author: W. H. "DUB" ARNOLD, Chief Justice.

text:
    SHARP COUNTY SHERIFF’S OFFICE v. OZARK ACRES IMPROVEMENT DISTRICT and John Slater
    01-1237
    75 S.W.3d 690
    Supreme Court of Arkansas
    Opinion delivered May 23, 2002

      Roberts, Roberts, & Russell, P.A., by: Bud Roberts, Bruce D. Anible, and Ben Cormack, for appellant.

      Womack, Landis, Phelps, McNeill & McDaniel, by: Richard Lusby, for appellee Ozark Acres Improvement District.
   W. H. "DUB" ARNOLD, Chief Justice.

Ozark Acres Improvement District petitions for review from a 5-1 court of appeals decision reversing the Arkansas Workers’ Compensation Commission. See Sharp Cty. Sheriffs v. Ozark A. Imp., 75 Ark. App. 250, 57 S.W.3d 764 (2001). At issue is whether, under the dual-employment doctrine, a special employment relationship existed where Sharp County did not compensate the district’s employee for doing work for the sheriffs office. We granted the petition for review pursuant to Ark. Sup. Ct. R. 1-2(e) and now decide the case.

Upon a petition for review, we consider a case as though it had been originally filed in this Court. Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001); Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000); Maxey v. Tyson Foods, Inc., 341 Ark. 306, 18 S.W.3d 328 (2000); Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000); White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W.3d 98 (1999); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Id.; Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Pickett, 336 Ark. 515, 988 S.W.2d 3; ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

I. Summary of Facts and Procedural History

Appellant, Sharp County Sheriffs Department (“Sharp County”), appeals the Workers’ Compensation Commission’s adoption and affirmance of the administrative law judge’s determination that appellant was liable for workers’ compensation benefits as a special employer for a compensable injury suffered by John Slater on January 6, 1998.

John Slater, who had a substantial work history in law enforcement, was hired by the Ozark Acres Improvement District (“District”) as a security guard for the District. At the time he applied for the position, it was made known to Slater that the District wanted to hire a person who could be commissioned by Sharp County as a deputy, thus allowing the District to have a guard with law enforcement authority. Within a month after being hired by the District, and after being interviewed by Sharp County Sheriff Sonny Powell and undergoing a background check and physical examination, Slater was commissioned as a Sharp County deputy sheriff.

This commission increased Slater’s pay as a District employee to a level commensurate with the level of pay of a Sharp County deputy sheriff; however, the District was the only entity that provided Slater’s salary. Although Sharp County gave the District a $l,000-per-year grant because it had a commissioned law enforcement officer in its employ, it was undisputed that none of that money was used to pay Slater’s salary. Sheriff Powell explained that they made a grant in the same amount to other entities that employed a security guard who became deputized and was available on back-up call under a similar arrangement. Not only was the District the only entity that compensated Slater, it also provided him a truck and his law enforcement equipment, with the exception of a borrowed deputy’s uniform provided by Sharp County after being requested by the District, which Slater was required by the District to wear while working. In addition to the uniform, the only items provided to Slater by Sharp County were a badge and an identification card.

After his commission as a deputy, Slater was subject to being called by Sharp County to assist on calls in the county that were outside of the District. However, he was only called as a last resort, and Sheriff Powell testified that Slater’s commission would not have been revoked if he did not respond to a call for assistance. Nevertheless, the District required that Slater respond to any calls for his assistance from Sharp County. The District continued to pay Slater for calls he answered outside the District during his regular duty hours and gave him “comp time” if he was required to respond to a Sharp County call while he was off duty.

On January 6, 1998, Slater was off duty when he received a call from the Sharp County Sheriffs Department asking him to respond to a call out in the county. Slater put on his deputy uniform and responded to the call. When he arrived and confronted the suspicious persons, he suffered unquestionably compensable injuries when he was attacked by one of the persons. The District originally paid Slater’s workers’ compensation benefits but later ceased payments, contending that Sharp County was liable for his injuries. The administrative law judge found that Sharp County was liable for payment of workers’ compensation benefits as a special employer, and the Commission affirmed and adopted that opinion as its own. Sharp County now appeals, arguing that it should not be considered a special employer liable for Slater’s workers’ compensation benefits or, in the alternative, that at the time Slater was injured, he was serving the interests of both Sharp County and the District, and the workers’ compensation benefits should therefore be shared between Sharp County and the District. We agree with Sharp County’s contention that it should not be liable for paying Slater’s workers’ compensation benefits and, therefore, reverse and remand the Commission’s decision.

II. Discussion

Arkansas Code Annotated § ll-9-102(10)(A) (Repl. 1996) defines “employee” as:

[A]ny person, including a minor, whether lawfully or unlawfully employed in the service of an employer under any contract of hire or apprenticeship; written or oral, expressed or implied; but excluding one whose employment is casual and not in the course of the trade, business, profession, or occupation of his employer, and excluding one who is required to perform work for a municipality, county, or the state or federal government upon being convicted of a criminal offense while incarcerated.

In Daniels v. Riley’s Health & Fitness Ctrs., 310 Ark. 756, 759, 840 S.W.2d 177, 178 (1992), this Court, quoting from Larson’s Law of Workmen’s Compensation, discussed the requirements that must be met in order for a special employer to become liable for workers’ compensation when a general employer lends an employee to it. Those three requirements are:

(a) The employee has made a contract for hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer; and
(c) The special employer has the right to control the details of the work.

Additionally, we also noted in Daniels:

Employment may also be “dual” in the sense that, while the employee is under contract of hire with two different employers, his activities on behalf of each employer are separate and can be identified with one employer or the other. When this separate identification can clearly be made, the particular employer whose work was being done at the time of injury will be held exclusively hable.

310 Ark. at 759, 840 S.W.2d at 178.

Sharp County contends that it cannot be held liable for Slater’s workers’ compensation benefits as a special employer because it does not meet any of the three requirements. We disagree in part. We hold that while Sharp County does meet the requirements of subsections (b) and (c), it does not meet the requirements of subsection (a) and is, therefore, not liable for workers’ compensation benefits as a special employer.

With regard to the third requirement in Daniels, there is no question that, at the time Slater was injured, he was performing services for Sharp County by answering a call out in the county for the sheriffs department. Although Sharp County argues that this also benefitted the District, the call to which Slater was responding was not in the District; therefore, it is difficult to see how Slater’s actions were benefitting the District at the time he was injured. Likewise, it was clear from Slater’s and Sheriff Powell’s testimony that Powell and other sheriffs department officers with a higher rank than Slater had the right to control Slater’s actions while he was performing work for the department, although there was testimony that such authority was never asserted. Sharp County argues that because such authority was never asserted, that requirement was not met. The requirement does not mandate that such authority was asserted, merely that the special employer had the right to control the details of the work. Sheriff Powell testified that he retained the right to take Slater’s commission as a deputy away from him if he believed that Slater was not performing at an acceptable level.

[T]he “control” which the special employer must assume need not extend to directing the technical details of a skilled employee’s activity. This would mean that skilled employees would hardly ever be employees under the act. What is essential ... is the right to control the time and place of the services, the person for whom rendered, and the degree and amount of services.

3 A. Larson, Worker’s Compensation Law § 67.05 (2000). The sheriff department’s right to control Slater’s work was clearly sufficient to meet the third requirement.

With regard to the first requirement, the District argues that there was “clearly a contract for hire” for Slater’s service as a deputy sheriff, contending that there was an express contract, given the interview process between Slater and Sheriff Powell. The District argues that at minimum, there was an implied contract for hire because Slater sought the commission as a deputy because of the authority and the increase in pay such a designation would provide him, and Sharp County approved the commission because it would receive the benefit of Slater’s back-up services as a deputy. The District contends that it is immaterial that it paid all of Slater’s salary.

Sharp County contends, however, that there was never a contract for hire, either express or implied, because Sharp County did not pay Slater for his services. We agree. In 3 A. Larson, Worker’s Compensation Law § 67.05 (2000), it is stated:

The element of who pays the employee shrinks into comparative insignificance in lent-employee problems, because the net resuft is almost invariably that the special employer ultimately pays for the services received and the employee ultimately gets paid. But whether the special employer pays the general employer who in turn pays the employee, . . ., or whether the special employer pays the employee direct, the difference for present purposes is one of mechanics and not of substance. Of course, if this is not so ■ — ■ that is, if either the general employer or the special employer pays the employee and is not reimbursed the fact of payment is strong evidence that the payor is the employer.

(Emphasis added.)

This is a case of first impression in Arkansas, but in Hill v. King, 663 S.W.2d 435 (Tenn. Ct. App. 1983), the Tennessee Court of Appeals held that a deputy who was killed in a plane crash while transporting a prisoner was not covered by Robertson County’s workers’ compensation when he was paid no salary, could work as little or as much as he chose, and even when scheduled to work, he was not obliged to report for duty. Tennessee’s definition of “employee” is the same as Arkansas’s definition, and the court of appeals held in Hill that in order to be considered an employee for purposes of workers’ compensation law, there must be an express or implied agreement for the alleged employer to remunerate the alleged employee for his services on behalf of the alleged employer. The court of appeals therein also stated:

There is also a sound reason for the requirement that the employment be “for hire.” . . . [I]n a compensation case, the entire philosophy of the legislation assumes that the worker is in a gainful occupation at the time of the injury. The essence of compensation protection is the restoration of a part of the loss of wages which are assumed to have existed. Merely as a practical matter, it would be impossible to calculate compensation benefits for a purely gratuitous worker, since benefits are ordinarily calculated on the basis of earnings. There, then, are the underlying reasons why compensation acts usually insist upon a contract of hire. . . . The word “hire” connotates payment of some kind. By contrast with the common law of master and servant, which recognized the possibility of having a gratuitous servant, the compensation decisions uniformly exclude from the definition of “employee” workers who neither receive nor expect to receive any kind of pay for their services.

663 S.W.2d at 440.

Because Sharp County did not enter into a contract for hire, either express or implied, with Slater, it cannot be said that the first requirement of the three-part test set forth in Daniels, supra, has been met. Likewise, because there was no contract for hire between Slater and Sharp County, Sharp County cannot be held liable under the second theory expressed in Daniels, supra.

In short, because Sharp County should not be liable for Slater’s workers’ compensation benefits, we hold that the Commission’s decision must be reversed and remanded, and an order shall be entered holding the District solely liable for Slater’s workers’ compensation benefits.

Reversed and remanded; Arkansas Court of Appeals affirmed.

Imber, J., not participating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Teresa BALLARD, Kenisha Bryant, Cheryl King, and Crystal Luebbers v. Phyllis GARRETT, and Advance America Cash Advance Centers of Arkansas
    01-1218
    75 S.W.3d 688
    Supreme Court of Arkansas
    Opinion delivered May 21, 2002

      The Nixon Law Firm, by: David G. Nixon and Paige E. Young; and Logan Thompson Miller Bilbo Thompson Fisher, PC, by: Richard A. Fisher and jimmy W. Bilbo, for appellants.

      Morgan & Turner, by: Phyllis Garrett, for appellee Phyllis Garrett.

      Bowman and Brooke, LLP, by: Robert M. Buell and Charles K. Seyfarth; and Wright, Lindsey & Jennings, by: Claire Shows Hancock, for appellee Advance America.
   PER CURIAM.

This appeal stems from a class action usury suit filed by appellee Phyllis Garrett against appellee Advance America Cash Advance Centers of Arkansas, Inc., on October 12, 1999.

On July 6, 2001, appellants, Teresa Ballard, Kenisha Bryant, Cheryl King, and Crystal Luebbers, who were also members of the class, filed a motion seeking to intervene in the action. On July 16, 2001, a hearing was held on appellants’ motion. On July 18, 2001, the trial court, finding that appellants’ motion to intervene was untimely and that appellants’ interest were adequately represented, denied the motion to intervene.

It is from the trial court’s denial of their motion to intervene, that appellants appeal. We took this case under submission on May 16, 2002. Upon reviewing the materials included in appellants’ abstract and addendum, it is apparent that appellants’ filing was deficient in that several relevant pleadings and documents that are essential to an understanding of the issues were not contained in appellants’ abstract or addendum. We are deferring action on this appeal until appellants fully comply with the provisions of Supreme Court Rule 4-2. '

Supreme Court Rule 4-2(8) (b)(3) explains the procedure that we now follow when an appellant has failed to supply this court with a sufficient brief. The rule provides:

Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or addendum, the court may address the question at any time. If the court finds the abstract or addendum to be deficient such that the court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (7). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, addendum, and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the rule.

Id.

Appellants have failed to comply with Supreme Court Rule 4-2. The rule in relevant part provides:

Following the signature and certificate of service, the appellant’s brief shall contain an addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the court’s jurisdiction on appeal. In the case of lengthy, pleadings or documents, only relevant excerpts in context need to be included in the addendum. Depending upon the issues on appeal, the addendum may include such materials as the following: a contract, will, lease, or any other document; proffers of evidence; jury instructions or proffered jury instructions; the court’s findings and conclusions of law; orders; administrative law judge’s opinion; discovery documents; requests for admissions; and relevant pleadings or documents essential to an understanding of the court’s jurisdiction on appeal such as the notice of appeal. The addendum shall include an index of its contents and shall also be clear where any item appearing in the addendum can be found in the record. The appellee may prepare a supplemental addendum if material on which the appellee relies is not in the appellant’s addendum. Pursuant to subsection (c) below, the clerk will refuse to accept an appellant’s brief if its addendum does not contain the required order, judgment, decree, ruling, letter opinion, or administrative law judge’s opinion. The appellee’s brief shall only contain an addendum to include an item which the appellant’s addendum fails to include.

Id. (emphasis added).

In the case now before us, appellants’ addendum contains only the trial court’s order denying appellants’ request for intervention. The following information, which is essential to an understanding of the case, is missing: (1) appellants’ motion to intervene; (2) appellants’ brief in support of motion to intervene; (3) appellees’ responses to appellants’ motion to intervene; (4) appellees’ brief in support of objection to motion to intervene; and (5) appellants’ notice of appeal and designation of the record.

Appellee Phyllis Garrett noted in her brief that appellants failed to include a copy of their motion to intervene. However, appellee Garrett did not provide us with a supplemental addendum. The other information which is missing from appellants’ addendum was not mentioned by either appellee.

Review of appellants’ motion to intervene and appellees’ responses to the motion to intervene is essential to our consideration of this appeal. Specifically, a review of these documents is needed for us to understand the arguments that were raised below and the arguments that the trial court considered when it denied appellants’ motion. Moreover, we note that a review of the notice of appeal filed by appellants is critical in determining whether we have jurisdiction over this matter. Because appellants have failed to comply with Rule 4-2, we are ordering appellants to submit a revised or supplemental abstract and addendum that contains all relevant pleadings and documents that are essential to an understanding of the issues raised in this appeal. Appellants must file a complying abstract, addendum, and brief within fifteen days from the entry of this order. Thereafter, appellees will have five days to respond.

Glaze, J., not participating.

       We note that we have considered appeals involving these parties on several occasions. See Luebbers v. Advance America Cash Advance, 348 Ark. 567, 74 S.W.3d 608 (2002), Ballard v. Clark County Circuit Court, 347 Ark. 291, 61 S.W.3d 178, Ballard v. Clark County Circuit Court, 347 Ark. 286, 61 S.W.3d 175 (2001), Advance America Cash Advance Centers Of Arkansas, Inc. v. Garrett, 344 Ark. 75, 40 S.W.3d 239 (2001).


text:
    Gary T. CLOIRD v. STATE of Arkansas
    CR 93-284
    76 S.W.3d 813
    Supreme Court of Arkansas
    Opinion delivered May 23, 2002

      Appellant, Pro Se.
    No response.
   PER CURIAM.

In 1992, Gary Cloird, who is also known as Simba Kali, was found guilty of rape and theft of property. An aggregate sentence of thirty-five years’ imprisonment and a fine of $1,000 were imposed. We affirmed. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993). Cloird now asks this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. He further seeks issuance by this court of a writ of habeas corpus and appointment of counsel. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001). Because the coram nobis and habeas portions of the petition present separate issues and require a different disposition, for the sake of clarity we will treat the two aspects of the petition separately.

I. Petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis

A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State, 341 Ark.397, 17 S.W.3d 87 (2000). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Pitts, supra, citing Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid.

As grounds for the writ of error coram nobis, petitioner contends that the State withheld results of a DNA comparison which would have exonerated him of the rape charge. The Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Id. In Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, (1999) the Court revisited Brady and explained its implications. It noted that since the decision in Brady, the court had held that the duty to disclose such evidence is applicable even though there has been no request by the accused, and that the duty encompasses impeachment evidence as well as exculpatory evidence. Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Moreover, the rule encompasses evidence “known only to police investigators and not the prosecutor.” Therefore, to comply with Brady, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf. ...” Stickler, supra; Larimore, supra. In Stickler, the court set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

In the instant case, petitioner has appended to the petition a laboratory report on forensic testing by the Federal Bureau of Investigation (FBI) dated July 23, 1992. (Petitioner’s trial was held August 24, 1992.) The report, which is addressed to a serologist with the Arkansas State Crime Laboratory, reflects that the FBI lab received the following items for testing: vaginal swabs obtained from the victim, a cutting from the victim’s jeans, and a cutting from the victim’s underwear. It also received samples of the blood of five men, including petitioner, who had been identified by the authorities as the persons who sexually assaulted the victim. According to the report, DNA comparisons indicated that petitioner was excluded from having contributed to the samples taken from the victim. Petitioner contends that he was unable to present the evidence earlier because heretofore he had been unable to obtain a copy of the DNA test results.

While it is possible to commit rape without leaving evidence on which DNA comparisons can be conducted, there can be little doubt that the defense could have used the information in the FBI report to bolster its argument, which was made to the jury at trial, that there was no scientific evidence to support the charge of rape as it applied to petitioner.

We find that petitioner Cloird has stated a possible Brady violation which warrants our reinvesting jurisdiction in trial court so that Cloird may file a petition for writ of error coram nobis limited to the issue of whether the DNA test results were available to the State before trial, whether the DNA evidence, if available to the State before trial, was indeed favorable to the defense, and whether prejudice ensued to the defense as a result of the State’s failure to disclose the DNA test results. Also, if the DNA test results were withheld from the defense, the trial court must decide whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Finally, coram nobis proceedings require the petitioner to show that he proceeded with due diligence in making application for relief. See Penn, supra, citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). Accordingly, the trial court should consider whether petitioner raised the possible Brady violation in a timely manner.

Petitioner is responsible for fifing his petition for writ of error coram nobis, limited to the Brady issue, in the trial court within thirty days of the date of this opinion. It shall be within the trial court’s discretion to appoint counsel for the hearing, and for any subsequent appeal to this court that petitioner may elect to pursue in the event of a ruling adverse to him. If petitioner prevails and a writ of error coram nobis is issued, he is entitled to a new trial. See Larimore v. State, 327 Ark. 21, 938 S.W.2d 818 (1997).

With respect to all other grounds raised in the petition, relief is denied. Petitioner has filed several motions pertaining to the coram nobis action filed here. As jurisdiction is being returned to the trial court to consider the one possible meritorious point, we find the motions to be moot.

II. Petition for writ of habeas corpus

We find one claim, which will be explained later, that petitioner has raised as a ground for issuance of a writ of habeas corpus that requires an evidentiary hearing in the trial court so that findings of fact can be made, i.e. the claim that he was tried for the offense of rape in a court without jurisdiction in that the rape did not occur within that court’s jurisdiction. A petition for writ of habeas corpus is the proper means to raise the issue of whether a court had jurisdiction to try a defendant for a criminal offense. Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993). Habeas corpus is a vital privilege that is protected by the Arkansas Constitution. Ark. Const. Art 2, § 11. A writ of habeas corpus will be granted forthwith upon a showing by affidavit or other evidence that there is probable cause to believe a person is being detained without lawful authority. Ark. Code Ann. § 16-112-103(a) (1987). This court has made it clear that a writ of habeas corpus will issue when a commitment is invalid on its face or when the sentencing court lacked jurisdiction to enter or modify the sentence. Arkansas Dept. of Correction v. Stapleton, 345 Ark. 500, 51 S.W.3d 862 (2001), citing Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999); Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997).

While a writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial, the writ is appropriate when a person is detained without lawful authority. See Kozal v. Board of Correction, 310 Ark. 648, 840 S.W.2d 164 (1992). This includes the unlawful confinement of an individual under a sentence longer than that permitted by statute, which constitutes a denial of liberty without due process of law. Renshaw, supra., Meny v. Norris, 340 Ark. 418, 13 S.W.3d 143 (2000).

Likewise, the allegation of that an offense occurred outside the territorial jurisdiction of the court is a cognizable in a habeas proceeding. See Waddle, supra. The law in this State is that a criminal trial must be held in the county in which the crime was committed unless the accused requests a change of venue to another county which, in any case, must be a part of the judicial district served by the court. Kemp v. State, 324 Ark. 178, 99 S.W.2d 943 (1996), Waddle, supra.

The State argues that the fact that petitioner earlier filed a petition for writ of habeas corpus in the circuit court in the county in which he was incarcerated that raised the same jurisdictional issue raised in this petition and that the petition was denied by that court renders the issue res judicata in that the earlier ruling is the law of the case. The allegation that the trial court lacked jurisdiction, however, is a claim sufficient to void a judgment absolutely. Clines v. State, 282 Ark. 541, 669 S.W.2d 883 (1984). We have held repeatedly that jurisdictional issues are always open. Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983). As such, habeas corpus will lie to collaterally impeach a judgment at any time. The fact that a court has ruled adversely to a claim sufficient to void a judgment does not have the effect of curing the jurisdictional defect and bestowing jurisdiction on a court that lacked it at the time of trial. For this reason, res judicata is inapplicable in a habeas proceeding in a criminal case. Fay v. Noia, 372 U.S. 391, 423 (1963).

To understand petitioner’s claim that the trial court lacked jurisdiction to try him for the offense of rape, it is necessary to recite the factual basis for the charge. Petitioner was tried with two co-defendants, Kurt Morris and Roosevelt Burton. Evidence was adduced at trial that on the evening of January 24, 1992, the theft of a van was reported to the police by a Pine Bluff, Jefferson County, car dealership. Later that same evening, Morris and Burton were at a nightclub which was also located in Pine Bluff where they met a woman whom they invited to accompany them to another nightclub. She assented, and Morris drove a small blue car up to where she and Burton were waiting. The woman got into the backseat of the car, and Burton surprised her by also gettihg into the backseat. Alarmed, she attempted to leave the car by the opposite door but was prevented from doing so by Burton’s grabbing her hair and pushing her down in the seat. She tried to escape several more times without success. Morris drove to an isolated spot where both men raped her. The victim testified that only she, Burton, and Morris were in the car, although on cross-examination she said that she also saw a van behind the small blue car. She was then driven to a trailer in Humphrey, which is located in both Jefferson and Arkansas counties, where the sexual assault continued. At some point petitioner Cloird entered the trailer and raped the victim, according to her testimony, “several times.” After some hours, the victim was driven in the small blue car back to Pine Bluff and released.

Petitioner was charged with theft of the van from the car dealership in Pine Bluff, kidnapping of the victim in Pine Bluff, and rape of the victim. He was acquitted of kidnapping. As the basis for a writ of habeas corpus, petitioner contends that the trailer in which the victim was raped was in that part of Humphrey which is in Arkansas County; and, as a result, Jefferson County lacked jurisdiction to try him for the offense.

Effective January 1, 1983, pursuant to Act 609 of the 1981 Acts of Arkansas, now codified as Ark. Code Ann. §16-13-1901, the Eleventh judicial circuit, that had encompassed Jefferson, Lincoln, and Arkansas counties, was divided into the Eleventh judicial circuit — west and the Eleventh judicial circuit — east. Jefferson and Lincoln counties were assigned to the western judicial circuit while Arkansas County was assigned to the eastern judicial circuit. Thus, we take judicial notice that Jefferson and Arkansas counties were not in the same judicial district in 1992 when petitioner was charged and convicted of the offense of rape.

Petitioner suggests that because he was not convicted of committing the kidnapping that occurred in Jefferson County at the nightclub, it could not be said that Jefferson County acquired jurisdiction to try him for a rape that occurred across the county line in Arkansas County. The argument is an important one inasmuch as Arkansas Code Annotated § 16-88-108(c) (1989) provides that where “an offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to the consummation of the'offense occur in two or more counties, the jurisdiction is in either county.”

Here, the petitioner has alleged that the trial court lacked jurisdiction; therefore, he has stated a ground on which a writ of habeas corpus could issue. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). Appended to the petition in the case at bar is a map of Humphrey purporting to show where the boundary between Jefferson and Arkansas counties lies and where the trailer in which the victim was rape is located. According to that map, the trailer is in Arkansas County. The question of where the crime occurred requires Findings of Fact; therefore, as stated earlier, we remand the question to the trial court for an evidentiaryhearing and direct that the court hold the hearing within 120 days and return its Findings of Fact and Conclusions of Law to this court with a transcript of the hearing. Upon receipt of the court’s findings, a final disposition of the petition for writ of habeas corpus will be rendered by this court.

Petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis granted in part and denied in part; Petition for writ of habeas corpus remanded to trial court for evidentiary hearing on jurisdictional question.

       Petitioner is also incarcerated within the jurisdiction of the trial court.

       In civil matters, the doctrine of res judicata may apply in habeas proceedings. Fulks v. Walker, 224 Ark. 639, 275 S.W.2d 873 (1955).

       If the trial court desires, it may combine the hearing held on remand to consider petitioner’s ground for issuance of a writ of habeas corpus with his claim of a Brady violation contained in a timely petition for writ of error coram nobis. The trial court must, however, issue an order on the coram nobis issue separate from its Findings of Fact and Conclusions of Law on the habeas issue so that the order pertaimng to the coram nobis petition can be appealed if the non-prevailing party elects to appeal.


text:
    Robert Wayne GRADY v. STATE of Arkansas
    CR 01-1061
    75 S.W.3d 707
    Supreme Court of Arkansas
    Opinion delivered May 23, 2002

      Scott Adams, for appellant.
    No response.
   PER CURIAM.

Attorney Scott Adams, counsel for appel- lant Robert Grady, appeared before this court on May 16, 2002, to show cause why he should not be held in contempt for fading to file his client’s brief on' or before April 11, 2002, a final extension date, as previously ordered.

During the hearing conducted on May 16, 2002, we accepted Mr. Adams’s guilty plea for failing to file his client’s brief prior to the final extension date. Mr. Adams has taken responsibdity for his fadure to file the brief, and has submitted statements in mitigation of his actions when making his plea.

Based upon the foregoing, we accept Mr. Adams’s guilty plea for failing to file his client’s brief in a timely manner, and we fine him $250.00. We also note that Mr. Adams made a commitment to this court to have his client’s brief filed with the clerk of this court within seven days from the entry of this opinion. Any failure to fulfdl this obligation will result in further proceedings. A copy of this opinion wid be forwarded to the Committee on Professional Conduct.


author: TOM GLAZE, Justice. DONALD L. CORBIN, Justice,

text:
    Alton Stephen BALDWIN v. Helen Carr BALDWIN
    01-1258
    76 S.W.3d 267
    Supreme Court of Arkansas
    Opinion delivered May 30, 2002
    [Petition for rehearing denied July 5, 2002.]

      Friday, Eldredge & Clark, by: Barry E. Coplin, for appellant.

      Janice W. Vaughn, for appellee.

       Imber J., not participating.

   TOM GLAZE, Justice.

Helen and Stephen Baldwin were married in 1973, and separated on July 6, 1998. During the years of their marriage, the Baldwins, as well as Stephen and his parents, engaged in a number of business developments, including a strip mall in Hot Springs. Throughout the years, the Baldwins’ businesses and properties were transferred back and forth, partnerships were created, and marital assets were used for several of the purchases. After their separation in 1998, and after a four-day trial of the divorce, the trial court entered a divorce decree on July 7, 2000. Stephen appealed, claiming the chancellor erred in the valuation of the marital property. The record submitted to the court of appeals contained twelve volumes, five of which were exhibits; the transcript consisted of 2,679 pages and one envelope of additional exhibits. However, Stephen’s abstract of the pleadings was only twenty-nine pages long, and his abstract of the voluminous documentary exhibits, including the warranty deeds and mortgages to the property and the partnership agreements, was seven and a half pages.

On appeal to the court of appeals, Helen argued that Stephen’s abstract was so flagrantly deficient that the court of appeals could not decide the merits of the case. The court of appeals agreed, writing in an unpublished opinion as follows:

Given the complete absence of documentary evidence in the appellant’s abstract, and the sketchy manner in which appellant has abstracted the testimony at trial, we hold that the abstract is flagrantly deficient. Pursuant to Ark. R. Sup. Ct. 4-2(b)(3), we allow appellant’s attorney thirty days from the date of this opinion to review the brief, at his own expense, to conform to Rule 4-2 (a) (6). Upon the filing of such a substituted brief by the appellant, appellee will be afforded an opportunity to supplement the brief at the expense of appellant’s counsel.

Helen petitioned this court for review, arguing that the court of appeals should have simply affirmed the case in light of the flagrantly deficient abstract, because the record in this appeal was lodged with the clerk’s office some seven months before this court adopted its new abstracting rules.

Prior to September 1, 2001, this court’s rules regarding insufficient abstracting provided that motions to dismiss an appeal for insufficiency of an appellant’s abstract would not be recognized. Ark. Sup. Ct. R. 4-2(b) (2000). Further, the rule stated that the court could treat the question of deficiencies in the appellant’s abstract when the case was submitted on appeal. Rule 4-2(b)(3) continued as follows:

If the court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the court considers that action to be unduly harsh, the appellant’s attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6). Mere modification of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. (Emphasis added.)

Plowever, the court amended this rule by per curiam effective September 1, 2001. The new rule addressed “the need for appeals to be decided on the merits. We . . . have addressed this concern in amending Rule 4-2(b)(3). Appeals will no longer be affirmed because of the insufficiency of the abstract without the appellant first having any opportunity to cure the deficiencies.” In re: Modification of the Abstracting System Amendments to Supreme Court Rules 2-3, 4-2, 4-3, and 4-4, 345 Ark. Appx. 626 (2001) (per curiam). The so-called “affirmance rule” was essentially eliminated by the amended rule, “except in the rarest circumstance where the appellant refuses or fails to comply after given the opportunity to cure a deficient abstract, addendum, and brief.” Id. The new version of Rule 4-2(b)(3) now reads as foEows:

Whether or not the appeüee has cafied attention to deficiencies in the appellant’s abstract or Addendum, the court may address the question at any time. If the court finds the abstract or Addendum to be deficient such that the court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the court wiE notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (7). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum, and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

Ark. Sup. Ct. R. 4-2(b)(3) (2002) (amended May 31, 2001, effective for cases in which the record is lodged in the Supreme Court or Court of Appeals on or after September 1, 2001).

In the majority of cases calling our abstracting rules into question, this court has affirmed a judgment on the basis of a flagrantly deficient abstract. See, e.g., Stuart v. Water Well Constr. Comm’n, 343 Ark. 369, 37 S.W.3d 573 (2001); Johnson v. State, 333 Ark. 1, 968 S.W.2d 51 (1998); City of West Memphis v. City of Marion, 332 Ark. 421, 965 S.W.2d 776 (1998); Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997); Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996); Carmical v. City of Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994) (1,419 page record was abstracted in four and a half pages); Sturch v. Sturch, 316 Ark. 53, 870 S.W.2d 720 (1994); Davis v. Peebles, 313 Ark. 654, 857 S.W.2d 825 (1993); Samples v. Samples, 306 Ark. 184, 810 S.W.2d 951 (1991).

In other instances, this court and the court of appeals have reached the merits of an appeal, despite some problems with the abstract, either because the abstract was not flagrantly deficient, or because the appellee provided a supplemental abstract. See Arkansas Dep’t of Human Servs. v. Southerland, 65 Ark. App. 97, 985 S.W.2d 336 (1999) (not flagrantly deficient); Williams v. Martin, 335 Ark. 163, 980 S.W.2d 248 (1998) (abstract “somewhat lacking,” but not flagrantly deficient); King v. State, 312 Ark. 89, 847 S.W.2d 37 (1993) (cured by supplemental abstract; was also a capital murder case, which “necessitated review”); Helm v. Mid- America Indus., Inc., 301 Ark. 521, 785 S.W.2d 209 (1990) (cured by supplemental abstract).

Rarely has the appellate court remanded for reabstracting because affirming would be unduly harsh. See Dansby v. State, 347 Ark. 509, 65 S.W.3d 448 (2002) (rebriefing ordered under Ark. R. Crim. P. 37.5 because of heightened standard in death-penalty cases); Ward v. State, 347 Ark. 515, 64 S.W.3d 755 (2002) (same); Brinker v. Forrest City School Dist. No. 7, 342 Ark. 646, 29 S.W.3d 740 (2000) (affirming would be unduly harsh; abstract was only missing insurance policy, and no challenge had been made to the language of the policy; remanded for reabstracting); Johnson v. State, 17 Ark. App. 125, 704 S.W.2d 647 (1986) (affirming would be unduly harsh in light of sentence).

In sum, the vast majority of cases prior to the 2001 amendment of Rule 4-2(b)(3) called for summarily affirming a case when the abstract was so flagrantly deficient that the court did not have before it all the parts of the record necessary for an understanding of the issues presented. Many times, the court cited our long-standing “efficiency” rule i.e., it is impractical to require all seven justices to examine one transcript in order to decide an issue. See, e.g., Hashagen v. Lord, 341 Ark. 83, 14 S.W.3d 498 (2000); Luttrell v. City of Conway, 339 Ark. 408, 5 S.W.3d 464 (1999); Mayo v. State, 324 Ark. 328, 920 S.W.2d 843 (1996). Only infrequently has the court remanded for reabstracting or rebriefing.

In the present case, the court of appeals, in applying the rule in effect prior to September 1, 2001, did not affirm this appeal, although it appears clear that to do so would not have been unduly harsh; the omissions from the abstract were significant when the nearly 2700-page transcript was reduced to twenty-nine pages. However, whether the court of appeals erred in remanding this matter for reabstracting is moot. After our court granted Helen Baldwin’s petition to review the court of appeals’s order directing Stephen Baldwin to reabstract to cure his deficient brief, Helen moved to strike Stephen’s substituted abstract and brief for failing to cure the deficiencies. The court of appeals did not have the opportunity to rule on Stephen’s failed attempt to correct his abstract and brief. Since our review reflects Stephen Baldwin’s supplemental abstract remains deficient, we affirm for this reason.

Especially telling are the documents Stephen offered in his supplemental abstract in an effort to cure his initial abstracting deficiencies. Stephen abstracted warranty deeds, Baldwin Enterprises’ partnership tax returns, bank statements for Baldwin Enterprises, Baldwin’s personal bank statements, and appraisal reports. All of these documents touched on the question of property ownership and values. Clearly, these exhibits were necessary for an understanding of the issues Stephen raises in this court, and these exhibits should have been included in the abstract of the record in the first instance.

However, notwithstanding the importance of these documents in resolving the parties’ ownership interests and valuation issues, Stephen Baldwin’s supplemental abstract still gives only a sketchy rendition of these items, and his abstract remains flagrantly deficient. For example, his supplement to the abstract of the testimony offered during the four-day trial adds only two sentences of testimony. Further, one appraisal report establishing the value of Baldwin’s dental practice comprised some sixty-eight pages in the record, but Baldwin abstracted it in less than half a page. Additionally, another appraisal of Baldwin Enterprises’ strip mall spanned eighty-five pages in the transcript, but was abstracted in less than a page. We also note that Baldwin has compounded the problem by failing to make references to the abstract in his brief, nor did he even refer to the pages in the transcript. In order to verify the assertions in his brief, we would have to comb through a record consisting of thousands of pages. This we will not do, especially given our frequent comment, noted above, that there are seven justices and only one record. It is simply impractical for the members of the court to pass around one transcript, and we will not attempt to do so. See Burns v. Carroll, 318 Ark. 302, 885 S.W.2d 16 (1994); Davis v. Peeples, 313 Ark. 654, 857 S.W.2d 825 (1993). Our abstracting rules were clearly intended to alleviate this burden.

Thus, even had this record in this case been lodged after the amendment to Rule 4-2 (b)(3), we would still affirm on the basis of Baldwin’s substituted abstract, submitted in response to the court of appeals’ directions. In Boatmen’s Trust Co. v. Housing Authority, 346 Ark. 142, 57 S.W.3d 132 (2002), we summarily affirmed the lower court’s decision after the appellants submitted a supplemental abstract that failed to cure the deficiencies in the first abstract. We do the same here.

The trial court is affirmed.

Corbin and Hannah, JJ., concur.

Imber, J., not participating.

DONALD L. CORBIN, Justice,

concurring. I agree that the abstract filed by Stephen Baldwin is flagrantly deficient. I also agree that the revised abstract submitted by Stephen is still flagrantly deficient. Accordingly, I join the majority’s conclusion that this appeal should be affirmed pursuant to Ark. Sup. Ct. R. 4-2(b)(3). I write separately to emphasize the fact that the decision by the court of appeals to order Stephen to revise his abstract was a discretionary decision based on the authority provided to appellate courts under the prior version of Rule 4-2(b)(3).

I agree with the majority’s conclusion that, in the past, the discretionary authority afforded by Rule 4-2(b)(3) has been used sparingly, by both this court and the court of appeals. In my opinion, however, this authority is rendered no less discretionary merely because it has been used infrequently. Therefore, I do not view the issue whether the court of appeals erred in ordering the abstract to be revised as being moot; rather, I view it as not being an issue of error at all. For this reason, I must concur.

Hannah, J., joins in this concurrence.

       Helen also asks the court to declare unconstitutional all laws prohibiting the precedential value and citing of unpublished opinions. She asked for this relief, apparently because she relied on two unpublished opinions in her petition for review. However, there are numerous published cases holding that flagrantly deficient abstracts can result in summary affirmance, and we therefore see no reason to reach this argument.


author: TOM GLAZE, Justice.

text:
    Gyronne BUCKLEY v. STATE of Arkansas
    CR 01-644
    76 S.W.3d 825
    Supreme Court of Arkansas
    Opinion delivered May 30, 2002
    [Petition for rehearing denied July 11, 2002.]

      Hampton & Larkowski, by: Mark F. Hampton and J. Thomas Sullivan, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.

       Arnold, C.J., not participating.

   TOM GLAZE, Justice.

Gyronne Buckley was convicted in 1999 of two counts of delivery of a controlled substance and was sentenced to two life sentences. He appealed his convictions to this court, and we reversed and remanded for resentencing. See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000). Prior to the resentencing trial, Buckley filed a motion with the trial court in which he attempted to waive a jury for sentencing. He asked the trial court to give him the minimum sentence available under the sentencing grid, and he claimed that he would be prejudiced because the same jury that found him guilty would not hear the testimony offered in the resentencing trial. Particularly, Buckley noted that the testimony and credibility of Keith Ray, a Drug Task Force officer on whose testimony the State had relied heavily at the first trial, had been discredited in an unrelated federal habeas corpus proceeding. The State refused to agree to waive jury sentencing, and the trial court denied the motion on the ground that the State has a right to a jury trial. The court also ruled that either party could call Ray as a witness.

The sentencing trial then began, and at the conclusion of the trial, the jury sentenced Buckley to twenty-eight years on each conviction. The trial court ordered that the sentences run consecutively. On appeal, Buckley argues that the trial court erred in finding that the State had a right to a jury trial on resentencing and in denying his motion to waive resentencing by a new jury. He also raises eight points that he concedes were not preserved for review by a contemporaneous objection, but asserts that this court should consider them anyway under a plain-error review.

The first question presented in this appeal requires this court to conduct an analysis of the Arkansas bifurcated-sentencing statute, Ark. Code Ann. § 16-97-101 et seq. (Supp. 2001). This court reviews questions of statutory interpretation de novo because it is our responsibility to determine what a statute means. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001); Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999)).

Since 1993, Arkansas law has provided for a bifurcated-sentencing procedure, with guilt and sentence being determined by a jury at separate phases. Arkansas Code Annotated § 16-97-101 (Supp. 2001) governs this procedure, and the statute provides, in relevant part, as follows:

The following procedure shall govern jury trials which include any felony charges:
(1) The jury shall first hear all evidence relevant to every charge on which a defendant is being tried and shall retire to reach a verdict on each charge.
(2) If the defendant is found guilty of one (1) or more charges, the jury shall then hear additional evidence relevant to sentencing on those charges. Evidence introduced in the guilt phase may be considered, but need not be reintroduced at the sentencing phase.
(3) Following the introduction of additional evidence relevant to sentencing, if any, instruction on the law, and argument, the jury shall again retire and determine a sentence within the statutory range.
(5) After a jury finds guilt, the defendant, with the agreement of the prosecution and the consent of the court, may waive jury sentencing, in which case the court shall impose sentence.

(Emphasis added.) Further, Ark. Code Ann. § 5-4-103 (a) (Repl. 1997) provides that “[i]f a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding as authorized by this chapter.” (Emphasis added.)

This court has recognized that under the bifurcation structure, a criminal trial is split into separate and distinct stages, the first of which involves the finding of guilt or innocence. Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). In the event of a finding of guilt, further proceedings are held in which evidence may be presented prior to the setting of sentence. Hill v. State, supra. Specifically, the court in Hill wrote that “the legislature has provided . . . for separate and distinct procedures governing jury trials and sentencing by jury,” and that “sentencing is now, in essence, a trial in and of itself, in which new evidence may be submitted.” Hill, 318 Ark. at 413 (emphasis added).

In this appeal, Buckley raises several arguments to support his claim that there was no authority for him to be resentenced by a jury. First, he contends that Arkansas case law holds that resentencing before a jury that does not consider an accused’s guilt is inappropriate because of the potential for prejudice in the sentencing decision, due to the jurors’ inability to consider the credibility of all evidence leading to conviction on the underlying charge. In support of this assertion, he cites Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991), where the Eighth Circuit Court of Appeals pointed out in a footnote that “[u]nder Arkansas law, it appears that a new jury generally cannot be empaneled solely on the issue of sentencing.” Jones, 929 F.2d at 381, n.17 (citing Mathis v. State, 267 Ark. 904, 591 S.W.2d 679 (Ark. App. 1980) (overruled on other grounds by Rogers v. State, 10 Ark. App. 19, 660 S.W.2d 949 (1983)).

However, Jones was decided prior to the enactment of the bifurcated sentencing statute, § 16-97-101. Sentencing in Arkansas is, of course, entirely a matter o'f statute. See, e.g., Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001); State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993). Therefore, because the sentencing statute has changed since the cases Buckley relies on were rendered, the holdings of those cases do not help him.

Second, Buckley asserts that, although the General Assembly explicitly authorized resentencing by a newly empaneled jury in capital cases, see Ark. Code Ann. § 5-4-616 (Repl. 1997), there is no such explicit authorization for new juries in noncapital cases. In addition, he contends that § 5-4-103 does not'contemplate jury sentencing upon a guilty plea. Because there is no language authorizing remand for resentencing before a new jury not hearing the guilt issue in noncapital cases, he argues, it was error for the trial court to empanel a new jury to hear his sentencing case.

However, this argument ignores the fact that § 16-97-101(6) clearly contemplates jury sentencing after a plea of guilty. In such a situation, the jury empaneled for the purpose of sentencing would not have heard the evidence relating to the guilt issue in the first instance either, but it is still permitted to decide sentencing. Thus, by analogy, if a jury can decide a sentence after a defendant has pled guilty, but that jury has heard no evidence other than the fact that the defendant had already been convicted, then a jury should be permitted to decide a sentence in a case where a defendant’s conviction has been affirmed, but only the sentence reversed. The question of guilt, as in a guilty plea, has already been decided; it remains only for the jury to determine a just sentence.

Further, as there is no hindrance to the impaneling of a jury to determine a sentence on remand, then there is no infirmity in the State’s refusal to assent to a defendant’s attempted waiver of a jury. In State v. Vasquez-Aerreola, 327 Ark. 617, 940 S.W.2d 451 (1997), this court held that, under Ark. R. Crim. P. 31.1, criminal cases that require a trial by jury must be so tried unless: (1) waived by the defendant; (2) assented to by the prosecutor; and (3) approved by the court. Given the language of this rule, a trial court has no authority to accept a defendant’s guilty plea unless the State assents to it. See also State v. Singleton, 340 Ark. 710, 13 S.W.3d 584 (2000); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) (expressly declining to follow jurisdictions that afford criminal defendants an absolute right to waive a jury trial).

Indeed, § 16-97-101(5) states that “[a]fter a jury finds guilt, the defendant, with the agreement of the prosecution and the consent of the court, may waive jury sentencing, in which case the court shall impose sentence.” (Emphasis added.) Thus, it is clear that in sentencing, as in trial, a defendant can waive a jury only with the agreement of the State. Here, because the State declined to consent to Buckley’s request to waive a jury for his resentencing, the trial court did not err in submitting the matter to a jury.

These arguments aside, Buckley’s convictions should be affirmed because he has not demonstrated how he was prejudiced by having a different jury sentence him. Although he claims that he was prejudiced because the sentencing jury was not afforded an opportunity to evaluate the credibility of Keith Ray, who testified at Buckley’s first trial, Buckley did not call Ray to impeach Ray’s testimony at Buckley’s sentencing hearing, despite the fact that the trial court specifically noted that both sides would be permitted to call Ray as a witness. If any prejudice arises from this situation, it is of Buckley’s own making.

Additionally, Buckley cannot demonstrate that he was prejudiced by being resentenced by a new jury, because he received a sentence within the statutory range, and one that was significantly less than his original sentence. Delivery of a controlled substance is a Class Y felony, see Ark. Code Ann. § 5-64-401 (a)(1)(i) (Repl. 1997), which carries a sentencing range of ten-to-forty years or life. Ark. Code Ann. § 5-4-401 (a)(1) (Repl. 1997). A defendant who has received a sentence within the statutory range short of the maximum sentence cannot show prejudice from the sentence itself. See Young v. State, 287 Ark. 361, 699 S.W.2d 398 (1985).

Next, Buckley raises eight assignments of error, although he concedes that he did not raise a contemporaneous objection to these matters at trial, and he acknowledges that Arkansas has traditionally refused to recognize claims of error not preserved at trial. Nevertheless, he argues that this court should permit and conduct “plain error” review, claiming that this court has at least “evidenced a willingness to recognize claims of fundamental error.” Citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), he claims that the court has “expressly recognized four distinct classes of error which potentially warrant appellate review in the absence of preservation in the trial court,” and he asserts that the third and fourth Wicks exceptions “suggest a limited basis for recognition of. fundamental and plain error in this appeal.”

In Wicks, this court noted that some jurisdictions, particularly the federal courts, conduct plain-error review, but held that in Arkansas, an argument for reversal will not be considered in the absence of an appropriate objection. However, the Wicks court recognized four exceptions to the basic requirement of an objection in the trial court, noting that they were “so rare that they may be reviewed quickly.” Wicks, 270 Ark. at 785. Two of the exceptions occur in death-penalty cases. The court stated that an objection would not be required when the trial court failed to bring to the jury’s attention a matter essential to its consideration of the death penalty itself; a second exception arises when the error is made by the trial judge himself at a time when defense counsel has no knowledge of the error and hence no opportunity to object. Id. at 785-86.

Wicks stressed-that the third exception “is a mere possibility, for it has not yet occurred in any case. That relates to the trial court’s duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial.” Id. at 786. However, with respect to this third exception, the court cautioned that an appellant “can not predicate error upon the failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same.” Id.

Finally, the Wicks court noted a fourth possible exception that “might arguably be asserted on the basis of [then] Uniform Evidence Rule 103(d).” Id. at 787. That rule, which is now Ark. R. Evid. 103(d), provides that “[n]othing in this rule precludes taking notice of errors affecting substantial rights, although they were not brought to the attention of the court.” Again, however, the court warned about relying on this exception, stating as follows: That statement, however, is negative, not imposing an affirmative duty, and at most applies only to a ruling which admits or excludes evidence. If there is any other exception to our general rule that an objection must be made in the trial court, we have not found it in our review of our case law.

Id.

Buckley asserts that his arguments on appeal fall into the latter two categories of Wicks exceptions, and argues that this court should acknowledge the policy reasons behind adopting a plain-error standard. Particularly, he claims that application of plain error promotes the interest of fair trials and due process, and he contends that the refusal to consider unpreserved claims generates further litigation. However, for many years, Arkansas has allowed collateral attacks upon a final conviction and appeal by means of a postconviction challenge to determine whether a sentence was void because it violated fundamental rights guaranteed by the Constitutions or laws of Arkansas or the United States. The present rule for such a challenge is Ark. R. Crim. P. 37. See Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).

Turning to Buckley’s eight “plain error” points, the first three of his claims appear to involve ’ the fourth of the Wicks exceptions; that is, he asserts they are “errors affecting his substantial rights.” First, Buckley claims that his sentence violates the Eighth and Fourteenth Amendments and Arkansas law because the jury was not instructed on the burden of proof imposed upon the State for proof of prior offenses to be considered by the jury in assessing punishment. Here, Buckley argues that the State adduced testimony concerning other drug offenses he allegedly committed; he submits that Arkansas law requires those prior offenses used for sentencing purposes must be established by a preponderance of the evidence. See Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999). Because the trial court did not give an instruction to the jury limiting its consideration to those matters established by evidence, he claims, his substantial rights were affected.

This issue deals with the trial court’s decision to admit evidence, which is subject to an abuse-of-discretion standard. See Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001); Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997). Evidentiary rulings simply must be raised below before this court will consider them on appeal. Rule 103(d) of the Arkansas Rules of Evidence is, as the Wicks court noted, “negative, not imposing an affirmative duty[.]” Here, we note that Buckley did not ask the court to provide any direction to jurors as to what evidence could be considered in setting punishment. This court has repeatedly held that the failure to give an admonition to the jury is not prejudicial error where the instruction or admonition was not requested below. See, e.g., Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998); Gray v. State, 327 Ark. 113, 937 S.W.2d 639 (1997); Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996). Further, Buckley bases his claim of fundamental error and prejudice on the fact that the jury imposed a sentence in excess of the statutory minimum. However, as noted above, this court has held that when a defendant receives a sentence within the statutory range, he cannot prove that he was prejudiced. See Young v. State, 287 Ark. 361, 699 S.W.2d 398 (1985).

Next, Buckley argues that the record reflects plain error in the introduction of evidence of an unrelated offense that he claims was not relevant to his guilt. He points out testimony by Officer Bethell, who testified about drug transactions that were not charged against Buckley. This testimony, he claims, affected his substantial rights because the evidence of the drug transaction was not relevant to any issue in the resentencing. This court has fiequendy held that relevancy objections must be made in order to preserve an issue. See Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001); Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996) (where appellant failed to make a specific, contemporaneous objection to relevancy of witness’s testimony as to his references to gangs, appellant waived the issue on appeal). Because this court has in the past refused to address relevancy issues without a contemporaneous objection by counsel during trial, they clearly do -not “affect a defendant’s substantial rights” to such a degree as to cause such errors to fall into any of the Wicks exceptions.

Buckley’s next point on appeal also involves a relevancy question. He contends that the prosecutor erred in eliciting irrelevant evidence relating to his business in Arkadelphia, and suggesting that Buckley was in the business of selling drugs. However, as just noted, a defendant must object to irrelevant evidence in order to preserve the issue for appeal.

Next, Buckley claims a series of errors occurred during the prosecutor’s closing argument. He argues that the prosecutor committed the following errors: 1) advancing a “golden rule” argument, inviting jurors to speculate that Buckley had sold drugs to their children or would in the future; 2) arguing outside the trial record in telling jurors that Buckley had been trafficking in drugs for ten years; 3) inviting the jury to speculate on Buckley’s culpability for the actions of Johnny Rucker, who killed a woman, allegedly after going on a drug binge with Buckley’s cousin, Reginald Brim, who bought the drugs from Buckley; and 4) arguing outside the record in asserting that Buckley had coerced witnesses not to testify against him. He claims that these four errors constituted such fundamental error that the trial court had a “duty to intervene, without an objection, and correct [the] serious error either by an admonition to the jury or by ordering a mistrial.” Wicks, 270 Ark. at 786. As was noted above, though, this third Wicks exception “is a mere possibility, for it has not yet occurred in any case.” Id.

The first of these assignments of error relates to a prosecutor’s alleged “golden rule” argument. However, this court has required a contemporaneous objection in order to preserve a “golden rule” issue for appeal. See Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998). As noted above, if the court has previously rejected an attempt to argue an error on appeal when no objection was made, the alleged error cannot be within the Wicks categories.

Next, Buckley claims error because the prosecutor argued outside of the record and claimed that Buckley had been dealing drugs for ten years. He notes that testimony to this effect was offered at the first trial by way of Officer Keith Ray of the Drug Task Force, but Ray was not called to testify at the resentencing. The prosecutor made the statement, Buckley claims, to influence the jury to believe that Buckley was a long-time drug dealer in Arkadelphia, and this misconduct “resulted in fundamental error due to trial counsel’s failure to object.” Clearly, if the error is predicated on counsel’s failure to object, then it is the kind of error that should be addressed in a Rule 37 proceeding, not in a direct appeal where the issue is admittedly not preserved for appeal.

Nevertheless, Buckley claims that the trial court was also at fault in failing to control the prosecutor’s argument. The Wicks exception should apply, he asserts, “where the same or similar error or misconduct has already required relief by reversal or mistrial.” While Officer Ray’s hearsay testimony during Buckley’s first sentencing proceeding did result in a reversal of the sentence, Buckley objected to the testimony in his first trial, giving the trial court the opportunity to correct the error. Here, however, there was no objection to the fact that the prosecutor was arguing outside of the record, which would have given the trial court an opportunity to admonish the jury to disregard the prosecutor’s statements. Further, Buckley was given the option of calling Ray himself and discrediting his testimony; he failed to do so. He cannot now argue that he was fundamentally prejudiced when he could have avoided the problem himself.

Next, Buckley maintains that the prosecutor’s reference, during his closing argument, to the case of Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995), was improper and fundamental error. During Buckley’s case-in-chief, the State elicited testimony on cross-examination from Nelda Swan, a character witness for Buckley, that she “would be surprised” to find out that Buckley had provided drugs to “some person who was on a binge that killed somebody that night.” Buckley did not object at that point, nor did he object when the State raised this issue again during its closing argument.

Buckley cites Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999), as an example of a case in which this court reversed a sentence where the record reflected that the jury based its sentence on a consideration of evidence of other crimes committed by one other than the accused. However, in Walls, the State introduced, as victim-impact evidence, testimony that Walls “controlled Heath [Stocks, a boy whom Walls had raped] as a hit man and ordered him to murder his family.” This court held that such evidence was entirely inappropriate as victim-impact evidence, and reversed Walls’s sentence because it was extremely prejudicial. Walls, however, objected to the State’s use of such evidence and to the court’s consideration of the dismissed offenses. There was no similar objection here. Again, as noted above, this kind of alleged error must be preserved by contemporaneous objection.

In the fourth of his assignments of error related to the State’s closing arguments, Buckley contends that the prosecutor improperly argued outside of the record and asserted that Buckley had coerced witnesses not to testify against him. Again, there was no objection. Even if Buckley had objected, however, the prosecutor’s argument about Buckley’s threatening witnesses was supported by the evidence. Therefore, we decline to find error in this point.

Buckley’s final point on appeal is that the trial court abused its discretion in ordering his sentences to be served consecutively. He concedes that he did not object to the imposition of consecutive sentences, thus waiving the point for appeal, and he acknowledges that the trial court was authorized, under Ark. Code Ann. § 5-4-403 (a) (Repl. 1997), to impose consecutive sentences. A trial court’s decision to impose sentences consecutively is entirely within the court’s discretion, see Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000), and this court has previously required a contemporaneous objection in order to preserve the point for appeal. See Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). Therefore, we do not reach this issue.

In conclusion, there was no error in the trial court’s decision to refuse to accept Buckley’s attempt to waive a jury on resentencing. Further, none of Buckley’s alleged “fundamental errors” amount to errors that would fall within the Wicks exceptions; because he did not object to any of these alleged errors at trial, none is preserved for review on appeal. Buckley’s sentences are therefore affirmed.

Arnold, C.J., not participating.

       (a) Notwithstanding § 5-4-602(3), which requires that the same jury sit in the sentencing phase of a capital murder trial, the following shall apply [in the event of a remand of a capital case after vacation of death sentence]:

        (1) . . . When a capital case is remanded after vacation of a death sentence, the prosecutor may: . . .
      (B) Move the trial court to impanel a new sentencing jury [.]

       As noted above, Buckley’s first trial resulted in two life sentences, ordered to be run consecutively. The present jury sentenced him to twenty-eight years to be served on each conviction; the trial court again ordered that they run consecutively.

       In his reply brief, Buckley raises an argument that Rule 37 proceedings impose a more onerous burden of proof and a less favorable standard of review on a criminal defendant than that which is available on direct appeal. He does not support this argument with any convincing authority, however, and we therefore do not consider it further. See, eg., Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001); Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996).


author: ROBERT L. BROWN, Justice.

text:
    USA CHECK CASHERS OF LITTLE ROCK, INC. v. Carolyn ISLAND and Jeanette Carter, Individually and o/b/o A Class of Similarly Situated Persons
    01-1294
    76 S.W.3d 243
    Supreme Court of Arkansas
    Opinion delivered May 30, 2002

      Eubanks Welch Baker & Schulze, by: J. G. “Gerry” Schulze and Lloyd W. “Tré” Kitchens, for appellant.

      Friday, Eldredge & Clark, LLP, by: R. Christopher Lawson; and Morgan & Turner, by: Todd Turner, for appellees.
   ROBERT L. BROWN, Justice.

This is a class-certification appeal. The circuit court granted the appellees’ motion for class certification, and the appellant, USA Check Cashers of Little Rock, Inc., now contends that the circuit court abused its discretion in certifying this class. We affirm the class certification.

On January 4, 2000, the initial class-action complaint was filed in this matter. On January 30, 2001, a motion for class certification was filed by the proposed class representative. In that motion, the class representative moved for certification of a class of persons who had been charged interest by USA Check Cashers that exceeded the maximum lawful amount set forth in Article 19, § 13, of the Arkansas Constitution. The motion alleged that the class had satisfied the criteria of Arkansas Rule of Civil Procedure 23(a) and (b) for class certification, including numerosity, commonality, typicality, and adequacy of representation. The motion further asserted that class counsel would fairly and competently represent the interests of the class, that common questions of law and fact predominated in the action, and that a class action was the superior method for adjudication of the claims. Attached to the motion were several exhibits including affidavits from USA Check Cashers’ customers, including appellees Carolyn Island and Jeanette Carter, and USA Check Cashers’ responses to interrogatories which revealed that there were approximately 2,680 customers who had received the described cash advances.

On April 27, 2001, appellees Island and Carter, individually and on behalf of a class of similarly situated persons, filed a third amended complaint against USA Check Cashers. In their complaint, Island and Carter described the action as a “class action brought on behalf of persons who have paid usurious rates of interest to USA for loans originating at USA’s branch offices in central Arkansas.” The complaint alleged that USA had offered cash advances to its customers in the form of “payday loans.” It was further alleged that in those transactions, the customers would receive cash in exchange for personal checks drawn on the customer’s bank account which were deferred for collection by USA.

The complaint also stated that the transactions were interest-bearing contracts in violation of the maximum lawful interest rate set forth in the Arkansas Constitution, Article 19, § 13. The complaint described the transactions as follows:

10. The total amount of the customer’s personal check which is exchanged for cash is comprised of (a) the amount of each received by the customer, plus (b) a “charge” and/or “fee” for holding the check, i.e., deferring its presentment. The cash received by the customer constitutes the principal amount of the loan. The charge or fee paid by the customer to defer presentment of the check constitutes interest as that term is used in Artiele 19, § 13 of the Arkansas Constitution. USA agrees not to cash the customer’s check for a specified period of time which constitutes the term of the loan. The term of the loan is tied to the customer’s pay period at work. The customer is instructed to return to USA’s place of business at the end of the loan term, i.e., the customer’s “payday,” to redeem the loan and pick up the check in exchange for cash in the amount of the check. In the alternative, the customer is given the option of renewing the loan at the end of the loan term by paying an additional charge and presenting a new check for (a) the original amount of cash received by the customer, plus (b) an additional charge for the extended term.

In their prayer for relief, Island and Carter sought class-action certification. USA Check Cashers responded to the third amended complaint and denied the class claims as well as the class-action allegations. It further pled numerous affirmative defenses.

On June 4, 2001, Island and Carter filed a Proposed Trial Management Plan in which they proposed that liability be determined in Phase I of the trial; if liability is found, then aggregate monetary relief should be determined in Phase II of the trial; and distribution to individual class members in Phase III of the trial.

On July 31, 2001, the circuit court granted Island’s and Carter’s motion for class certification. In its order, the court found that having heard the arguments of counsel and having reviewed the pleadings and attachments, the proposed class representatives had satisfied each of the four requirements set out in Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. As to numerosity, the court found that since January 4, 1997, approximately 2,680 customers had engaged in transactions with USA Check Cashers. Hence, joinder of all members was impracticable. With respect to commonality, the court determined that there were eleven issues of law and fact common to the class:

A. Did the customer receive cash in exchange for a personal check drawn on the customer’s bank account which was presented to and held by USA?
B. Was the face amount of the check greater than the amount of cash provided to the customer?
C. Did USA agree to hold the check until a date in the future when the customer was told to return to pay the full face amount of the check?
D. Does the difference between the face amount of the check and the amount of cash provided to the customer constitute the charging of interest for purposes of Article 19, § 13?
E. Was the customer given the option of paying the full face amount of the check or paying an additional charge to extend the time that USA would hold the check?
F. Does the charge paid to extend to the time that USA would hold the check constitute the charging of interest for purposes of Article 19, § 13?
G. What was the annual percentage rate for the interest charged to the customer?
H. Did the annual percentage rate charged to the customer exceed the maximum lawful rate set forth in Article 19, § 13?
I. What is the total amount of interest paid by the customer to USA?
J. Is the customer entitled to twice the amount of interest paid to USA?
K. A common defense is whether the fees paid by customers represent a lawful charge for processing the customer’s check or the charge for a service other than the. use of cash for a period of time.

The circuit court next stated that the proposed class representatives had engaged in transactions with USA Check Cashers which they were challenging and that their contention that the fees paid in exchange for deferred presentment of their checks was interest on usurious contracts was typical of the claims of the members of the class who engaged in the same transactions. As to defenses, the court ruled that USA Check Cashers’ contention that the fees paid for the transactions did not constitute interest was a common defense to all claims as well. Finally, as to the adequacy of representation, the court found that Island and Carter would fairly and adequately protect the interests of the class because they had the requisite intent to serve as class representatives, they were familiar with the practices challenged, and they were capable of assisting in litigation decisions.

The court also found that with respect to Ark. R. Civ. P. 23(b), the questions of law and fact common to the class members predominated over questions affecting only individual members and that a class action was the superior method of resolution. The court then defined the class as follows:

All persons, other than USA Check Cashers, Inc., and its owners and agents, who have received cash advances from USA Check Cashers, Inc., or who have otherwise engaged in deferred deposit or deferred presentment transactions with USA Check Cashers, Inc., at its branch offices in the State of Arkansas from January 4, 1997 through March 1, 2001.

USA Check Cashers appeals from this order granting class certification.

I. Class Certification

a. Adequacy of Representation

USA Check Cashers first claims in its appeal that class certification was not proper in this case because the proposed class representatives, Island and Carter, are less effective as plaintiffs than other persons who might fall within the proposed class. Specifically, the company asserts that the appellees “sacrificed” a claim that the loans were consumer loans under Article 19, § 13(b), of the Arkansas Constitution, which would void the loans entirely. According to USA Check Cashers, this claim might be available to other members of the class but was not raised in the complaint filed by Island and Carter. USA Check Cashers submits that the willingness of the class representatives to sacrifice substantial rights of the class renders them inadequate as class representatives.

The company further maintains that Carter is subject to the affirmative defense of estoppel, and as such, she is subject to a defense that might not be pertinent to other class members. USA Check Cashers also contends that Carter may be subject to the defense of waiver in that she purportedly signed an arbitration agreement in which she waived her right to file a lawsuit like the one at issue.

With regard to Island, USA Check Cashers urges that because she did not sign an arbitration agreement and has no knowledge of the arbitration or deferred-presentment agreements used, she too is prevented from being an adequate representative. In addition, the company argues that Island may be subject to the defense of statute of limitations on many of her claims, and that because she never signed the new contract issued by it following the passage of the Arkansas Check Cashers Act, Arkansas Code Annotated §23-52-102 through 117 (Supp. 2001), she cannot adequately represent those persons who did.

We first note that neither the briefs filed by the parties in circuit court nor the hearing held before the court on the motion for class certification have been abstracted by USA Check Cashers. Because of this, we do not know precisely what was argued to the court regarding the adequacy of class representation. We do know, however, that the circuit court found Island and Carter to be adequate class representatives and that the court necessarily found against the company on all arguments raised as to adequacy. Accordingly, we will proceed to address the issue.

We note initially that this court reviews a trial court’s grant of class certification under an abuse-of-discretion standard. See Baker v. Wyeth-Ayerst Labs. Div., 338 Ark 242, 992 S.W.2d 797 (1999); SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997). The six criteria for class certification are set out in Ark. R. Civ. P. 23(a) and (b): (1) numerosity; (2) commonality; (3) typicality; (4) adequacy; (5) predominance; and (6) superiority. USA Check Cashers first challenges the requirement of adequacy, which specifically states that the “representative parties will fairly and adequately protect the interests of the class.” Ark. R. Civ. P. 23(a)(4). This court has previously interpreted Rule 23(a)(4) to require three elements:

(1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) that there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.

Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 275, 954 S.W.2d 898, 904 (1997). See also Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997).

There is little doubt that Island and Carter meet the first two standards for class representation. Island stated in her affidavit that she was very pleased with the representation of class counsel, that she felt “up to date” on the case and always had her questions answered. Counsel’s competence was further asserted in the appellees’ Motion for Class Certification. We have held that absent a showing to the contrary, we may presume that the representative’s attorney will vigorously and competently pursue the litigation. See Mega Life & Health Ins. Co. v. Jacola, supra (citing Herbert B. Newberg, Newberg on Class Actions §§ 3.24, 3.42 (3d ed. 1992)). Furthermore, there has been no showing that either Island or Carter has engaged in collusion or has a conflict of interest with respect to other class members.

As to the third criterion set out in Mega Lfe, this court has held that the standard of adequacy is met if the representative displays a minimal level of interest in the action, familiarity with the challenged practices, and the ability to assist in litigation decisions. See also Direct Gen. Ins. Co. v. Lane, supra. In the case before us, the circuit court specifically found that Island and Carter had demonstrated in their affidavits and depositions that they possessed the requisite interest in the action to serve as class representatives. The court further found that they showed a familiarity with the practices challenged in the complaint and were capable of assisting in the litigation decisions. The court then concluded that both Carter and Island would fairly and adequately protect the interests of the class.

We disagree with USA Check Cashers that the affirmative defenses raised against Island and Carter and their failure to assert a “consumer loan” claim render them inadequate representatives. This court has been adamant in holding that an order denying or granting class certification is separate from a judgment which delves into the merits of the case. See, e.g., BPS, Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000); BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000). Moreover, this court has repeatedly held that we will not look either to the merits of the class claims or to the appellant’s defenses in determining the procedural issue of whether the Rule 23 factors are satisfied. See, e.g., BNL Equity Corp. v. Pearson, supra; Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. 322, 5 S.W.3d 423 (1999); Direct Gen. Ins. Co. v. Lane, supra.

Class members, of course, may opt out of the class if they are not satisfied with the complaint or remedies asserted. See, e.g., Luebbers v. Advance Am. Cash Advance Ctrs. of Arkansas, Inc., 348 Ark. 567, 74 S.W.3d 608 (2002); Haberman v. Lisle, 317 Ark. 600, 884 S.W.2d 262 (1994). Although we held in BPS, Inc. v. Richardson, supra, that class certification is not appropriate when a putative class representative is subject to unique defenses that threaten to become the focus of the litigation, that is not the case in the matter before us. The general defenses asserted against Island and Carter such as estoppel, waiver, and statute of limitations may be just as applicable to other members of the class and may warrant the establishment of subclasses. They are not unique to the appellees. Moreover, the allegation that the third amended complaint does not specifically raise a consumer-loan claim under the Arkansas Constitution is not a basis for a finding of inadequacy. Several factors may have entered into the drafting of the complaint to which we are simply not privy.

We hold that the circuit court did not abuse its discretion on the adequacy-of-representation point.

b. Superiority

USA Check Cashers next argues that the fact that the claims of the putative class are small in amount is not enough to justify a class action. It further contends that there are several other avenues which the purported class members could take to resolve their differences with the company, including arbitration, small claims court, selRhelp, or individual actions in circuit court. The company states, in addition, that the appellees have failed to submit a sufficient trial plan and, instead, have merely set forth an elementary three-phase plan. The company continues that because of the anticipated number of subclasses, the overall class will prove to be unmanageable. Furthermore, the company claims that a number of the issues relating to class members will have to be resolved on an individual basis.

This court has held with respect to superiority that the requirement is satisfied if class certification is the more “efficient” way of handling the case and if it is fair to both sides. See BPS, Inc. v. Richardson, supra. Real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. See SEECO, Inc. v. Hales, supra; Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991).

Here, the'circuit court ruled that because the potential recovery to each member of the class was expected to be relatively small and would not justify contingency fee cases nor cases in which attorneys charge on an hourly basis, a class action was the superior method for adjudicating these claims. The overarching issue in this case concerns USA Check Cashers’ uniform practice of requiring a fee in exchange for an agreement to defer presentment of the customer’s check for payment and whether that fee is usurious interest. Because of the pervasiveness of this issue in the transactions of all potential class members, it would be economically and judicially inefficient to require all putative class members, of which there could be as many as 2,680, to file individual suits in a small-claims court.

To be sure, USA Check Cashers may have defenses available to it as to various individual members or even subclasses, but this is no reason to deny certification. To the contrary, this court has held that the class-action procedure is judicially efficient in resolving not only common claims but also common defenses. See, e.g., SEECO, Inc. v. Hales, supra; Mega Life & Health Ins. Co. v. Jacola, supra. The Proposed Trial Management Plan submitted to the court by Island and Carter certainly contemplates resolving common defenses in Phase I, as evidenced by the language of the proposal: “The Court may also determine in Phase I of the trial any common defenses asserted by the defendant, e.g., whether class members who entered into a transaction after the filing of this lawsuit are estopped from asserting a claim.” Finally, as to manageability, this court has made it abundandy clear that a circuit court can always decertify a class should the action become too unwieldy. See BNL Equity Corp. v. Pearson, supra; Fraley v. Williams Ford Tractor & Equip. Co., supra.

We conclude that a class action is the superior method for adjudicating the class members’ claims.

c. Predominance

For its final point, USA Check Cashers argues that the claims of individual claimants depend on each claimant’s particular interaction with the company. Additionally, the company asserts that because individual defenses would become the focus of the litigation, class certification is inappropriate.

We have already addressed this point in large part. USA Check Cashers appears to be challenging the predominance requirement, and the starting point for our analysis is whether a common wrong has been alleged against USA Check Cashers respecting all class members. See BPS, Inc. v. Richardson, supra. Again, as already underscored in this opinion, there are overarching common questions present in this case as the circuit court outlined in its order. Those questions include: whether USA Check Cashers’ transactions were loans with interest accruing and whether those transactions violated the Arkansas Constitution. We conclude that these common questions predominate over individual questions. The mere fact that individual issues and defenses may be raised by the company regarding the recovery of individual members cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing which must be resolved for all class members. Newberg on Class Actions speaks directly to this point:

Challenges based on the statutes of limitations, fraudulent concealment, releases, causation, or reliance have usually been rejected and will not bar predominance satisfaction because these issues go to the right of a class member to recover, in contrast to underlying common issues of the defendant’s liability.

SEECO, Inc. v. Hales, 330 Ark. at 413, 954 S.W.2d at 240 (quoting 1 Herbert B. Newberg, Newberg on Class Actions § 4.26, at 4-104 (3d ed. 1992)).

Again, common issues, as far as alleged wrongdoing and defenses, predominate in this case, and we affirm the trial court on this point.

Affirmed.

Glaze, J., not participating.

       In the initial complaint, filed January 4, 2000, Cindy Brim served as the plaintiff. In the amended class action complaint, filed April 27, 2000, Roger Splettstoessa was named plaintiff It is in the third amended complaint that Island and Carter were named as plaintiffs and proposed class representatives.