 910 S.W.2d 663 (1995) [overruled on other grounds in MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998) ]; Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).

A review of the record reveals Appellant did not move for a directed verdict after the State’s rebuttal testimony. The Appellant closed his case when witness Lewis “Hatbox” Hattison could not be located and brought to the courtroom to testify. The Appellant then moved for a directed verdict based on insufficiency of the evidence. The State then called police Sgt. Mike Davis back to the stand as a rebuttal witness. Mr. Davis testified that Appellant was a member of the “Dixie Dog Pound,” the only gang in the Dixie Addition. The Appellant indicated he had no surrebuttal testimony to offer and the court began jury instruction. Hence, appellant made no motion for directed verdict at the close of the whole case. This court has repeatedly and emphatically held that, in order to preserve for appeal the issue of the sufficiency of the evidence in a criminal case, the appellant must move for a directed verdict both at the close of the State’s case and at the close of the whole case. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992); DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991); Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). We hold Appellant failed to preserve the question of sufficiency of the evidence by fading to move for a directed verdict after the State’s rebuttal testimony.

Accomplice as a Matter of Law

For his second point on appeal, Appellant contends the trial court erred in refusing to find Vernon Scott to be an accomplice as a matter of law. We considered and decided this identical issue in Appellant’s prior appeal (King I). We held that the trial court correctly refused to declare Scott an accomplice as a matter of law. King, supra. Flowever, we remanded the case to the trial court in order for the trial court to submit the accomplice issue to the jury. In Appellant’s second trial, the jury considered whether Scott was an accomplice. The jury decided that Scott was not an accomplice. Appellant does not argue in his brief that new or different facts were adduced at the second trial. The State contends the issue was resolved in the first appeal and that the law-of-the-case doctrine precludes any further consideration. We agree.

We recently reiterated the considerations for the doctrine’s application in Camargo v. State, 337 Ark. 105 (1999). In Camargo we stated,

The law-of-the-case doctrine ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. The doctrine is not inflexible and does not absolutely preclude correction of error, but it prevents an issue raised in the prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals. The doctrine precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal. Questions that have not been decided do not become law of the case merely because they could have been decided; at the same time, however, law-of-the-case principles are applied when a court concludes that an issue was resolved implicitly despite the lack of any explicit statement. Significantly the doctrine extends to issues of constitutional law. (Citations omitted.)

We have also recently noted that the appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998). A defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. McGehee v. State, 338 Ark. 152 (1999).

In King I we held, “The facts do not show conclusively that Scott was an accomplice. The trial court was correct in refusing to declare him an accomplice as a matter of law. ...” King, supra. On remand, the trial court submitted the accomplice question to the jury with appropriate instructions. The jury declined to answer in Appellant’s favor. Appellant does not assert that the evidence in the second trial varied materially from the evidence in the first trial. Therefore, the law-of-the-case doctrine precludes consideration of this issue on his second appeal.

Gang-Related Testimony

For his third and final point on appeal, Appellant contends the trial court abused its discretion in allowing testimony of Officer Mike Davis that Appellant belonged to the Dixie Dog Pound gang. Appellant objected on grounds of relevance and undue prejudice. Relevancy determinations are within the sound discretion of the trial court subject to reversal only if that discretion is abused. TB of Blytheville, Inc. v. Little Rock Sign & Emblem, Inc. 328 Ark. 688, 946 S.W.2d 930 (1997) Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). Additionally, prejudice, which is not presumed, must be shown or the trial court’s ruling will not be reversed. Wallace v. State 314 Ark. 247, 862 S.W.2d 235 (1993); Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996).

Although the record does not directly reflect it, the parties agree that the trial court granted a motion in limine to exclude evidence of gang activity. The pertinent, objected to testimony appears below:

Officer Davis testified:
Q And were you aware of any gang or street gangs in the Dixie Addition area based upon your experience?
A Yes, Sir. There is one gang in Dixie.
Q Okay. And, Sargent Davis, do you know whether or not this defendant, Mr. Elgin King, is in a gang?
A Yes, sir, I do.
Q Okay.
A He is.
Q And which gang is that?
A The Dixie Dog Pound. [TR 392-393.]

The State elicited this limited testimony that Appellant belonged to the Dixie Dog Pound gang pursuant to direction given by the trial court. After long discussion between the trial court and counsel, the court concluded that this limited testimony was admissible to rebut evidence offered by Appellant. Earlier, Appellant’s witness, Dewayne Turner, testified that State’s witness Dana Thrash had lied. Turner testified that Thrash was not assaulted in jail at Appellant’s behest, but because Thrash was “throwing up” gang signs. In the State’s case in chief, witness Thrash testified that Appellant approached him in jail with an offer. Specifically, that if he “took out” a witness, Appellant would help him get out of jail on bond. Thrash testified that he did not agree, and that later someone attacked him. Appellant, in his defense case, put on Dewayne Turner to provide evidence that Thrash had made up the story about Appellant approaching him, that Thrash had rehearsed the story in front of Turner, and that Thrash concocted it to deceive the authorities and gain an early release. The trial judge found Turner’s testimony opened the door to limited testimony about gang involvement because it implied Appellant was not involved in the assault by positing that a gang had done it for an unrelated reason. The trial court also noted Thrash’s credibility had been attacked by Appellant with testimony by Turner that he was in a gang. The trial court stated, “Yeah, I just think they’ve opened it by saying that this is gang activity and has nothing to do with this defendant, I think you can show this defendant’s a member of a gang, and it could very well have been related to that.” So Appellant’s gang membership then became admissible.

When a defendant opens the door to issues of character, the State is entitled to rebut those issues of character. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). As a consequence, the State introduced and the court admitted evidence that Appellant was a gang member. The State sought to expand the testimony. However, the trial court correctly restricted the rebuttal testimony to merely stating that Appellant was a gang member so as to limit it to rebutting Turner’s testimony. We have long recognized the propriety of “fighting fire with fire” when one of the parties opens the door with an untruthful statement, introduces inadmissible evidence, or makes an improper closing argument. See Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992); Wortman v. Shipman, 293 Ark. 253, 737 S.W.2d 438 (1987); Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984); Larimore v. State, 317 Ark. 111, 121, 877 S.W.2d 570 (1994). Moreover, an appellant generally can’t complain when he is the one who originally elicited the objectionable testimony. Hicks v. State, 327 Ark. 652, 664, 941 S.W.2d 387 (1997).

In the instant case, Appellant apparendy put Turner on the stand unaware he might raise the issue of gangs. However, Turner was Appellant’s witness, and therefore Appellant broached the subject of gangs. The trial court limited the rebuttal testimony of Officer Davis to match what had been brought out by Appellant. Turner testified that Thrash belonged to the Piru gang, from which the jury might infer the prison assault on Thrash was by a gang and did not involve Appellant. Officer Davis testified that Appellant belonged to the Dixie Dog Pound gang, allowing the jury to infer the assault conceivably could have involved Appellant. Based on the foregoing, we hold the trial judge did not abuse his discretion in admitting limited testimony of Appellant’s gang membership.

Affirmed.


text:
    Jerry Shelton DYE v. STATE of Arkansas
    CR 99-1023
    999 S.W.2d 197
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      Ben Beland, Public Defender, for appellant.
    No response.
   Per Curiam.

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

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motion for rule on the clerk is denied.


text:
    IN RE: Robert Fuller MEURER (Arkansas Bar ID #85108)
    99-427
    999 S.W.2d 196
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      Robert Fuller Meurer, pro se.

      Lynn Williams, for the Supreme Court Committee on Professional Conduct.
   Per Curiam.

On February 12, 1999, the Supreme Court Committee on Professional Conduct ordered Robert Fuller Meurer to make restitution of $18,000 to a former client, Ms. Tressia Russell. The order provided that Mr. Meurer was to make monthly installments of $300 until full restitution was made. On April 30, 1999, the Committee filed a petition asking this court to require Mr. Meurer to appear before this court and show cause why he should not be held in contempt for failing to comply with the terms of the February 12, 1999 order. The procedural background of this matter is more fully set out in In Re: Meurer, 337 Ark. 608, 990 S.W.2d 552 (1999) (per curiam).

Mr. Meurer appeared before this court on June 24, 1999, and entered a plea of guilty to the petition. On June 29, 1999, Mr. Meurer submitted an affidavit in mitigation, claiming several personal reasons why he had not complied with the Committee’s order. The Committee’s response, however, raised questions concerning the veracity of some of the information supplied by Mr. Meurer. Accordingly, we appointed a special master, The Honorable Perry Whitmore, to conduct a hearing on the matter. See In Re: Meurer, 338 Ark. 373, 993 S.W.2d 917 (1999) (per curiam).

On August 20, 1999, the special master filed his report and findings of fact with this court’s clerk. The report reflects that a hearing was conducted on August 16, 1999, during which Mr. Meurer failed to appear. The Committee appeared through its attorney Lynn Williams. Mr. Williams informed the special master that Mr. Meurer had telephoned that morning and had stated that he did not intend to appear. The hearing proceeded, and the following pertinent findings of fact were made:

1. Mr. Meurer has failed to make any payments to Ms. Russell, and has also failed to pay costs of $150 to the Committee.
2. Mr. Meurer’s affidavit was patently false in its description of a catastrophic domestic circumstance as contemporaneous to his failure to comply with the Committee’s order.
3. Mr. Meurer’s assertion that he had no complaints on his performance as an attorney other than Ms. Russell’s complaint was also false. Mr. Meurer was barred from appearing in the United States Bankruptcy Court and was under order by that court to repay $1,000 to his client.

Significantly, the special master found that the misstatements of fact were knowingly made by Mr. Meurer, and that such conduct reflects a disregard by Mr. Meurer of the serious nature of the Committee’s responsibility to the legal profession and his personal obligation to tell the truth in these circumstances.

Based on the findings of the special master, we hold Mr. Meurer in contempt of this court for willfully failing to comply with the Committee’s order. Pursuant to our inherent authority over matters involving the discipline of attorneys, we hereby reinvest authority in the Committee to make a recommendation to this court as to the appropriate sanction in this matter, pursuant to Section 7(D) of the Procedures Regulating Professional Conduct. Pending such recommendation from the Committee, Mr. Meurer is suspended from the practice of law in this state.


text:
    Kelly Patrick MILLS v. STATE of Arkansas
    CR 98-894
    999 S.W.2d 674
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      Appellant, pro se.
    No response.
   Per Curiam.

In 1985, Kelley Patrick Mills was charged with capital felony murder for the beating death of Nancy Sangalli, his girlfriend’s great-aunt. The State sought the death penalty against him. Shortly before trial, Mills agreed to testify against his girlfriend and co-defendant, Lisa Berry, in exchange for the prosecutor’s acceptance of his guilty plea. Mills fulfilled his obligation to testify against Ms. Berry and his plea was accepted.

Mills subsequently filed in the trial court a timely petition and amended petition for postconviction relief pursuant to Criminal Procedure Rule 37. In the petition, Mills alleged that he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment, and that his custodial confession was coerced. The trial court held a hearing on the petition in 1990 but did not enter an order denying relief until 1998. Mills now appeals that order. We affirm.

In this appeal, Mills repeats his argument concerning the voluntariness of his confession. He also argues that he is entitled to postconviction relief because of prosecutorial misconduct that occurred during plea negotiations. Specifically, he alleges that the prosecutor misadvised him concerning his eligibility for parole. According to Mills, the prosecutor told him that with a sentence of life without parole, he “would be out in ten years.” We find no merit to either of these arguments.

With regard to Mills’s claim that the prosecutor’s alleged statement about parole eligibility warrants postconviction relief, we conclude that Mills has failed to sustain his burden of proving that he was prejudiced by the prosecutor’s statements. Mills never alleged, during the hearing or otherwise, that he relied on any kind of parole eligibility when he decided to plead guilty. The abstract of the plea hearing, moreover, clearly indicates that Mills not only understood the meaning of “life without parole,” but also that his decision to plead guilty was motivated solely by his desire avoid the death penalty. The following is an excerpt of Mills’s statements during the plea hearing:

I want to change my plea which I have entered in this cause. . . . I understand that I am presently charged with the offense of capital murder and the offense of capital murder carries with it as the two alternatives for punishment life without parole and the death penalty. You have also explained to me what life without parole means and obviously the meaning of the death penalty. It is anticipated that if I chose to proceed to trial that the court would also instruct the jury as far as a possible charge of a lesser included offense of first-degree murder. I understand that the jury not only would consider the charge of capital murder but also the charge of first-degree murder. The penalty for first-degree murder is ten to forty years in the penitentiary or life with parole. (Emphasis added.) You also explained to me that there was a possibility that the jury could find me guilty of first-degree murder and the possibility that the jury could find me guilty of capital murder.
Part of that decision (to plead guilty) was the possibility of the death penalty. Another thing that influenced me to plead guilty to capital murder was the way the jurors talked in the jury room. It was the way they were asked questions about the death-qualified jury.

As can be seen, Mills understood that there was a possibility that a trial could end in a conviction for first-degree murder, and that in that circumstance, it was possible that he could receive a sentence for a term of years. His desire to waive the possibility of a conviction for first-degree murder and the corresponding possibility of a lighter sentence indicates his understanding of the contrast between “life without parole” and a sentence that carries the possibility of parole. Furthermore, Mills unequivocally states that it was the prospect of the death penalty, and his perception of the potential jurors’ inclination to sentence him to death, that motivated his decision to plead guilty. We therefore conclude that Mills understood that he would not be eligible for parole if he pleaded guilty to capital murder, and that it was his desire to avoid the death penalty, and not the alleged misstatements by the prosecutor, that was the basis of his decision to enter a plea. See Propst v. State, 335 Ark. 448, 983 S.W.2d 405 (1998).

Mills next argues that he is entitled to postconviction relief because the custodial statement that he gave soon after his arrest was coerced. This allegation cannot be raised in a Rule 37 petition that challenges a guilty plea. When a guilty plea is challenged, the sole issue is whether the plea was intelligendy and voluntarily entered with the advice of competent counsel. Branham v. State, 292 Ark. 355, 730 S.W.2d 226 (1987). When Mills pleaded guilty, he waived the right to challenge the voluntariness of his statement. Accordingly, postconviction relief on this issue is not warranted.

Affirmed.


text:
    David PARDUE v. STATE of Arkansas
    99-841
    999 S.W.2d 198
    Supreme Court of Arkansas
    Opinion delivered September 23, 1999

      Appellant, pro se.
    No response.
   Per Curiam.

In 1987, David Pardue was found guilty by a jury of robbery and sentenced to five years’ imprisonment. The court of appeals affirmed. Pardue v. State, CACR 88-127 (August 30, 1989). In 1998, Pardue filed in the trial court in Benton County a petition for writ of habeas corpus challenging the judgment. The petition was denied, and the record on appeal from the order has been lodged here. Appellant Pardue now seeks by motion to supplement the record and to proceed as an indigent.

The motion is denied, and the appeal dismissed as it is clear that the appellant could not succeed on appeal. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

There was no basis for appellant to file a petition for writ of habeas corpus in the trial court in 1998. First, he was not incarcerated as a direct result of the 1987 conviction, for which a term of five years’ imprisonment had been imposed, when he filed in the petition. Moreover, he did not contend that he was in custody in Benton County when he filed the petition there, and the Certificate of Service reflected that he was in fact incarcerated in a federal prison in Texas, apparently as a result of another conviction. Even if the five-year sentence imposed in 1987 had not been exhausted, a circuit court does not have jurisdiction to release on a writ of habeas corpus a prisoner not in custody in that court’s jurisdiction. Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Motion denied and appeal dismissed.