text:
    C.W. “Salty” MORTON v. The BENTON PUBLISHING COMPANY, INC., d/b/a The Benton Courier, et al.
    86-195
    727 S.W.2d 824
    Supreme Court of Arkansas
    Opinion delivered April 13, 1987

      Morris W. Thompson, for appellant.

      Baxter, Eisele, Duncan & Jensen, for appellee.
   Steele Hays, Justice.

Some weeks after C. W. “Salty” Morton (appellant) had publicly announced his candidacy for Sheriff of Saline County, The Benton Courier (appellee) published an article by Lee Brockway (appellee) in its February 26, 1986 issue stating that Morton had been arrested in 1980 by the Little Rock Police and charged with theft by receiving, a felony. According to the article Morton later changed his plea to guilty to a reduced charge of fraudulent use of a credit card and was sentenced to one year’s probation. A year later the charge was dismissed and the record expunged. The article added that Morton was known by the alias Charles W. Martin, III. The following day the newspaper published an editorial entitled “Time to Get Out,” restating some of the same assertions and declaring that Morton should withdraw from the sheriffs race because of his background.

Morton filed a defamation suit against The Benton Publishing Company, Inc., doing business as The Benton Courier, and against reporter Lee Brockway and managing editor Dennis Byrd, seeking damages of $3,500,000. The defendants asserted the truth of the article as an absolute defense, “editorial privilege,” that the plaintiff was a public figure by reason of his announced candidacy and the absence of actual malice. The defendants filed motions for summary judgment with supporting affidavits, which Morton controverted. Morton also filed a motion asking Circuit Judge John Cole to recuse because of relational ties to Carole Cole Hodges, wife of S.M. Hodges, owner and publisher of the Benton Publishing Co., Inc., d/b/a The Benton Courier. The motion alleges that Mrs. Hodges is the daughter of James C. Cole, the uncle of Judge Cole. Judge Cole denied the motion to recuse and granted the motion for summary judgment. Morton has appealed on two points: there were genuine issues of material fact to be decided and the motion to recuse should have been granted.

We do not reach the propriety of granting summary judgment because we are decidedly of the view that Judge Cole should have recused. He acknowledged for the record that he and Mrs. Hodges were first cousins but not particularly close, that he saw her as much as twice a year, “probably less than that” for the past several years. However, when the relationship is within the proscribed limits, neither the frequency of contact nor the closeness of the individuals bears on the result. Our law is clear and makes no allowance for exception.

Art. 7, § 20 of our Constitution (1874) reads in part:

No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law. . . .

Ark. Stat. Ann. § 22-113 (Repl. 1962) reads:

No judge of the circuit court, justice of the county court, judge of the court of probate or justice of the peace, shall sit on the determination of any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity......

The same language set forth in the foregoing constitutional and statutory provisions was construed by this court as early as 1852. See Kelly v. Neely, 12 Ark. 657 (1852). In Kelly, Judge Beaufort H. Neely refused to hear and decide a pending case because he was within the fourth degree of consanguinity or affinity to one of the parties (Neely was married to the niece of a defendant’s wife). The plaintiff applied to the supreme court for a writ of mandamus to compel Judge Neely to hear the case, and this court denied the relief sought, finding the judge’s wife was in the second degree of consanguinity to her niece, the defendant’s wife; thus, Judge Neely was in the same degree by affinity. In declaring that Judge Neely was within the proscribed degree, the court said:

The method of computing the degrees of consanguinity in the canon has been adopted by the common law, and is as follows: We begin at the common ancestor, and reckon downwards, and in whatever degree the two persons or the most remote of them is distant from the common ancestor, that is the degree in which they are related to each other.

Here, Judge Cole and Mrs. Hodges are first cousins, and in computing their relationship under the common law rule adopted in Arkansas, a grandparent is their common ancestor from whom they are two generations removed and, therefore, related in the second degree of consanguinity. See also Ark. Stat. Ann. § 61-144 (Repl. 1971). Clearly, Judge Cole’s relationship comes within the prohibition prohibited by our constitutional and statutory law. That being so, Mrs. Hodges’ husband shares the same degree of relationship by affinity to Judge Cole.

The Code of Judicial Conduct, adopted by this Court by Per Curiam order of November 5, 1973, 255 Ark. 1075, 493 S.W.2d 422 (appendix), provides that, “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where. . . (d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party to a proceeding. . . .” Canon 3(C)(l)(d)(i). See 28 U.S.C.S. § 455 and Brill, The Arkansas Code of Judicial Conduct, 24 Arkansas Law Review 247.

Appellees submit that appellant offered no proof in support of the motion to recuse beyond the bare allegation that Judge Cole and Mrs. Hodges were first cousins and that her husband was the owner and publisher of the defendant company. Granted, there was no showing of the actual extent of Mr. Hodge’s interest in the publishing company and appellant should have made the required proof. See Arkansas Highway Commission v. Conway Development Corporation, 244 Ark. 988, 428 S.W.2d 291 (1968). However Judge Cole properly declared his connection with Mrs. Hodges for the record and acknowledged that Mr. Hodges had a proprietary interest in the company, a primary defendant in the case. If the appellees had taken issue with the allegation that Mr. Hodges is the owner and publisher, appellant’s failure to make the proof might be dispositive of the point, but they did not and apparent fairness being the issue, we believe it can be assumed Mr. Hodges’ interest is more than nominal. Since Mrs. Hodges and Judge Cole are clearly within the degree of consanguinity prohibited under the statute, he should have removed himself from the case.

Reversed and remanded.


source: Caselaw Access Project

author: Thomas S. Streetman, Special Justice. John I. Purtle, Justice,

license: Public Domain

text:
    ARKANSAS SECRETARY OF STATE and ARKANSAS INSURANCE DEPARTMENT, Public Employee Claims Division v. J. T. GUFFEY
    86-141
    727 S.W.2d 826
    Supreme Court of Arkansas
    Opinion delivered April 13, 1987

      Jerry G. James, Public Employee Claims Division, Arkansas Insurance Department, for petitioners.

      Walter A. Murray, and Allen, Cabe & Lester, A Professional Association, for amici curiae, Arkansas State Chamber of Commerce, Associated Industries of Arkansas, Inc., and Arkansas Self-Insurers Association.

      Gary Eubanks & Associates, by: James Gerard Schulze, for respondent.

      Youngdahl, Youngdahl & Wright, P.A., by: Randall A. Wright, and James A. McLarty, for amici curiae, Arkansas State AFL-CIO and Arkansas Trial Lawyers’ Association.
   Thomas S. Streetman, Special Justice.

This is a workers’ compensation case. We granted certiorari to review the legal basis of the court of appeals’ decision reversing the Arkansas Workers’ Compensation Commission. See, Guffey v. Arkansas Secretary of State, 18 Ark. App. 54, 710 S.W.2d 836 (1986). The issues are two-fold: (1) did the Commission err in finding that the Arkansas Workers’ Compensation Law (the Act) does not authorize payment of current total disability benefits after the healing period, and (2) did the Commission err in deciding the issue of permanent disability benefits.

On July 27,1981, respondent, Guffey, fell and fractured his right ankle while employed as a maintenance worker for petitioner, Arkansas Secretary of State. He was paid temporary total benefits from July 28, 1981, through April 25, 1983. Dr. Jerry Thomas treated respondent for his injuries. Respondent had surgery on his foot on July 28, 1981. On April 25, 1983, Dr. Thomas stated that respondent had a fifty-five percent permanent impairment to his right foot. The Commission found that the healing period ended April 25, 1983.

Based on Dr. Thomas’ April 25th rating, petitioner paid respondent fifty-five percent permanent partial impairment to the right foot as a scheduled injury under Ark. Stat. Ann. § 81-1313(c) (Repl. 1976).

Subsequently, additional surgery was performed on respondent’s foot on September 20, 1984, and he sought additional temporary benefits. At a hearing before the administrative law judge on October 26,1984, respondent claimed he was entitled to additional benefits because he had an additional period of disability from April 26, 1983 to September 20, 1984. At that hearing respondent contended that he was either permanently and totally disable'd or currently totally disabled. However, counsel for both parties agreed that the only question for decision at that time was whether respondent was entitled to current total disability benefits after April 25,1983. This was the only issue on which evidence was presented at the hearing.

The administrative law judge denied current total benefits after April 25, 1983, and respondent appealed to the full Commission. The Commission affirmed the administrative law judge on the denial of current total benefits and also denied recovery for any permanent total benefits although that issue was not before the law judge.

Although the Commission noted that it had previously approved current total disability awards that extended beyond the healing period, it stated that the concept of current total benefits was creating difficult problems for the Commission. In illustrating the problems, the Commission quoted from its decision in Leslie v. Sanyo Mfg. Co., WCC No. D007121 (1984):

The concept or doctrine of current total disability, a term not to be found in the Arkansas Workers’ Compensation Act itself, has been sanctioned several times in recent years by the Arkansas Court of Appeals, (citations omitted)... Indeed, it must be candidly admitted that the concept of current total disability, which is neither mentioned nor defined in the statute and not discussed by any of the leading text writers on the subject of workers’ compensation which have been reviewed, is presenting to this Commission difficult and perplexing problems in determining its applicability.
It is perhaps appropriate to observe at this point that the Commission itself for the past few years has been increasingly applying the concept of current total disability (or something akin thereto without using that particular terminology) without really defining the doctrine, without stating its specific statutory authorization, and without describing its parameters.

The Commission reviewed several cases from the court of appeals supporting the award of current total disability benefits after the healing period had ended and before determination of permanent benefits. In holding that respondent was not entitled to current total benefits, the Commission found there was no statutory basis for award of current total disability benefits that extended beyond the healing period.

Was the Commission correct in holding that the Act does not provide for payment of current total disability benefits after the healing period ends? In construing the Act, it is well settled that we must liberally interpret it, resolving all doubts in favor of the claimant. This court has consistently so interpreted the Act. Purdy’s Flower Shop v. Livingston, 262 Ark. 575, 559 S.W.2d 24 (1977); Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976); International Paper Co. v. McGoogan, 255 Ark. 1025, 504 S.W.2d 739 (1974). However, where the Act is clear and not subject to interpretation, we must adhere to the law as enacted.

Workers’ compensation laws are entitlement legislation. These laws were enacted to create rights and benefits for injured workers and their dependents. For benefits to be awarded, they must be provided for in the Act. Our Act does not mention current total disability benefits. Neither are there any cases by this court specifically authorizing payment of current total disability benefits.

There are, however, several decisions, in addition to this case, by our court of appeals which have specifically sanctioned the payment of current total disability benefits. Sunbeam Corporation v. Bates, 271 Ark. 385, 609 S.W.2d 102 (1980); City of Humphrey v. Woodward, 4 Ark. App. 64, 628 S.W.2d 574 (1982); Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982); Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984); Pitts v. Western Electric, 15 Ark. App. 85, 689 S.W.2d 582 (1985); and Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985). However, counsel for respondent conceded during oral argument that he was unaware of legislation or cases from other jurisdictions which permit payment of current total disability benefits after the healing period ends. None of the text writers discuss the award of current (non permanent) total benefits beyond the healing period.

The concept of current total disability benefits seems to have been based on our decision in McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W.2d 502 (1966) although that terminology is not expressly mentioned in that case. To the extent that McNeely has been interpreted as holding that temporary benefits, regardless of how they are denominated, may be paid after the end of the healing period, that interpretation is erroneous.

Our Act does not authorize award of current total or limited total disability benefits after the end of the healing period. If those benefits are to be provided, it will be necessary for the Arkansas General Assembly to determine the circumstances under which injured workers will qualify for those benefits.

The court of appeals erred in reversing the Commission’s decision that it had no legal authority to award current total disability benefits after the end of the healing period.

The court of appeals also held that the Commission erred in deciding the issue of permanent disability benefits. We agree. At the hearing before the administrative law judge, the parties stipulated that the only issue was respondent’s status from April 26,1983, until August, 1984. The administrative law judge only decided that issue. The parties were not given an opportunity to develop the issue of permanent disability.

The court of appeals correctly held that the Commission erred in deciding the permanent disability issue.

Reversed and remanded.

Special Justice Thomas Burke joins in this opinion.

Hays and Glaze, JJ., not participating.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur with that part of the majority opinion which holds that there is no authority for “current total disability.” However, I believe the language of the majority opinion is overly broad. The majority has stated this principle in a manner which might be misinterpreted and could result in a determination that once a healing period has ended, no additional temporary compensation may be paid regardless of the consequences and nature of the compensable injury. It is my fear that this decision might be interpreted to hold that injured workers are barred from receiving successive or interrupted periods of temporary total or partial disability.

The majority states: “[t]o the extent that McNeely has been interpreted as holding that temporary benefits, regardless of how they are denominated, may be paid after the end of the healing period, that interpretation is erroneous.” This part of the opinion is subject to the interpretation that after a temporary healing period has been interrupted, it can never be resumed. It is not necessary to extinguish currently existing rights in order to resolve the issue of “current total disability.” Failure to allow a temporary total disability period to be interrupted by an attempt at part or full time work would destroy the incentive for an injured worker to temporarily re-enter the labor field.

The Workers’ Compensation Act is social legislation and should be interpreted liberally in favor of the worker. In fact, since the beginning of the Act, an interruption of a period of temporary total disability, by obtaining a less strenuous job, has been held to create separate periods of disability. In the case of Monticello Cotton Mills Company v. Larkin, 213 Ark. 713, 212 S.W.2d 346 (1948), this Court dealt with this same problem. In Larkin the Court stated:

Larkin’s award was for $10.40 per week for disability resulting from injuries received June 18, 1942, — began June 23, 1942, and continued until July 27 of the same year. Larkin then resumed work, continuing the employment until March 6, 1943, when the same disabling cause compelled relinquishment of the position. September 15, 1943, the Commission directed a resumption of payment, and under this order the obligation for 110 5/7 weeks was discharged — that is, to March 16, 1945. Larkin then obtained employment at the Camden Naval Ordnance Plant, being so engaged November 16,1946, at which time unemployment occurred, and a claim for resumption of payments was asserted. On the ninth of April, 1947, the Commission found that appellee still suffered permanent, partial disability entitling him to compensation of $7.00 per week during continuance of the impairment, subject to controlling provisions of Act 319. . . .

I am aware that the Act that existed at the time Monticello was decided is not exactly the same as the present Act. I also realize that Arkansas was the forty-seventh state to enact Workers’ Compensation laws. However, simply because we were late in adopting such legislation is no reason to continue to be behind the rest of the country. Since the inception of the Act, both this Court and the Court of Appeals have upheld the principle of “time out” during temporary work re-entries. In Larkin the Court stated:

To hold that the weekly period must be reduced to correspond with “time out” during voluntary employment would be to say, in effect, that the injury is not to be fully compensated and that essence of the Act is time. We do not think this was the legislative intent, hence the judgments must be affirmed.

The terms “temporary total” and “temporary partial disability” are not synonymous with “healing period.” In Arkansas State Highway Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), this Court stated:

Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. . . [Temporary partial disability is that period within the healing period in which the employee suffers only a decrease in his capacity to earn. . . .

The plain words set forth in Ark. Stat. Ann. § 81-1302 (Repl. 1976) define “disability” as meaning an incapacity to earn because of injury. The statute further states that “healing period” means that period for healing of the injury resulting from the accident. It is clear that the Act contemplates different periods of “disability” during the “healing period.”

Frequently an employee will be conditionally released from a “disability” in order to attempt to return to gainful employment. This was the case in Breshears. Sometimes an injured employee may be declared by the attending physician to have reached a plateau in his healing period where a release for “light duty” employment would be appropriate and beneficial in order to facilitate re-entry into the work force. Both the employer and the employee would suffer monetary hardships by the failure to encourage such “time outs.” “A claimant’s voluntary efforts to find employment, in spite of physical disability, should not be used to penalize him by preventing him from later receiving compensation which he would otherwise have been entitled to receive.

The “healing period” is not always readily determinable. In the exercise of a physician’s sound judgment, there may be a time when he decides it would be in the best interests of all parties to release a patient for a trial period of employment, even though the patient has not reached the end of the healing period. Often this “temporary” work retards or even aggravates the recovery process. In other cases, the employee will be able to resume light duty, or even his regular duties, long before the end of the healing period. Therefore, the “temporary” disability may end before the healing process is completed.

Successive or reoccurring periods of disability do not necessarily increase the liabilities of the employer or his carrier. The Act limits the maximum payment by time and amount. If an employee were to draw 450 weeks of temporary compensation, then the employer, or its carrier, would not be liable for any additional disability compensation because the Death and Permanent Total Disability Bank Fund would be responsible for the additional payments.

A hard and fast rule that temporary benefits cannot be paid after the end of the healing process might well result in an injustice. For example, a broken mandible might result in a temporary disability period of one week but the healing period would last many weeks. Another example might be that the loss of a foot would require a relatively short time to heal but would require a much longer period of temporary disability to enable the worker to learn to walk with an artificial foot.

Failure to recognize such possibilities will most likely result in the Commission and the courts being compelled to find an “aggravation” or a “reinjury” when in reality it is the resumption of temporary disability after a trial work period. I would make it clear that a claimant’s successful efforts to find employment during the healing period should not be used to penalize him by preventing him from later receiving compensation which he would otherwise have been entitled to receive.


author: Per Curiam. John I. Purtle, Justice,

text:
    Winston HOLLOWAY v. Larry NORRIS
    86-306
    727 S.W.2d 381
    Supreme Court of Arkansas
    Opinion delivered April 13, 1987

      Appellant, pro se.
    No response filed.
   Per Curiam.

Petitioner’s pro se motion for stay of proceedings is denied.

Purtle, J., dissenting.

John I. Purtle, Justice,

dissenting. I would grant the petition to stay our proceedings pending petitioner’s application for relief in federal court. We allow indigents to file handwritten briefs when we permit counsel to withdraw. Our Rule 11 (h) states in part: “The clerk of this court shall furnish the appellant with a copy of his counsel’s brief, and advise the appellant that he has 30 days within which to raise any points that he chooses and that this may be done in typewritten or handprinted form and accompanied by his affidavit that he has not received any [paid] assistance from any inmate. . . .”

We also provide that an indigent appellant’s appointed attorney has the right to have the Attorney General print the briefs. See Rule 11(g). We should recognize the tremendous handicap that an indigent inmate encounters in trying to get a brief printed.

I would allow this motion.


author: Per Curiam. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    Curtis Ray HOWARD v. STATE of Arkansas
    CR 85-78
    727 S.W.2d 830
    Supreme Court of Arkansas
    Opinion delivered April 13, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

In 1983 two masked men robbed a Kroger store in Little Rock. One held a pistol and stood guard at the checkout counter while the other vaulted over a twelve-inch rim of glass atop the nearby office booth, aimed a pistol at the manager’s head and took $2,568.00 in cash. Later that night, George Moore was identified as the robber who stood guard. He was arrested and subsequently pleaded guilty.

Witnesses in the store stated that the robber who vaulted into the booth did so by placing his hand on the glass rim of the office both and pivoting over it. Jim Beck, an expert in fingerprint identification, compared the latent prints left on the glass with petitioner Curtis Ray Howard’s known fingerprints. He positively identified one of the latent prints as being made by petitioner. In addition, he testified that the latent print was made by a person exerting a twisting pressure on the glass, as distinguished from someone placing his or her hand on it in a normal manner such as might occur in the course of ordinary business at the store. One of the store employees who witnessed the robbery testified that petitioner fit the description of the robber who vaulted into the booth, although he could not identify petitioner as the robber.

Petitioner was found guilty by the jury of aggravated robbery and theft of property and sentenced as an habitual offender to consecutive terms of life imprisonment and twenty years. We affirmed. Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985). Petitioner has now filed a forty-page petition seeking postconviction relief pursuant to Criminal Procedure Rule 37. For the sake of clarity, the allegations, most of which are refuted by the trial record, will be discussed one-by-one as petitioner has stated them.

1.

Petitioner was denied a speedy trial and counsel was ineffective for not filing a motion to dismiss the charges on the ground that petitioner’s right to a speedy trial had been violated. Counsel alsofailed to assist petitioner when petitioner raised the speedy trial issue himself in a pre-trial hearing.

The record indicates that the information charging petitioner with robbing the Kroger store was filed in circuit court on April 2, 1984. He was arrested April 12, 1984 and tried on January 10, 1985. Petitioner was incarcerated on other charges during the nine months and eight days he was awaiting trial. From September 13, 1984 through October 3, 1984, he underwent a psychiatric examination at the Arkansas State Hospital.

Criminal Procedure Rule 28.1(b) provides that any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge against him dismissed with an absolute bar to prosecution if not brought to trial within twelve months from the time provided in Criminal Procedure Rule 28.2, excluding periods of delay authorized in Rule 28.3. Petitioner did not contend in the trial court, and does not now contend, that he was not incarcerated while awaiting trial or that the time spent at the State Hospital was not an excluded period under Rule 28.3. His argument was based on his belief that the calculation of the time for a speedy trial commences running at the date the crime was committed or the date of arrest. Rule 28.2(a), however, provides that the time begins to run when the charge is filed in circuit court. As petitioner was tried within twelve months in accordance with Rule 28.2(a), he was afforded a speedy trial, even if the time he was committed to the State Hospital is not considered. If the time in the State Hospital is considered, petitioner was tried within nine months of the date the charge was filed in circuit court.

2.

Counsel and the prosecutor conspired to obtain an order compelling petitioner to undergo a psychiatric examination at the Arkansas State Hospital so that counsel could enter a plea of not guilty on behalf of the petitioner. Instead of permitting petitioner to plead guilty, counsel should havefiled a petition for writ of prohibition on the ground that petitioner had been denied a speedy trial.

An allegation of ineffective assistance of counsel must be supported by facts sufficient to demonstrate that the petitioner suffered some actual prejudice. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Petitioner has not shown that he was denied his right to a speedy trial or that he suffered any prejudice as a result of being committed to the State Hospital for a competency examination.

3.

Counsel did not support petitioner on his motion for continuance based on medical evidence that he had been assaulted by officers at the jail and was on pain-relieving medication as a result.

Petitioner said in a pre-trial motion for continuance that he had been assaulted by the officers who took his fingerprints at the county jail and was on medication for pain. The trial court inquired about the medication and determined that a nurse at the jail had given petitioner some Tylenol and aspirin “or something of that nature.” He alleges that he was forced to go to trial “absent his wit and in severe pain,” but his frequent colloquies with the court and his coherent, if ill-reasoned, defense of his numerous pro se motions belies the allegation. He has clearly presented nothing in this petition to show that a continuance should have been granted.

4.

Counsel should have sought pre-trial dismissal of the indictment on the grounds that the only evidence offered at the omnibus hearing was one fingerprint taken from a public place.

We held on appeal that the fingerprint identification in petitioner’s case constituted substantial evidence of his guilt. Petitioner has not demonstrated that there was any ground on which counsel could have secured dismissal of the indictment at the omnibus hearing.

5.

Counsel was ineffective in that he did not challenge the testimony of fingerprint expert Jim Beck on the ground that Beck was not the one who had conducted the fingerprint comparison at the state crime lab.

The record does not support the allegation. Beck testified that he was the one who made the comparison and petitioner alludes to no proof that this was not true.

6.

Counsel failed to file a pre-trial motion for discovery.

As petitioner does not explain what evidence was withheld from discovery or its significance, the allegation does not warrant postconviction relief. Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).

7.

Counsel should have objected to the testimony of one of the store’s employees that petitioner was similar in appearance to one of the robbers because the prosecutor suggested the similarities to him on direct examination. Also, the employee had seen petitioner in previous lineups. It was wrong for the prosecutor to have him stand up so that the witness could see whether he fit the general description.

The prosecutor asked the witness to describe the robbers’ dress and general appearance and inquired as to whether petitioner looked similar. The witness was unable to make an in-court identification of petitioner as one of the robbers and said that he had been unable to pick petitioner from a lineup. Petitioner does not specify which questions were improper, and the general allegations that there were grounds for counsel to object to the questions and that he should not have been asked to stand are not enough to demonstrate that counsel was ineffective.

8.

Counsel failed to object to the prosecutor’s reading part of the statement made by co-defendant Moore when Moore pleaded guilty until after the jury had already heard it. Further, the contents of the statement had not been disclosed to the defense.

Petitioner’s co-defendant Moore testified in petitioner’s behalf that he (Moore) and a man named Robert Lofton had robbed the Kroger store. The prosecutor sought to impeach Moore with a transcript of statements Moore made when he pleaded guilty. At that time, Moore had not mentioned Lofton and had given a somewhat different account of the robbery. Counsel for petitioner objected that the prosecutor was reading from an incomplete transcript of the proceedings. Since Moore was a witness for the defense, it is reasonable to assume that counsel was aware that Moore had pleaded guilty in the case. It was not improper for the state to inquire as to whether Moore had made a prior statement inconsistent with his testimony. A.R.E. Rule 801(d)(l)(i).

9.

Counsel should have objected when the prosecutor told the jury that petitioner had talked to Moore while they were together in prison.

The record negates the allegation. The prosecutor was careful to avoid asking Moore any questions which would have revealed that petitioner had been in prison.

10.

Counsel should have objected to the judge’s writing a note to the jury during its deliberations when state law provides that questions from the jury be answered in open court.

While the jury was deliberating, it sent a note to the judge by way of the bailiff which said, “Is the fine necessary?” With the agreement of both the state and defense counsel, the judge wrote a note in return which said, “No. It is only an alternative.” Arkansas Statutes Annotated § 43-2139 (Repl. 1977) and Criminal Procedure Rule 33.4 require that questions from the jury be answered in open court, but this is not to say that counsel in petitioner’s case was ineffective for not objecting under the standards of Rule 37 for judging effective assistance of counsel as set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance of counsel under Strickland, a petitioner must show that counsel’s performance was deficient in that counsel made an error so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment to the Constitution. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Even if counsel could have made a meritorious objection, the judgment must stand, unless the petitioner demonstrates that the failure to object had a prejudicial effect on the outcome of the trial. A reasonable probability that but for counsel’s conduct the result of the proceeding would have been different is a probability sufficient to undermine the confidence in the outcome. Strickland v. State, supra; Gunn v. State, 291 Ark. 548, 726 S.W.2d 279 (1987). Since the judge in this case relayed no information of substance to the jury, we cannot say that the outcome of petitioner’s trial was affected by counsel’s failure to object.

11.

The trial court was wrong to accept the testimony of witnesses Beck and Jones concerning the fingerprint evidence because the testimony was hearsay and circumstantial. The evidence was not admissible under Rule 401 of the Uniform Rules of Evidence which defines “relevant evidence” or admissible under Rule 801 which defines “hearsay. ” This court’s recent holding in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), which concluded that the Uniform Rules of Evidence were not validly adopted by the legislature in 1976, renders the judgment in his case invalid.

Ricarte does not provide a remedy unless the issue of the validity of the Uniform Rules of Evidence was raised in the trial court. Halfacre v. State, 290 Ark. 312, 718 S.W.2d 945 (1986). This was not done at petitioner’s trial. Rule 37 is not available as a direct challenge to the admissibility of evidence or to raise questions of trial error. Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974). Even questions of constitutional dimension must be raised in the trial court in accordance with the controlling rules of procedure, or else the issues are waived, unless they are so fundamental as to void the judgment absolutely. Orsini v. State, 287 Ark. 456, 701 S.W.2d 114 (1985). Evidentiary questions are not sufficient to void a judgment.

12.

Petitioner was not afforded the effective assistance of counsel on his motion for new trial.

After he was convicted, petitioner filed a timely pro se motion for new trial, raising claims of error on the part of the trial court and ineffective assistance of counsel. The trial court appointed Rick Holiman to represent him on the motion. At a hearing on the motion, Holiman was granted one week to confer with petitioner and file a supplemental motion if one was needed. The record does not indicate that a supplemental motion was filed and there is no order in the record disposing of the pro se motion. Petitioner now alleges that Holiman was ineffective for the following reasons: (1) he did not support the pro se motion for new trial; (2) he did not attempt to obtain fingerprint evidence confiscated by the prosecutor and the public defender; and (3) he did not obtain newly discovered evidence in the form of conflicting reports on the fingerprint evidence. Petitioner offers no persuasive factual substantiation for either the allegation that the prosecutor and public defender confiscated evidence or the claim that there was newly discovered evidence concerning the fingerprints. Allegations which are not supported with facts which demonstrate prejudice to the defendant are not grounds for postconviction relief. Henderson v. State, 281 Ark. 406, 664 S.W.2d 451 (1984).

It should be noted that petitioner’s motion for new trial raised several issues which had already been settled in the trial court and which were not cognizable in a motion for new trial. The remaining allegations which concerned ineffective assistance of counsel were conclusory in nature and fell far short of establishing that counsel was ineffective.

In response to petitioner’s assertion that he was denied effective assistance of counsel on his motion for new trial, the State argues that a motion for new trial is a collateral proceeding and thus the petitioner was not entitled to effective assistance of counsel. We do not, agree. The sixth amendment guarantee of effective assistance of counsel extends not only to trial but also to appeal where the state allows a first appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387 (1985). Arkansas permits a first appeal as a matter of right. Ark. Stat. Ann. § 43-2701 (Repl. 1977); Criminal Procedure Rule 36.1. Although a motion for new trial is no longer a requisite for appellate review, Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977), the motion, which must be made within the time for filing a notice of appeal, is clearly an extension of the trial proceeding. As such, a convicted defendant has the right to effective assistance of counsel in accordance with the sixth amendment.

Counsel is presumed effective and the burden of overcoming that presumption rests on the petitioner who must establish with factual support for his allegations that counsel’s conduct undermined the adversarial process and resulted in prejudice sufficient to deny him a fair trial. Pride v. State, 285 Ark. 89, 684 S.W.2d 819 (1985); see also Strickland v. Washington, supra. The allegations in the motion for new trial, which are repeated in the instant petition for postconviction relief, were not sufficient to show that he was entitled to a new trial. This fact, coupled with the petitioner’s failure to allude to anything Holiman should have raised which would have been helpful to the defense, leads to the conclusion that petitioner suffered no prejudice sufficient to affect the outcome of the proceedings against him.

Petitioner has filed a motion to amend the instant petition. The motion to amend is a restatement of many of the allegations in the petition with the additional assertion that counsel was ineffective on appeal because he raised only one issue, the sufficiency of the evidence. We have found no merit to the allegations raised in the petition. With regard to the allegation that counsel was ineffective on appeal, the United States Supreme Court has not yet stated the criteria for determining the effectiveness of an attorney on appeal, Evitts v. Lucey, supra, but it may be assumed that the petitioner would at the least be required to make a clear showing that counsel failed to raise some possibly meritorious issue. Petitioner has not met that burden. An attorney need not advance every argument, regardless of merit, urged by his client. See Jones v. Barnes, 463 U.S. 745 (1983).

Petition and motion to amend denied.

Hickman and Purtle, JJ., concur.

Darrell Hickman, Justice,

concurring. I would also deny the petition. I write separately to address the growing problem of innumerable Rule 37 petitions which we are receiving and the unlimited arguments made, which simply attempt to retry a case.

The original opinion in this case was a page and a half. Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985). The petition filed for Rule 37 relief is 40 pages. This majority opinion denying Rule 37 relief is nine pages long. The petitioner, like too many seeking postconviction relief, wants not only a second review of his conviction but also an examination of every possible objection, no matter how ridiculous. Recently a postconviction relief petition was filed of a hundred pages. Twenty and thirty page petitions are not uncommon.

The postconviction proceeding is becoming a legal system unto itself, beginning with us and our trial courts and winding its way through the federal system. It has become an expensive and time consuming part of the criminal justice system. Mostly it is an exercise to see if the legal system will trip itself; guilt or innocence of the crime is usually irrelevant. To insure that a mistake was not made in the conviction, we are required to examine unlimited allegations. This is all after a trial and after a complete review of the conviction. In effect a system for a second appeal is becoming instituted.

We would not tolerate this situation from lawyers and should not from inmates who generally either file their petitions pro se, or with the assistance of a writ-writer. A writ-writer is an inmate that prepares legal petitions and documents for other inmates. (It is ironic that an inmate can practice law without a license while other citizens cannot.) I would place a limit on the number of pages a petition may contain —just as there are limits on pages regarding briefs for appeal. Even a brief in a capital case is limited to 25 typed pages unless permission is obtained to exceed that number.

Five pages for a postconviction petition is a reasonable figure. If a person cannot find a legitimate error and explain it in five pages, it doesn’t merit consideration. After all, we have other demands on our time and judgment. Of course, inmates often, not unlike some lawyers they emulate, hold no expectations that one or any argument has merit; they produce dozens and ask us to find one. I say it has gone too far.

John I. Purtle, Justice,

concurring. I agree with the separate concurrence that it is time consuming to read through and study the petitions filed pursuant to Rule 37. However, since that task is a requirement of my judicial position, it is a duty I must perform. Moreover, I doubt that there are more than a few such petitions filed for the purpose of enlarging the workload on the courts.

In my opinion it would be a denial of equal protection and due process to deny appellants the right to have fellow inmates assist in preparing writs to be presented to the courts. Other persons, even lawyers, are not prohibited from receiving help from persons who are not lawyers.

If it takes a little extra trouble and work to insure a better chance of achieving justice, then so be it. Our system of justice itself should be constantly on trial. To paraphrase Benjamin Franklin — a society that gives up a little liberty to obtain a little order deserves neither. I had rather face a good deal more work in order to preserve a little liberty than have a lot less work and a little less liberty.


author: Per Curiam.

text:
    Johnny SCHERRER v. STATE of Arkansas
    727 S.W.2d 381
    Supreme Court of Arkansas
    Opinion delivered April 13, 1987

      James P. Clouette, for appellant.
    No objection by appellee.
   Per Curiam.

Petitioner Johnny Scherrer, by his attorney, has filed a second motion for a rule on the clerk. His attorney, James P. Clouette, has by affidavit admitted it was his fault that the record was not timely tendered.

Wefindthatthe error, admittedly made by the criminal defendant’s attorney, is good cause to grant the motion for a rule on the clerk.

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


author: Jack Holt, Jr., Chief Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    John HINCHEY, Joyce HINCHEY, Darrell OLIGER, Clarence STRIPLING, Eva STRIPLING, Charles MARSH, Marilyn MARSH and N.A. CAUGHORN v. Patsy THOMASSON, et al., Individually, and as Directors of the Arkansas State Highway & Transportation Department
    86-229
    727 S.W.2d 836

    Supreme Court of Arkansas
    Opinion delivered April 20, 1987.
    [Rehearing denied May 18, 1987.]

      Stripling & Morgan, by: Dan Stripling, for appellant.

      Chris O. Parker and Thomas B. Keys, for appellee.

       Justice Hickman’s dissenting opinion appears at 730 S.W.2d 473.

       Purtle, J., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

At issue in this case is the authority of the Arkansas State Highway & Transportation Department Commissioners (Commissioners) to exchange roads with Van Burén and Searcy Counties. The chancellor found such action was “within the scope of its [the Commissioners] statutory and constitutional authority.” We agree and affirm.

Arkansas State Highway 254 runs through Van Burén and Searcy Counties. It extends from Highway 16 northwesterly across Archey Creek for about six miles. There is a 1.2 mile gap in the highway system. Highway 254 then extends easterly about ten miles to Highway 65 at Dennard, Arkansas.

The Commissioners entered a minute order stating that the section of Highway 254 that crosses Archey Creek would be eliminated from the state highway system and instead would become part of the county road system by transfer. The order then provided that approximately twelve miles of county road were to be added to the remainder of Highway 254 and bécome a state highway. The added road would connect Highway 27 near the Pope County line with the remainder of Highway 254, so that Highway 254 would extend from Highway 65 to Highway 27. The Van Burén and Searcy County Judges entered orders in which they agreed to the transfers.

Appellants own land on the section of Highway 254 that was turned over to Van Burén and Searcy Counties. They brought this suit claiming the Commissioners violated Ark. Stat. Ann. § 76-501 (Repl. 1981) when they authorized the road exchange with the counties.

Section 76-501 provides:

State Highways are hereby declared to be those primary roads and secondary roads and connecting roads heretofore designated by the Highway Commission, as shown by a map on file in the office of the State Highway Commission, entitled “Map of the State of Arkansas Showing State Highway System,” and marked “Revised March 1, 1929,” including those portions of said roads extending into or through incorporated towns and cities. The State Highway Commission is hereby required to preserve said map as a permanent record.
The State Highway Commission is hereby empowered, with any necessary consent of the proper Federal Authorities, to make, from time to time such necessary changes and additions to the roads designated as State Highways as it may deem proper, and such changes or additions shall become effective immediately upon the filing of a new map, as a permanent and official record in the office of the State Highway Commission. Provided, however, the State Highway Commission shall not have authority to eliminate any part of the Highway System.
It is hereby declared to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the State comprising the State Highways as defined herein and hereinafter. [Acts 1929, No. 65, § 3, p. 264; Pope’s Dig., § 6523; Acts 1941, No. 6, § 1, p. 17.] (emphasis added).

The landowners correctly contend that the proposed exchange of roads with the counties would cause the elimination of part of the state highway system, which is prohibited by § 76-501.

Nevertheless, the landowners’ argument must fail because of subsequent legislation enacted by the General Assembly. Act 150 of 1961 is entitled, “An Act Relating to the Improvement of Federal-Aid Secondary Highways; to Authorize the State Highway Commission and the County Judges of the Respective Counties to Enter Into Agreements Providing for the Exchange of Highways in Their Respective Highway Systems; and for Other Purposes.” (emphasis added). Sections four and five of that Act provide:

SECTION 4. The State Highway Commission and the County Judges of the respective counties are hereby authorized to enter into agreements whereof certain highways in the State Highway System become a part of the County Highway System, and certain highways in the County Highway System become a part of the State Highway System. All such transfer agreements shall be recorded in the minutes of the Commission and spread upon the appropriate county court record.
SECTION 5. The provisions hereof are supplemental to existing laws relating to the subject matter of this Act.

The Commissioners through their minute order, and the county judges through their orders complied with the requirements of section four. The landowners point out that the county judges apparently did not enter their orders until after this lawsuit was filed. Section four, though, merely requires that the order be “spread upon the appropriate county court record.” No time limit is placed on compliance with this provision.

The plain language of section four unambiguously authorizes the exact action taken by the Commissioners and the counties. This court has no authority to construe a statute that is plain and unambiguous to mean anything other than what it says. Weston v. State, 258 Ark. 707, 528 S.W.2d 412 (1975); Johnson v. Lowman, 193 Ark. 8, 97 S.W.2d 86 (1936). When a statute is clear and unambiguous, we do not resort to any exploration for the legislative intent because the intention of the legislature must be gathered from the plain meaning of the language used in the statute. Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969), (Fogleman, J., dissenting).

The landowners argue that Act 150, which has never been codified, was legislation only for the biennial period beginning January 1, 1961 and ending December 31, 1962, and that section four, therefore, was not general legislation and does not supersede § 76-501. Sections one through three of Act 150 do pertain to the biennial period only, as those sections relate to the improvement of federal-aid and secondary highways. The applicable time frame is specifically stated in those sections. Section four, on the other hand, concerns a different subject matter and no time frame is mentioned. As stated previously, inasmuch as the plain meaning of section four can be ascertained from the language used, this court may not speculate as to the legislative intent in passing this act. The fact that the act has never been codified is not proof that it is special legislation only. Statutory codes are private codes and the absence of an act in the statutes does not indicate that act is invalid. See Sutherland Statutory Construction, § 28.04 (4th ed. 1985).

Section five of Act 150 states that its provisions are “supplemental” to existing law. Because of the conflict, however, between § 76-501 and section four, a repeal by implication of this portion of the statute occurred with the passage of the act. We have explained that repeals by implication are not favored in the law and to produce this result “the two acts must be upon the same subject and there must be a plain repugnancy between their provisions.” Milord & Blanks, Trustees v. Arkmo Lumber & Supply Co., 272 Ark. 462, 615 S.W.2d 349 (1981), quoting, Forby v. Fulk, Judge, 214 Ark. 175, 214 S.W.2d 920 (1948). The act passed most recently operates in this situation as a repeal of the first, but only to the extent of the conflicting provisions. Id. Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964).

Section 76-501 provides that the Commissioners may not eliminate any part of the highway system; Act 150 authorizes the Commissioners to exchange lands with the county highway system, which would in effect eliminate those parts being transferred from the state highway system. The two laws are plainly repugnant. The remainder of § 76-501 is unaffected by Act 150, however, and accordingly remains in force.

The chancellor’s order upholding the action of the Commissioners is affirmed.

Hickman, Purtle, and Glaze, JJ., dissent.

Darrell Hickman, Justice,

dissenting. In my judgment the majority goes to great lengths to uphold the action of the Arkansas State Highway Commission. I must respectfully dissent, because I would not declare an act valid that presumably has expired. Nor would I go so far as to hold that one provision of an obscure act was intended by implication to overrule a law that has been on the books since 1929. The majority concedes the Highway Department acted after the lawsuit was filed, that the obscure section was never codified (not published in the official edition of Arkansas Statutes Annotated) and that we do not favor repeal by implication. Casting off all these good reasons to reach one result, it reaches the other untenable position.

The Highway Department decided to abandon a short stretch of road linking two other state highways. A faint argument can be made that a part of the highway system was not “eliminated as whole” according to Woollard v. Arkansas State Highway Comm., 220 Ark. 731, 249 S.W.2d 564 (1952); but that argument simply will not stand the light of day because this section of the system, running north and south, was the whole — not a part of a highway. The majority has seized the belated reason offered by the Highway Department to justify the abandonment of this road. An obscure section of an act passed in 1961 was resurrected to justify the action. The act was clearly not intended to live beyond December 31, 1962, its expressed lifetime. Would any legislator have thought section 4 was intended to expressly overrule a law that had been on the books since 1929? If so, the legislators were deceived. It should be noted that no mention was made the sections were severable. Those responsible for publishing permanent laws did not read the act as covering separate subjects. Would any layman reading this act think section 4 would stand alone? The act speaks for itself and I set it forth in its entirety:

AN ACT Relating to the Improvement of Federal-Aid Secondary Highways; to Authorize the State Highway Commission and the County Judges of the Respective Counties to Enter Into Agreements Providing for the Exchange of Highways in Their Respective Highway Systems; and for Other Purposes.
Be It Enacted by the General Assembly of the State of Arkansas'.
SECTION 1. As soon as may be done consonant with good business practices, the State Highway Commission shall, during the biennial period beginning January 1, 1961 and ending December 31,1962, award contracts, and issue work orders thereon, for the improvement of federal-aid secondary highways in the State Highway System, the surfaces of which have not been paved with concrete or asphalt, of an amount not less than $7,500,000, whereof not less than $100,000 shall be for work in each county of this State. The records of the State Highway Department shall at all times reflect, with respect to each such contract: the project number and name; the date of the award; the amount thereof, and if in more than one county, the amount in each county; the date of the issuance of the work order to the contractor; and the amount paid or approved for payment on each such project, by counties. Provided, that in the event any such improvement project is undertaken by State forces, then the total amount thereof, by counties, shall be included in the records of the Department, and shall be considered a part of the improvements required to be made hereunder.
SECTION 2. If, not later than December 31, 1962, contract awards and/or work done by State forces as provided by Section 1 hereof shall amount to less than $ 100,000 in each county, then such amount shall forthwith be expended by the State Highway Department, either by contract or by State forces, on federal-aid secondary highways in the County Highway System of such county; and in respect thereof, the State Highway Commission shall consider the recommendations of the County Judge as to the particular improvement project, or projects, to be undertaken as in this section required.
SECTION 3. The State Highway Commission shall furnish the Governor and the County Judge of each county with progress reports in relation to the foregoing requirements, with each such report to be furnished not later than the 20th day next following: December 31,1961, June 30, 1962, December 31, 1962 and June 30, 1963.
SECTION 4. The State Highway Commission and the County Judges of the respective counties are hereby authorized to enter into agreements whereof certain highways in the State Highway System become a part of the County Highway System, and certain highways in the County Highway System become a part of the State Highway System. All such transfer agreements shall be recorded in the minutes of the Commission and spread upon the appropriate county court record.
SECTION 5. The provisions hereof are supplemental to existing laws relating to the subject matter of this Act.
APPROVED: March 1, 1961.

Recently, we refused to hold a provision in the tax code could alter the Freedom of Information Act, though they were in direct conflict. Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986); see also Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 122 S.W.2d 581 (1987). Are highways less important to people? Are public roads and their maintenance not one of the main functions of state government? Can the rights of a few citizens be brushed aside?

If the Highway Department wants the authority to do what it did, the legislature is there to grant or deny that permission. The Highway Department has to follow the law just like everyone else, and is entitled to no more consideration than the least powerful citizen. If anything, a state agency’s welfare comes after the welfare of the people.

Since the Highway Department did not follow the law, the road ought to remain in the state system until changed lawfully.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the majority opinion because I do not believe the Highway Commission has the authority to eliminate a portion of the state highway system. The majority opinion concedes that this “exchange of roads” is prohibited by Ark. Stat. Ann. § 76-501 (Repl. 1981). The opinion bases its decision on the rather tenuous premise that the relevant portion of § 76-501 was repealed by implication by Act 150 of 1961. Even if this proposition is accepted as valid, however, I do not believe the “exchange” was accomplished in accordance with the law.

The commissioners entered minute order No. 84-413 and No. 84-414 on September 25, 1984. These orders added and deleted certain sections of State Highway 254, Van Burén County Road 68 and Searcy County Road 6. The state thereby incorporated 7.2 miles of road into its system and eliminated 6.1 miles. Although the state retained that portion of the road which transverses Farkleberry Creek, it eliminated the Archey Creek section from the state highway system. The terrain in the Archey Creek section is steep, and the road is narrow, rocky, and crooked. It was, and is, the expense of improving and maintaining this section which makes this road undesirable and motivated the state to abandon it.

Neither minute order No. 84-413 or No. 84-414 mentioned the exchange of roads between the counties and the state. In fact there were only two conditions contained in each order: these requirements were that each county furnish rights of way, clear of utility easements, to the added sections, and that the new sections be hard surfaced to meet the federal standards.

Other than the terrain features already mentioned, the effect of the change orders was to drop a 6.1 mile section of highway, which runs generally north and south, and add a 7.2 mile section, which runs east and west. Formerly, Highway 254’s western (actually the southern end of the deleted section) terminus was at Highway 16, almost due south of where Highway 254 entered Searcy County. Now, the western terminus is at Highway 27, some 12 miles west of the former terminus.

Minute order No. 85-592 amended the two previously mentioned orders and provided for the immediate acceptance of the new section into the state highway system. The order stated that the new section of Highway 254, in the Chimes community, was causing the traveling public difficulty because of deteriorating road conditions and inclement weather. This amendment ordered the inclusion of this section without the fulfillment of the previously imposed conditions.

The appellants filed suit against the Commission on January 23, 1986. On February 12, 1986, the Searcy County Judge entered an order reciting the Commission’s minute order No. 85-592 and stating that the highways were “exchanged.” A like order was entered by the Van Burén County Judge on February 18, 1986. This order also cited minute order No. 85-592 as authority for the “exchange.” It is quite obvious that the county orders were entered in an effort to “shore up” the Commission’s position. There is no need to shut the barn door after the horse is out.

I agree with the majority that Ark. Stat. Ann. § 76-501 clearly states that the Commission does not have the authority to eliminate any part of the state highway system. However, I disagree with the majority on the meaning of Act 150 of 1961. There was good reason not to codify Act 150 because it was clearly not intended to be a permanent statute. Section 1 of the Act provides that “during the biennial period beginning January 1, 1961 and ending December 12, 1962, the Commission shall. . . .” Section 3 provides that the Commission shall furnish annual reports each six months until June 30,1963. All of the Act except Section 4 unquestionably applies solely to the period of time between January 1, 1961, and June 30, 1963.

Even if Section 4 is applicable beyond that period, we must still read it together with other law on the same subject. The last sentence of Section 4 of Act 150 states: “All such transfer agreements shall be recorded in the minutes of the Commission and spread upon the appropriate county record.” Until after the present suit was filed, there was absolutely no mention of the transfer of the abandoned section of State Highway 254 to the counties. Certainly there was no transfer agreement even alluded to in the minute orders of September 25, 1984.

The majority correctly quotes the law of statutory construction. The basic rule is to read a statute according to its plain and unambiguous words. Weston v. State, 250 Ark. 707, 528 S.W.2d 472 (1975). We do not construe a statute when the language is clear and plain. Johnson v. Lowman, 193 Ark. 8, 97 S.W.2d 86 (1936). In keeping with these rules of construction, it is clear that the Highway Commission cannot abandon any part of the state highway system. Under the language of Act 150 the Commission may, however, exchange part of the state highway system by agreement with the respective counties. In the present case there was no such agreement and consequently there could be no such exchange. Even if Act 150 is construed as general legislation, the law does not provide for the abandonment of any part of the state highway system.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    UNITED PARCEL SERVICE, INC. v. PRIDGEN SECURITY, INC.
    86-237
    727 S.W.2d 381
    Supreme Court of Arkansas
    Opinion delivered April 20, 1987

      Wright, Lindsey, Jennings, for appellant.

      Harkey, Walmsley, Belew & Blankenship, by: Leroy Blankenship, for appellee.
   Darrell Hickman, Justice.

This appeal is dismissed because the order appealed from is not an appealable order according to ARCP Rule 54(b). Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987).

Wanda Beard, an employee of Pridgen Security, Inc., sued United Parcel Service for negligence as a result of injuries she suffered while working at UPS as a security guard. UPS filed a third party complaint against Pridgen asking for indemnification, because of an agreement between Pridgen and UPS. The agreement required Pridgen to indemnify UPS from any claim made by a Pridgen employee except where UPS was solely negligent. Pridgen moved for summary judgment alleging any liability incurred by UPS would be due to its sole negligence. The trial court granted Pridgen’s motion and dismissed Pridgen from the suit. UPS filed this appeal from that order. Later UPS “settled and compromised” with Beard, and an order was entered dismissing Beard’s complaint with prejudice.

Rule 54(b) requires the order to state that it is a final judgment and there is no just reason for delay. See Arkhola Sand & Gravel Co. v. Hutchinson, supra. The order granting summary judgment did not meet these requirements.

Appeal dismissed.

Holt, C.J., not participating.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I respectfully disagree with the majority. The only reason an order of dismissal as to one of several defendants is not ordinarily appealable under ARCP Rule 54(b) is because other defendants remain and the litigation is not disposed of and piecemeal appeals would result. Tulio v. Arkansas Blue Cross & Blue Shield, 283 Ark. 278, 675 S.W.2d 369 (1984).

Pridgen Security, Inc. has been dismissed from the action under ARCP Rule 12(b)(6) and Wanda Sue Beard has been dismissed by virtue of a settlement. Thus, if United Parcel Service, Inc., cannot appeal from the order of dismissal as to Pridgen Security this litigation has ended.

I suppose it can be reasoned that since the dismissal of Pridgen Security was without prejudice, Ratcliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984), United Parcel Service can bring a new action under the indemnity agreement against Pridgen Security. However, United Parcel’s third-party complaint against Pridgen was allowed in this case under ARCP Rule 14(a), one of the purposes of which is to avoid a multiplicity of suits by settling all controversies in one proceeding. Aclin Ford Co. v. Fiat Motors, 275 Ark. 445, 631 S.W.2d 283 (1982). In the context of this case the dismissal of the appeal seems to me to defeat the purpose of both rules. I would consider the appeal on its merits.


author: John I. Purtle, Justice.

text:
    Donald FORE v. CIRCUIT COURT OF IZARD COUNTY
    87-2
    727 S.W.2d 840
    Supreme Court of Arkansas
    Opinion delivered April 20, 1987

      David Hodges and Lewis Jones, for petitioner.

      Bill W. Bristow, P.A., for respondent Peggy Carpenter, Administratrix of the Estate of Larry Preston Carpenter, deceased.

      Tom Allen, for respondent Bobby Gene Dickerson and June Dickerson.

      Gardere & Wynne and Penix Law Firm, for respondents Atlas Powder Co. and Deupree Distributing Co.
   John I. Purtle, Justice.

This case concerns tort claims arising out of an on-the-job accident that resulted in the death of one employee and the injury of another. Both claims have been accepted by the employer and its insurance carrier as compensable injuries. The plaintiffs’ (respondents’) complaints filed against the petitioner, who was the supervisor of the work being done at the time of the accident, allege that the supervisor was negligent in keying a microphone, causing dynamite to explode. This explosion resulted in the injuries complained of by the respondents.

Depositions taken before the hearing revealed that the petitioner was the foreman of the injured employees at the time of the blast. The petitioner filed a motion to dismiss and a motion for summary judgment, alleging immunity from suit based upon the exclusivity of the Workers’ Compensation Act. The trial court denied both motions. The petitioner then filed a petition for a writ of prohibition in this Court. The arguments for the issuance of this writ are that the petitioner is protected by the Workers’ Compensation Act and that there is no adequate remedy at law. Under the facts and circumstances of this case, we agree and issue the writ.

The facts of the case are uncomplicated and undisputed for the most part. Donald Fore (the petitioner) was the supervisor of Larry Carpenter (the decedent) and Bobby Dickerson (the injured). All three men were employees of Drake’s Backhoe Work, Inc. The death and injuries complained of arose out of and in the course of the employees’ employment.

We first consider the threshold question of whether a writ of prohibition is the proper and correct remedy in this case/ The respondents correctly quote our holding in Farm Bureau Mutual Insurance Company of Arkansas v. Southall, 281 Ark. 141, 661 S.W.2d 283 (1983), which states: “a petition for a writ of prohibition is not the proper remedy for failure of the trial court to grant a motion to dismiss.” We reaffirm this statement; however, for reasons stated herein, we hold that the present case is an exception to the rule.

Prohibition is an extraordinary remedy and will not be granted unless the lower court clearly lacks jurisdiction or there is no adequate remedy at law. Arkansas Nursing Home, Inc. v. Rogers, 279 Ark. 433, 652 S.W.2d 15 (1983). The writ of prohibition has its genesis in the Ark. Const, of 1874, art. 4, § 7, which establishes the powers of the Arkansas Supreme Court and states in part:

[I]n aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and, other remedial writs, and to hear and determine the same. Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs.

We have frequently stated that prohibition is a proper remedy to prevent a lower court from exceeding its jurisdiction. An examination of our cases reveals that we have not limited the term “jurisdiction” to only subject matter considerations; rather, we have used the term “jurisdiction” in a broad sense. We have issued writs of prohibition to prevent a court from doing an act clearly contrary to the undisputed facts, in excess of authority, or where the writ is clearly warranted. For example, in Norton v. Hutchins, 196 Ark. 856, 120 S.W.2d 358 (1938), this Court held that a writ of prohibition lies where an inferior court is proceeding in a matter beyond its jurisdiction. In Norton the petitioner sought a writ of prohibition to prohibit a chancellor from issuing a restraining order against her. The underlying action was against the petitioner’s former husband to enforce a property settlement agreement. The petitioner obtained a temporary prohibition order from Associate Justice Baker and the full court later issued a permanent writ. The subject matter of the Norton case was clearly within chancery subject matter jurisdiction. However, the trial court was about to make an order which was not proper under the law. This same rationale applies to many of our cases concerning prohibition.

We issued a writ of prohibition in Tucker Enterprises, Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983). There the question presented was one of venue, not subject matter jurisdiction. In Goodall v. Williams, 271 Ark. 354, 609 S.W.2d 25 (1980), we granted a writ prohibiting the circuit court from taking evidence de novo, in an appeal from a decision of the ABC. There we stated:

A writ of prohibition is, of course, appropriate to relieve one from the onerous burden of litigation when the trial court is attempting to act wholly without jurisdiction or is threatening or about to act in excess of its jurisdiction.

In Goodall there was no question of subject matter jurisdiction; it was simply the manner in which the court intended to proceed on appeal from the decision of an administrative agency.

We also issued a writ of prohibition in Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981). There we stated:

Ordinarily we would not issue a writ of prohibition in such a case. Such a writ is discretionary and is most often used when the trial court has no jurisdiction, has clearly exceeded its authority, or there are no disputed facts and the writ is clearly warranted.

We used the same language in Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977). Further citations are unnecessary to establish that we have used the term “lack of jurisdiction” in a manner so as to allow the issuance of the writ even when subject matter is properly in the lower court if the facts are undisputed and the writ is clearly warranted.

The respondents base their resistance to this petition on the allegation that the petitioner was responsible for his individual act of negligence and that such negligent act was unrelated to the employment relationship, thereby rendering him a third party tortfeasor and liable for his individual act of negligence. The trial court agreed with respondents’ theory, subject to proof of the allegations.

The petitioner relies upon Ark. Stat. Ann. § 81-1304 (Supp. 1985) as a defense to personal liability. This statute is part of the Workers’ Compensation Act and in pertinent part states:

The rights and remedies herein granted to an employee subject to the provisions of this Act [§§ 81-1301—81-1349], on account of injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next [of] kin, or anyone otherwise entitled to recover damages from such employer, or any principal, officer, director, stockholder, or partner acting in their capacity as an employer, on account of such injury or death, and the negligent acts of a co-employee shall not be imputed to the employer.

The respondents rely upon another part of the Act, Ark. Stat. Ann. § 81-1340(a)(l) (Repl. 1976), which states in part:

The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of an employee, or his dependents, to make claim or maintain an action in court against any third party for such injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in such action.

This Court has held many times that an employer is immune from liability for damages in a tort action brought by an injured employee. See Brown v. Patterson Construction Co., 235 Ark. 433, 361 S.W.2d 13 (1962). There are a few narrow exceptions to this general rule. Liability on the basis of a wilful and malicious act by an employer’s supervisor will not render the employer liable to the employee. We have also stated that if the acts of the employer are wilful and intentional, the employee has the right to elect his remedy. Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1983). In the cases of Lewis v. Industrial Heating and Plumbing, 290 Ark. 291, 718 S.W.2d 941 (1986) and Simmons First National Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985), we held that immunity from personal liability would be extended to supervisors acting on behalf of their employer. In the present case there is no allegation that the act of the supervisor was either wilful or intentional. Therefore, the petitioner was acting as the alter ego of the employer and was acting in conformity with the duties owed to his employer.

In Simmons and Lewis we addressed the immunity of employers’ supervisors with respect to the failure to furnish a safe work place. These cases were appealed from the trial courts’ granting of summary relief. However, based upon the undisputed facts of the present case, it is inescapable that we would have affirmed the trial court if summary relief had been granted in favor of the petitioner. Also, it is equally clear that if the case were here on appeal from a judgment in favor of the employees or their dependents, we would be compelled to reverse and dismiss.

Although failure to grant a motion for summary judgment is not generally an appealable order, we held in Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987), that the defense of qualified immunity presents an exception to this rule. The present defense is based upon a claim of statutory immunity. A petition for a writ of prohibition, under the facts of this case, occupies the office of an appeal from a refusal to grant a summary judgment. The denial of the petitioner’s motion for summary judgment in this case, like in Robinson, destroyed the immunity defense claim. Had it been granted, it would have discontinued the action. The undisputed facts in this case are that the petitioner was acting within the scope of his supervisory duties during the course of his employment. Therefore Simmons and Lewis are controlling.

Under the undisputed facts of this case, it is certain that we would uphold a verdict in favor of the petitioner because the Workers’ Compensation Act is the exclusive remedy available to respondents. It would no doubt be a laborious and expensive process to allow this case to proceed to trial against Fore. A trial would be a futile gesture. The writ is clearly warranted when the result of the trial, under any factual situation alleged or any reasonable inferences deducible therefrom, is a foregone conclusion. Therefore, to prevent untold time and expense, as well as unnecessary grief to the parties, we hold that the writ should be granted.

Writ granted.

Dudley, J., concurs.

Newbern, J., not participating.


text:
    Roy GRAY v. Kenneth E. SUGGS
    86-244
    728 S.W.2d 148
    Supreme Court of Arkansas
    Opinion delivered April 20, 1987

      Morgan E. Welch, P.A., for appellant.

      Wright, Lindsey & Jennings, by: Roger A. Glasgow, for appellee.
   John I. Purtle, Justice.

The trial court granted summary judgment in favor of the appellee on the ground that there was no genuine issue as to any material fact. The only issue on appeal is whether the trial court erred in granting summary judgment. We hold that the trial court correctly dismissed the complaint.

The appellant, Roy Gray, brought an action for loss of parental consortium on behalf of his two minor children. Mattie Jones, the mother of the children, had been involved in a one-car accident. She was a passenger in the car that was driven by Leslie M. Murphy (who is now deceased as a result of causes that are unrelated to the accident). Mattie Jones was rendered a quadriplegic from the injuries sustained in the accident. Upon settling her damage claim with the driver’s insurance carrier, she executed a release. The release relieved the potential defendant from liability for damages to the appellant; however, it did not release Murphy, or his carrier, from liability to anyone other than Mattie Jones.

At all times prior to the accident, Mattie Jones had been the sole supporting parent of her two children. After the accident the father of the two children was granted guardianship and subsequently filed suit on behalf of his children. A special administrator was appointed to represent the estate of Murphy, the deceased.

During the pendency of this action, this Court rendered the opinion of Lewis v. Roland, 287 Ark. 474, 701 S.W.2d 122 (1985). We hold that the Lewis case is controlling in the present situation. We reaffirm our reasoning in Lewis that to recognize an independent claim on behalf of the minor children would open the floodgates of litigation.

Apparently the mother of the children gave a valid release of liability to the tortfeasor and his insurance carrier. The release was for any, and all, claims which she had, or might have, arising out of the accident. In reaching our decision, no reliance has been placed upon this release. The sole question presented and decided here is whether we should recognize a new cause of action for loss of parental consortium by dependent, minor children of an injured parent. We have conscientiously considered this matter and we agree with the conclusion reached in Lewis that the creation of such a cause of action is not properly a function of the judiciary; rather, it is a matter for the legislature.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Billy WARD v. FIRST NATIONAL BANK OF SEARCY, ARKANSAS
    86-240
    728 S.W.2d 149
    Supreme Court of Arkansas
    Opinion delivered April 20, 1987

      J.T. Skinner, for appellant.

      Lightle, Beebe, Raney & Bell, for appellee.
   Robert H. Dudley, Justice.

On March 5, 1984, Garold Bennett executed a promissory note and security agreement in favor of appellee First National Bank of Searcy. The security agreement listed as collateral all equipment of the debtor presently owned or after acquired. On that same date, First National filed a financing statement which listed the collateral as follows:

1971 Chev. 3-ton truck s/n EC631 PI05202
1952 American 32’ Tandem Trailer s/n 5927
1968 JD 4020 Tractor s/n T213P284845R
1976 Modenway 8’ Dirt Blade s/n 48617
1974 Midland 19’ Disc 15036374
1973 Vibra Shank 18’ Barker Shank
1 JD 6 Row Cultivator
1 JD 6 Row Planter
1 4 Wheel Trailer w/1000 gal. diesel tank 1977
JD 5 Bottom Breaker
JD 20’ Harrow
28’ 3 Axle Gooseneck Equipment Trailer
1 20’ WA Do-All
1 JD 3 Bottom Breaker
JD 4520 Tractor w/front end loader s/n 004291R
1 Midland 15’ Disc
1 Bushhog
1 300 gal. Spray Tank
1 250 gal. Tank and 4 Wheel Trailer.

The financing statement did not mention after acquired property. On June 12, 1984, another security agreement on additional equipment was executed, and another financing statement filed with a similar description of collateral. This second financing statement, like the first one, did not mention after acquired property.

On July 2, 1984, appellant Billy Ward sold the combine to Bennett, and at that time, executed a document which purported to retain title to the combine in Ward. The agreement listed Ward as seller, and Garold Bennett was listed as buyer. On October 12, 1984, Ward filed the agreement as a financing statement. The combine was destroyed by fire, and $ 10,000 in insurance proceeds became available to replace it. First National Bank of Searcy filed suit to collect on the promissory note and foreclose on the security, and through an amended complaint, sought to collect the insurance proceeds. Ward, in turn, contends his interest is superior to the insurance proceeds. The Chancellor found that appellee First National’s interest was prior to any the appellant might have, and granted judgment for the bank. We reverse.

The Chancellor determined that First National Bank had perfected its security interest in after acquired property through the financing statements. While the trial court was correct in determining that a financing statement does not necessarily have to include a specific reference to after acquired property to perfect such an interest, we hold that the language describing the collateral must be at least broad enough to encompass the after acquired property. In Security Tire and Rubber Co., Inc. v. Hlass, 246 Ark. 1113, 441 S.W.2d 91 (1969), we held that “a description is sufficient which will enable third persons, aided by inquiries which the instrument itself suggests, to identify the property.” Hlass, 246 Ark. at 1117, 441 S.W.2d at 94. Here the instrument does not suggest any inquiry that would disclose a security interest in after acquired property. Nothing in the description of collateral suggests that other than specific individual items are to be included. There is nothing in the financing statements which “should reasonably notify third parties that after acquired property is part of the subject matter of the financing statement.” United States v. Riceland Foods, Inc., 504 F. Supp. 1258, 1262 (E.D. Ark. 1981). Accordingly, First National’s security interest in after acquired property is unperfected.

The appellant has argued that the appellee had no perfected security interest. That issue would be before us if we were faced with a question of priority between perfected security interests. However, because we have decided the appellee has no perfected security in the combine, we need not decide an issue of priority, and thus, we do not address whether the appellant’s security interest can be considered to be perfected under the Uniform Commercial Code. Accordingly, we reverse the decision of the trial court and remand for entry of an order consistent with this opinion.

Hickman, J., not participating.


author: Steele Hays, Justice.

text:
    Charles PHILYAW v. STATE OF Arkansas
    CR 86-181
    728 S.W.2d 150
    Supreme Court of Arkansas
    Opinion delivered April 20, 1987

      Marc Aaron Kline, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Charles Philyaw was convicted in 1981 of the aggravated robbery of a Texarkana liquor store. A sentence of life imprisonment and a $12,000 fine were imposed. Philyaw filed a timely notice of appeal but no further action was taken toward an appeal.

On September 8,1986, the United States District Court for the Western District of Arkansas ordered the State of Arkansas by its Attorney General to either request this court to grant Charles Philyaw a belated appeal or to try him a second time on the charge of aggravated robbery. The state chose to request a belated appeal, which we granted and have now considered. Two points for reversal are argued—there was insufficient evidence to support the conviction and defense counsel failed to provide effective assistance against all of the charges. We find the arguments untenable.

Sufficiency of the Evidence

Charles Philyaw’s involvement in the crime was proved by a combination of direct and circumstantial evidence. Officer Charles Lambert testified that at around 9:30 on the morning of May 11, 1981, he, Lt. Duvall and Sgt. R.D. Branch of the Arkansas State Police drove past the Cabana Liquor Store in Texarkana. They noticed an automobile parked some distance away and watched as a man later identified as Fabian Costillo got out of the passenger side and started toward the liquor store. An unidentified man remained behind the wheel of the automobile. One of the officers remarked that the man approaching the liquor store appeared capable of robbing it. Five or ten minutes later they learned the store had just been robbed.

Ms. Mary Nell Clingan testified that she opened the Cabana at 9 o’clock. At about 9:45 a man entered the store, pointed a gun at her and asked for “Friday and Saturday night’s money.” She told him she had already been to the bank and he ordered her to open the cash register, which she did, handing him the contents, about $280. He said, “give me the money under the counter.” Ms. Clingan gave him a bank bag containing rolled coins. He directed her to the back of the store and left the building. Ms. Clingan called the police promptly. She did not see the man leave. At trial she identified Fabian Costillo as the man who robbed her.

Ms. Clingan also identified Charles Philyaw as the husband of Joyce Philyaw, who had worked for Ms. Clingan at the Cabana. While Ms. Philyaw worked there it was the custom to open earlier and to deposit Friday and Saturday’s receipts at about 1:00 p.m. on Monday. She also said cash was kept in a bank bag under the counter and that Charles Philyaw was familiar with these customs. She admitted not having seen Charles Philyaw at the store at the time of the robbery.

Shortly after 10 o’clock Officer Alen Craig received a radio report of the robbery as he was patrolling on Interstate 30 near Hope. He observed a vehicle occupied by Philyaw and Costillo and followed it off the interstate at Hope into a service station. The officer got out of his car and approached the passenger side of the vehicle, noting that the passenger fit the description of the robbery suspect. As the officer began to search Costillo, Philyaw went to the driver’s side of the car, got a pistol and pointed it at Craig as Costillo and Craig struggled. The officer managed to draw his own weapon and fire five times, striking Philyaw twice. Craig identified the weapon used by Charles Philyaw, and though he could not say with certainty that Philyaw had fired the pistol, an empty cartridge was found in the chamber. Other evidence linked Philyaw to the robbery, including the bank bag and cash and ownership of the automobile. The defense rested without offering any evidence. We regard the proof as fully sufficient to sustain a verdict of guilt.

We have examined other objections made during the trial pursuant to Rule 11(f), Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1977), and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Ineffective Assistance of Counsel

Ordinarily we would not address Rule 37 issues in a direct appeal from a judgment of conviction. Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983). However, we make exception in this case because this federally ordered belated appeal comes after attempted post-conviction remedies were begun by Philyaw in 1984, when he filed a 39 page Rule 37 petition in the trial court. The trial court denied the petition by order dated July 19, 1985.

We will not list all of appellant’s 11 points for reversal for alleged ineffective assistance of counsel. They are too generalized and non-specific to be treated (“No objections were made to the misstatement of the burdens of proof by the appellee”—“The redirect examination of Ms. Clingan was improper, as it was outside the scope of cross-examination and even the original direct examination, yet no objection was made,”—“No objection was made regarding Officer Lambert’s testimony of Sgt. Branch’s statement and speculation”—“No objection was made to illiciting (sic) testimony regarding the ‘shoot-out.’ This would be improper as being irrelevant to proving the elements of the robbery”). The arguments are facially without merit. For example, appellant argues that counsel was ineffective because he “passively accepted” the trial judge’s denial of motions for a directed verdict based on insufficiency of the evidence. But we have held that a failure to move for a directed verdict is not cognizable under Rule 37. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984).

Counsel for the defendant is presumed to be effective, and when a convicted defendant complains of ineffective assistance of counsel he must show that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s unprofessional errors the result of the trial would probably have been different. Strickland v. Washington, 466 U.S. 668 (1984); Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986). Appellant’s allegations of ineffective assistance do not meet either requirement.

The judgment of conviction and the order denying Rule 37 relief are AFFIRMED.