author: David Newbern, Justice.

text:
    Marvin V. PEARROW and Joann Pearrow, Husband and Wife v. Irene FEAGIN, Individually and as Administratrix of the Estate of Lester H. Feagin
    89-124
    778 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989
    [Rehearing denied December 4, 1989.]

      Murphy, Post, Thompson, Arnold and Skinner, by: J.T. Skinner and Blair Arnold, for appellants.

      Jerry Cavaneau, for appellee.

      Hickman, J., not participating.

   David Newbern, Justice.

The appellants, Marvin V. and Joann Pearrow, appeal from a judgment foreclosing a mortgage in favor of Lester H. or Irene Feagin. The action was brought by the appellee, Irene Feagin, on behalf of herself and the estate of Lester H. Feagin, her deceased husband. The Pearrows contend the chancellor erred with respect to several evidentiary rulings and in striking their counterclaim for usury as well as in finding they did not sustain the burden of proving their defense of payment. We affirm because the arguments on the evidentiary issues made on appeal were not made, or are different from the ones made, in the trial court, and because the chancellor did not clearly err in concluding the Pearrows’ proof failed with respect to payment and usury.

The mortgage and a note for $14,700 at 10% interest per annum were executed by the Pearrows on June 1,1983. Payment was due June 1, 1984. Lester Feagin died April 24, 1985. His daughter, Linda Brimer, testified that she found the note and mortgage shortly thereafter m a file among Mr. Feagin’s papers. There were other notes and mortgages in the file. Some of them contained payment notations, but none of them were marked “paid in full.” There were no payment notations on the note and mortgage being considered in this case.

Ms. Brimer did not address the Pearrows personally but “had someone contact them” in 1987, some two and a half years after payment was due. She filed the mortgage for record on November 2, 1987. Marvin Pearrow’s son, Joe Pearrow, visited Mrs. Brimer and told her Marvin Pearrow had paid the debt. He showed her three checks and notations made on a separate paper as evidence of payment. She was not convinced. Joe Pearrow retained the original documents he had shown Ms. Brimer. She made and kept a copy of the documents on one photocopy page which became plaintiffs exhibit 3. The exhibit shows that two of the checks, both dated December 12, 1983, in amounts of $16,604.80 and $3,220.86, were signed by Marvin V. Pearrow, but no payee was stated. The third check was signed by Joe Pearrow, naming Lester Feagin as payee, in the amount of $5,000.

At the trial, Marvin Pearrow presented an entirely different account as to how the debt was paid. He said it was paid by the proceeds of two checks, presented as exhibits, made out to “cash,” both dated January 10, 1984. Both checks contained the word “fur” on the memo line. Marvin Pearrow and his sons are in the fur business. The reverse sides of the checks show they were negotiated, without endorsement, by the bank on which they were drawn on the date they were made.

Marvin Pearrow testified that he and Lester Feagin had had many business dealings over a 30-year period. The $14,700 obligation was a consolidation of the amount due on an earlier note, interest due on yet another debt on which Mr. Feagin had charged 15 % interest, which would have been in excess of the legal limit, and some cash received by Mr. Pearrow in connection with a land deal which had fallen through. He testified he paid the obligation with the proceeds of the two “cash” checks in the presence of two of his sons who were his business partners.

Joe Pearrow testified he cashed the checks at the bank and the money was given to Lester Feagin. Another son, Vick Pearrow, testified he was present on January 10,1984, when the payment was made and that his father did not get a receipt. In response to cross examination about his visit to Ms. Brimer and the other evidence of payment he had presented to her, Joe said that had to do with a personal debt to Mr. Feagin which the Feagins had also tried to collect and nothing to do with the note and mortgage.

Other witnesses testified about having borrowed money on an informal basis from Lester Feagin. They testified they trusted Mr. Feagin and did not require receipts for payments.

1. The evidence rulings

In view of the evidence as to the informal manner in which Mr. Feagin did business, the Pearrows contend it was essential they be able to show why their note and mortgage were retained by Mr. Feagin even after the alleged date of payment. When Marvin Pearrow was asked why Mr. Feagin retained the note and mortgage, he began to say what Mr. Feagin had told him. A hearsay objection was sustained. Mr. Pearrow’s testimony was then proffered to the effect that Mr. Feagin had told him he needed the documents for an IRS audit.

When the chancellor made his ruling excluding the decedent’s testimony, the ruling was challenged on the basis of A.R.E. 804(b)(5). The argument on appeal is that it was an admission by a party opponent and thus admissible pursuant to Rule 801(d)(2) or that it was a declaration against interest and thus admissible pursuant to Rule 804(b)(3). The chancellor thus had no opportunity to consider the arguments made here. This court will not permit arguments to be raised for the first time on appeal. National Lumber Co. v. Advance Development Corp., 293 Ark. 1, 732 S.W.2d 840 (1987); Wasp Oil, Inc. v. Arkansas Oil and Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983).

The court also sustained a hearsay objection to a question put to Marvin Pearrow on direct examination as to whether Lester Feagin wanted to “deal by check.” The ruling was not challenged, and no response was proffered.

In response to a question on direct examination, Vick Pearrow testified that when Marvin Pearrow gave Lester Feagin the money, Marvin Pearrow said, “We’re paid in full, Lester,” and Mr. Feagin said, “Yes, sir, we are.” Again a hearsay objection was sustained, and the ruling went unchallenged.

Another hearsay objection was sustained when the Pearrows presented the testimony of Carl Elliott. His proffered testimony was that Charles Pearrow, who was a son-in-law of Lester and Irene Feagin, and who, for a time, represented the Feagins’ interests in this matter, told Mr. Elliott it would be advisable for him not to testify. There was no discussion of the court’s ruling excluding the evidence, and thus no exception to the hearsay rule was presented as a basis for admitting the statement.

Unless a party has no opportunity to object to a ruling of the court, an objection must be made at the time of the ruling, and the objecting party must make known to the court the action desired and the grounds of the objection. That was the essence of § 21 of Act 555 of 1953 which did away with the need for “showing exceptions” to trial court rulings and which has been superseded by and repeated in Ark. R. Civ. P. 46. See Hammond v. Peden, 224 Ark. 1053, 278 S.W.2d 96 (1955), which applied the requirement to the failure to make an objection to a ruling excluding evidence, and Missouri Pacific Railroad Co. v. McDaniel, 252 Ark. 586, 483 S.W.2d 569 (1972), a similar holding, where we noted that Act 555 was taken from F.R.C.P. 46 which served as the model for our current rule.

All of the excluded statements clearly fell within the general purview of the hearsay rule. We hold that if the Pearrows took exception to the rulings of the court they should have stated the bases for their objections to the chancellor so that he could have had an opportunity to consider them rather than raise them for the first time on appeal.

2. Usury

The chancellor struck the Pearrows’ amended answer, which contained their usury counterclaim, on the ground that the Pearrows had obtained a continuance through a misrepresentation to the court about unavailability of a witness, and that the amended answer and counterclaim would not have been timely but for the continuance. The Pearrows argue here that the chancellor’s finding of misrepresentation was clearly erroneous because they had sought a continuance on the basis of unavailability of two witnesses. The argument is that the continuance was justified on the basis of the unavailability of at least the one witness with respect to whom the chancellor made no finding of misrepresentation.

The answer and counterclaim were not struck when the motion to strike was made or at the outset of the trial. Rather, the chancellor reserved ruling on the motion until the conclusion of the trial. In his order the chancellor stated that even if the counterclaim had been allowed, the proof was insufficient to sustain the allegation of usury. This alternative ruling is not challenged on appeal. We are given no basis for holding that it was clearly erroneous or clearly against the preponderance of the evidence.

3. Proof of payment

The Pearrows argue the chancellor’s finding that they failed to show payment was clearly erroneous. In his order, the chancellor stated:

The defense of payment is an affirmative defense and the burden is on Defendants to prove payment by a preponderance. After considering the evidence and the credibility of the witnesses, the Court is of the opinion that Defendants have not met their burden of proof.

Ark. R. Civ. P. 52(a) provides, in part: “Findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” It is apparent that the chancellor did not find the testimony in favor of the Pearrows to have been credible, and we have no reason to say his evaluation was clearly erroneous. Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W.2d 465 (1979); Massey v. Price, 252 Ark. 617, 480 S.W.2d 337 (1972).

Affirmed.

Hickman, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    John W. SELLERS v. STATE of Arkansas
    CR 89-84
    778 S.W.2d 603
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      Allen & O’Hern, by: Arthur L. Allen, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is the second appeal of John W. Sellers who has been twice convicted of capital murder and sentenced to life imprisonment without parole. Sellers was charged with capital felony murder with burglary as the underlying felony. At the earlier trial, assault and battery were the offenses the jury was allowed to consider as those Sellers intended to commit upon entry of the victim’s dwelling. We held it improper to have allowed the jury to consider burglary as the underlying felony with assault and battery as the purposes of the entry into the victim’s dwelling because the assault and battery were not separate from the murder, and thus the first conviction was reversed. Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988). Sellers contends our first reversal amounted to a finding of insufficient evidence and thus he has now been twice placed in jeopardy, citing Burks v. United States, 437 U.S. 1 (1978). We find a distinction between insufficiency of the evidence to prove the offense charged and insufficiency of the evidence the jury was allowed to consider, and thus we cannot agree with the argument. Neither can we agree with his contentions that the evidence was insufficient on retrial or that the court erred in allowing a witness who had asserted his fifth amendment right to be examined. We also find no error in the court’s refusal to find the capital murder statute unconstitutional or in the admission of the statement made by Sellers into evidence. The conviction is thus affirmed.

At the second trial, Sellers was again charged with murder committed in the course of burglary. Testimony showed that the body of William Byrd, an elderly man who lived alone and who was known to keep large sums of money, was found in his home by Preston Parker, the husband of Byrd’s niece. Parker testified that he touched Mr. Byrd’s leg but saw no signs of life in him. There was blood splattered in several rooms. Sellers paid a friend to take him to Oklahoma apparently shortly after the killing took place. The sheriff took custody of Sellers after he had been arrested in Las Vegas, Nevada, and Sellers made a statement.

In his statement, Sellers detailed the events surrounding the killing. He and two others had gone to Mr. Byrd’s home to rob him. Sellers was to strike Byrd in the face, and the others were to take the money. One of the three carried an axe handle. Sellers said he hit the victim with his hand, as planned, but then left when dogs began to bark. His accomplices then came back to the car where he was waiting. They had Mr. Byrd’s trousers and billfolds which contained money, several thousands of dollars, which was divided among the three of them. Sellers answered affirmatively when asked whether he and the others had patted the victim down searching for his money.

1. Sufficiency of the evidence

a. Mens rea

Sellers contends the evidence was insufficient to show that he intended to murder Byrd. Intent to kill is not an element of the offense charged. The relevant part of the statute pursuant to which Sellers was charged, Ark. Code Ann. § 5-10-101 (Supp. 1987), provides:

(a) A person commits capital murder if:

(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit. . . burglary, . . .and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; ....

Sellers admits he struck Mr. Byrd in the head, but he contends he did not strike the fatal blow. By his own admission Sellers assisted in the commission of the burglary. To be convicted of murder, it is not necessary that the accused be proven to have taken an active part in the killing as long as he assists in the commission of the underlying crime. White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989). See also Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983); Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979).

b. Corpus delicti

The state was obligated to prove beyond a reasonable doubt that Mr. Byrd was killed and that he was killed by someone other than himself. Hays v. State, 230 Ark. 731, 324 S.W.2d 520 (1959). We find the evidence given by Parker to the effect that Mr. Byrd showed no signs of life when he was found in his blood splattered home, coupled with the sheriffs testimony that, after having been summoned by Parker, he observed blood coming from Mr. Byrd’s ear and a gash on his forehead, along with Sellers’ statement that he knew one of his accomplices carried a homemade axe handle into Mr. Byrd’s dwelling when the burglary occurred, is sufficient to satisfy the requirement.

2. Double jeopardy

Sellers argues he was retried for an offense the prosecution failed to prove in the first trial and that his retrial violated the prohibition against double jeopardy found in the Fifth Amendment and discussed by the Supreme Court in Burks v. United States, supra.

In the Burks case it was held that a state may not retry one against whom it has failed to produce sufficient evidence for conviction. However, the Supreme Court clearly distinguished the case of insufficient evidence from a case in which there was only trial error. The difference was further elaborated in Montana v. Hall, 481 U.S. 400 (1987). The case before us was reversed because of trial error rather than insufficiency of the evidence.

The evidence in the first trial was virtually the same as in the second trial. The problem with the first conviction was that the court, at the request of the prosecution and for reasons explained in the first opinion of this court in this case, instructed the jury it could convict Sellers of murder with burglary as the underlying felony if it found he entered Byrd’s dwelling for the purpose of committing assault and battery. We held that, because the murder was the culmination of the assault and battery and could not be separated from it, a burglary, committed by entering for the purpose of committing assault and battery, could not be the underlying felony supporting a capital murder conviction.

In the second trial, the jury was instructed it could find Sellers guilty of capital murder if it found the killing occurred during a burglary consisting of unlawful entry of Mr. Byrd’s home for the purpose of committing theft. The instruction was proper.

We have no doubt the evidence was sufficient at the first trial to show Sellers unlawfully entered the dwelling with the purpose of committing theft, just as it was sufficient in the second trial. The difference is that the jury was allowed to consider it in the second trial, and thus the verdict this time was proper.

3. Witness and the Fifth Amendment

Donald McDougald, one of those Sellers said was with him on the night the crime was committed, was called by the prosecution as a witness. He took the stand and said he had not promised to testify. The prosecutor asked if he had accompanied the sheriff to a place where “an object” was found. At that point, McDougald said he would rather not testify, asserting his rights under the Fifth Amendment. The prosecutor then said: “You don’t remember — you don’t want to admit to whether you did that or not?” Defense counsel objected to the prosecution continuing to question after the right not to testify had been asserted, and a hearing was held away from the jury. The prosecutor stated he did not know whether McDougald would assert his privilege until McDougald took the stand.

McDougald was offered immunity, but he informed the court he would continue to decline to testify due to the “inmate code,” implying that he would be harmed by other inmates if he testified. The court declined to order McDougald to testify, but allowed McDougald to return to the stand to explain that his refusal was not because he had in any way been coerced by Sellers. The defense made no further objection to McDougald’s testimony upon his return to the witness stand.

. We find no prejudice occurred to Sellers from this episode. McDougald said nothing which had any bearing whatever on Sellers’ guilt or innocence. Even if an error was committed, and we find none, we would not reverse absent a showing that it somehow unfairly prejudiced the defendant. Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989); Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985).

4. Constitutionality of capital murder statute

Sellers argues that the capital murder statute is unconstitutional because it overlaps with the first degree murder statute in that one may be convicted of either crime if a killing occurs in the perpetration of a felony. We have previously rejected that argument. White v. State, supra; Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986).

5. Admissibility of Sellers’ statement

Sellers concedes that we addressed this argument in our earlier opinion and that it is thus precluded by the law of the case.

6. Other errors

The record has been reviewed in accordance with Arkansas Supreme Court and Court of Appeals Rule 11 (f), and we find no other error prejudicial to Sellers.

Affirmed.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Luther Edward SKEELS v. STATE of Arkansas
    CR 88-217A
    779 S.W.2d 146
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      James L. Sloan, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Luther Edward Skeels, contends the court erred in failing to set aside his guilty plea to the charge of first degree murder. The court denied Skeels’s petition which he had filed pursuant to Ark. R. Crim. P. 37. Skeels argues the lawyer who represented him in connection with his guilty plea rendered ineffective assistance. He also argues that he did not admit his guilt at the plea hearing and that at the Rule 37 hearing the trial court erred in ignoring evidence that he was framed by state officials and by giving too much credence to correspondence between Skeels and his lawyer in determining the lawyer’s effectiveness. For reasons we do not know, the lawyer who represented Skeels at the pleading stage did not testify at the Rule 37 hearing. We find none of the arguments convincing, and thus we affirm.

Skeels was charged with being an accomplice in the murder of Larry Lynn Buckelew and Edmond Callen who died after being shot by Ford E. Strafaci and Travis Smith. At the plea hearing, the state presented the testimony of Clay Holcomb, who was involved in an illegal drug manufacturing scheme with Skeels, Strafaci, Smith, and others. Holcomb testified that when Skeels learned that Buckelew and Callen were stealing chemicals from the operation he gave Strafaci a shotgun and told him to “use it” or “not come back.”

Strafaci also testified at the plea hearing, adding that Skeels instructed him on how to bury Buckelew and Callen and cover the bodies with lime to aid in decomposition. Smith testified that he participated in the killing because Skeels had threatened Smith’s family.

In response to the court’s question at the plea hearing as to why Skeels wanted to plead guilty, he responded that the state’s evidence was so overwhelming as compared with the evidence he might present that it would be better for him in the long run not to fight it. He said his decision would give him “a chance to live.”

1. Ineffective assistance of counsel

a. Sentence comparison

Citing Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983) and Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981), Skeels argues his counsel should have told him it would be highly unlikely he would receive the death penalty because Smith and Strafaci had already pleaded guilty to the murders and received life imprisonment sentences. In each of the cited cases we reduced the sentence of an accomplice to murder from death to life without parole after a comparison with the sentence given the principal perpetrator of the crime.

Although Skeels was charged as an accomplice, given the strong evidence at the plea hearing that Skeels was the instigator of the murders in this case, we cannot say we would have reduced a death sentence he might have received had he gone to trial for capital murder.

b. Failure to interview Smith and Strafaci

Skeels argues his counsel was ineffective because he failed to interview Smith and Strafaci who recanted their statements against him at the Rule 37 hearing. It is contended that, had Skeels’s counsel interviewed them he would have learned what they testified to later, i.e. that their testimony against Skeels was coerced.

For us to agree with Skeels’s argument, we would have to conclude that it was improper for his counsel to rely upon sworn statements made by Smith and Strafaci as well as the corroborating testimony given by Holcomb at the plea hearing. While we may agree it would have been prudent for Skeels’s counsel to have interviewed these witnesses, we cannot hold the failure to do so rendered his assistance to Skeels ineffective. Nothing presented makes us think these witnesses would have testified differently or would have recanted their sworn previous statements on the basis of having been interviewed by Skeels’s counsel. No suggestion is made as to how their motivation might have been changed by such an interview. If they had told Skeels’s counsel their statements were untrue, we are not told how he could have used that information to Skeels’s advantage.

Counsel is presumed to be competent and effective. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982). He had a duty to investigate or to make a reasonable decision that particular investigations were unnecessary. Strickland v. Washington, 466 U.S. 668 (1984); Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). Under the circumstances, we cannot say his decision not to interview Smith and Strafaci was unreasonable. We are not convinced it would have made a difference in the advice counsel might have given Skeels.

c. Advice on parole eligibility

At the Rule 37 hearing, Skeels testified his counsel told him he would be eligible for parole after serving a term of years. Skeels’s sister, Vivian Williams, testified that Skeels’s counsel told her Skeels could plead guilty and get a sentence of ten to fifteen years and go before the parole board after seven years imprisonment. She said she relayed that information to Skeels, although she also said she begged him not to plead guilty. As Skeels’s former counsel did not testify, he refers to this testimony as unrebutted, thus suggesting that the court was required to believe it.

The judge at a Rule 37 hearing is not required to believe the testimony of any witness, especially that of the accused. Owens v. State, 296 Ark. 322, 756 S.W.2d 899 (1988); Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986). In addition, the record shows conclusively that the trial court explained to Skeels the range of sentences he could receive for first degree murder as ten to forty years or life. Douthitt v. State, 283 Ark. 177, 671 S.W.2d 746 (1984).

2. Failure to admit guilt

At the guilty plea hearing, Skeels did not say directly that he had done the acts charged. He said, rather, that he felt he could not successfully refute the state’s evidence against him. He argues our decision in Crockett v. State, 282 Ark. 582, 699 S.W.2d 896 (1984), requires that he have given an “unqualified admission” of guilt in order for his plea to have been valid.

Presumably the language in the Crockett case to which Skeels refers is our statement that, “[a] defendant whose conviction is based upon a plea of guilty normally will have difficulty in proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged.” That statement is a far cry from saying that a plea of guilty is insufficient because of failure to admit guilt in terms of the facts alleged.

In McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986), we suggested the better course is to inquire of the accused if he is pleading guilty because he is guilty, but there the question was whether there was a factual basis for the plea of guilty. Here, there is no doubt whatever about the factual basis.

3. The conspiracy against Skeels

The argument here is that the court ignored evidence that agents of the state framed Skeels. He cited the testimony of Leona Bartlett, who was Smith’s mother and Skeels’s ex-wife, who said she was urged by officers to get her son to involve Skeels. She testified she tried to do it but did not succeed.

The argument goes only to the sufficiency of the evidence showing a factual basis for the plea. That sort of direct attack on the court’s judgment may not be made in a Rule 37 proceeding. McCrosky v. State, 278 Ark. 156, 644 S.W.2d 271 (1983).

4. Letters from counsel

The contention here is that letters from Skeels’s counsel and a reply letter were prepared to gloss over counsel’s deficiencies in representing Skeels. The letter from counsel referred to an “extensive investigation” of the case.

No authority is cited on this point, and we do not find the argument convincing. It is no more than a suggestion that the court improperly evaluated the evidence presented. It is the duty of the court to determine credibility of evidence presented at a Rule 37 hearing. Stephens v. State, 293 Ark. 231, 737 S.W.2d 147 (1987); McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987).

Affirmed.

Purtle, J., dissenting.

John I. Purtle, Justice,

dissenting. The allegation by the petitioner that his co-defendants were not interviewed is uncontradicted indeed, when the co-defendants testified at the Rule 37 hearing they recanted their former statements to the authorities that the petitioner was the moving force in the murders.

Further, the petitioner’s allegation that defense counsel told him he would be eligible for parole in a certain number of years was never denied. In fact, defense counsel apparently chose to forego testifying in the matter. It seems to me that the appellant has made a prima facie showing of ineffective assistance of counsel which the state has not rebutted.


author: David Newbern, Justice. Steele Hays, Justice,

text:
    Travis SMITH v. STATE of Arkansas
    CR 88-217B
    778 S.W.2d 924
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      Jerry M. Rephan, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This appeal is from denial of relief sought pursuant to Ark. R. Crim. P. 37. The appellant, Travis Smith, pleaded guilty to first degree murder and illegally manufacturing a controlled substance. He admitted having killed two people who were involved with him in the illegal drug manufacturing operation. He was sentenced to life imprisonment on the murder charge and ten years imprisonment on the drug charge to run concurrently with the life sentence.

Ford Strafaci and Luther Edward Skeels also pleaded guilty to having participated in the murders. Smith raises three points of appeal. While we must reverse and remand to the trial court because of failure to enter written findings with respect to Smith’s allegation that his counsel was ineffective, we find no merit in the other points raised.

1. The guilty plea

a. Reference to parole

At Smith’s plea hearing, the court explained that the sentence for first degree murder could be life imprisonment. Smith argues, however, that not only did the court fail to inform him that a life sentence carried no possibility of parole, but the court’s remarks implied the possibility of parole. He contends the standards set by the Supreme Court for waiver of the constitutional right to a jury trial in Boykin v. Alabama, 395 U.S. 238 (1969), and Brady v. U.S., 397 U.S. 742 (1970), were thus not met. While those cases point up the gravity of the right involved and seek to assure that it is not given up without awareness of the consequences, they do not hold that the court must explain the law of parole. In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court expressly refused to go that far.

The argument here, however, is that the court’s remarks affirmatively led Smith to conclude he would be eligible for parole. Some of the court’s statements were:

The Court: You understand that if you go to the penitentiary, when a person goes that the Courts here and the lawyers cannot tell you when parole time, if any, is. That is between you and the Department of Correction.
Mr. Smith: (Nodding).
The Court: They have their policies and I am not competent to tell you about parole.
Mr. Smith: Yes Sir.
The Court: Now, there is such a thing as parole, there’s good time and all of that but it’s not something I know a lot about or that I’m able to advise you and when we talk about a term in the penitentiary, that’s all you hear from this Court. If you get anything less than that, that’s between you and the Department of Correction. . . .

The court’s statements were disclaimers. Even if they could be taken as having held out the bare possibility of parole, they would not necessarily have been misleading. While it is true that a sentence to life imprisonment imposed after April 1,1983, carries no possibility of parole, Ark. Code Ann. § 16-93-607(c)(1) (1987), this court has recognized that such sentences are often commuted, thus making parole a possibility. Vagi v. State, 296 Ark. 377, 767 S.W.2d 533 (1988).

b. Consecutive sentencing

Smith also contends the court erred in not following Ark. R. Crim. P. 24.4(c) which requires explanation of the maximum sentence possible, including consecutive sentencing. We find no prejudice resulted from the failure to mention consecutive sentences because the sentences were pronounced to be served concurrently. We do not reverse in the absence of a showing of prejudice. Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989); Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985).

c. Coercion

Smith concedes he stated at the time his guilty plea was entered that the plea was voluntary. He now argues that the record shows his plea was the result of his fear of Skeels, the police, and the death penalty. He points to nothing of record, however, which would show that his fear of Skeels influenced him to plead guilty. Nor does he refer to any police action which induced his plea. Fear of the death penalty is a legitimate concern of one charged with capital murder, and a sound reason for choosing to plead guilty to a lesser offense. The threat of the death penalty is not a basis for holding a guilty plea to have been coerced and thus invalid. See Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981).

2. Ineffective assistance, failure to make findings

Smith argued that his appointed counsel, Phillip Clay, was ineffective because he visited Smith only a few times during his seven months of confinement prior to pleading guilty and did not explain to Smith the “difference” between a sentence of life imprisonment and one to life without parole.

Clay testified at the Rule 37 hearing that he did not learn of Smith’s decision to plead guilty until just before the hearing. He said he advised Smith to plead not guilty, but he could not recall the conversation he and Smith had with respect to the effect of the life sentence which had been offered by the state. He recalled, and the record shows, he asked Smith at the plea hearing if he had in any way guaranteed Smith parole eligibility to which Smith replied he had not.

Smith testified with respect to his understanding, at the time he entered his plea, of the meaning a life sentence as follows:

Phillip Clay informed me that it was something to the effect of twenty-five (25) to thirty-five (35) years, the same as that, that I’d do, that I’d have to make seven. . .then go up before the Parole Board and they could deny me up to three years, a maximum of (5) years and then they would have to release me.

A trial court may conclude from the record that post-conviction relief sought pursuant to Rule 37 should be denied and that no hearing is necessary. Rule 37.3(a) requires written findings specifying the parts of the record which form the basis of the trial court’s decision. We have held we may make an exception to the written findings requirement in those cases where our own examination of the record demonstrates conclusively that the trial court was correct in denying relief. Kain v. State, 296 Ark. 123, 752 S.W.2d 265 (1988); Morrison v. State, 288 Ark. 636, 707 S.W.2d 323 (1986).

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

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

The only writing entered by the trial court in this case is the order denying relief' as follows:

The defendant, Travis Smith, was charged by Prosecuting Attorney’s Information in this Court of Manufacturing Methamphetamines on October 26, 1983 and in case number CR-83-49 with the offense of Capital Murder. On May 11, 1984, the defendant appeared and with his attorney, Philip Clay. The State moved to amend the Capital Murder charge to a reduced charge of First Degree Murder. Said Motion was granted. Further the state moved to amend the information in case number CR-83-47 to reflect the Manufacture of Phenolacetone instead of the Manufacture of Methamphetamine. Said Motion was granted. After the amendment of the information, on Case number CR-83-47, the defendant entered a plea of guilty. Further on the charge of First Degree Murder the defendant entered a plea of guilty. The defendant, at the conclusion of the hearing, was sentenced to the Arkansas Department of Correction in accordance with the State’s recommendation and the terms of the negotiated plea. The defendant has filed a Rule 37 petition alleging ineffective assistance of counsel that the prosecuting attorney and the Court had engaged in conduct contrary to Arkansas Law. The defendant’s Petition contained thirty-two separate paragraphs or allegations. On September 22, 1987, a hearing was held at which time witnesses testified with respect to the Rule 37 matter including the defendant, Travis Smith.
From an examination of the Petitioner’s Rule 37 Petition, the State’s Response, transcript of the arraignment, change of plea hearing and the testimony presented at the Rule 37 Petition hearing, the Court is of the opinion that said Petition for Rule 37 Relief is without merit and should be denied.
The court is of the opinion that at the time of the plea, the defendant knowingly and intelligently entered his plea and that the plea was in fact voluntary. There was sufficient factual basis for the Court to accept the plea and the Court so finds.

While we might say that the fact that the relief requested was denied by the trial court because his conclusion that the plea was entered “knowingly and intelligently” was a clear indication that the court disbelieved Smith’s version of the facts, such a holding would make a mockery of our rule requiring findings of fact. The court’s order is conclusory in nature. No fact findings are made with respect to the effectiveness of counsel. We, therefore, must remand the case either for entry of fact findings in accordance with Rule 37.3(c) or for any further proceedings consistent with this opinion which may be deemed necessary by the trial court.

Reversed and remanded.

Hickman, Hays, and Glaze, JJ., dissenting.

Steele Hays, Justice,

dissenting. The majority reverses and remands this case, not for any merit in appellant’s several allegations of error, but because it considers the order denying the Rule 37 petition to be insufficient in findings of fact.

Nothing is to be gained by remanding the case. We are not handicapped in the slightest in gauging the pros and cons of the appeal, to which the majority opinion bears witness. It is clear that appellant’s arguments are without substance. Nothing in the majority opinion suggests otherwise and the record itself amply demonstrates that appellant was entitled to no relief from his guilty plea.

The trial court granted a hearing on appellant’s petition, although the allegations of the petition are patently conclusory. A lengthy hearing was conducted which failed to produce any material basis for relief and at the end of the hearing the trial court recognized that findings were required and advised counsel that his written order would be forthcoming, as it was. The order is reported verbatim in the majority opinion and need not be repeated here. I suppose it could be argued that the order could have gone into greater detail, but given the vagueness of the petition and the generality of the testimony, I cannot agree that it is so deficient as to require reversal, nor has the appellant even attempted to show how greater specificity in the order might have borne on the result.

We have held that if the record conclusively shows that the petition is without merit we will affirm, irrespective of the trial court’s failure to make written findings. Kain v. State, 296 Ark. 123, 752 S.W.2d 265 (1988); Morrison v. State, 288 Ark. 954, 707 S.W.2d 323 (1986); Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). The majority opinion concedes that exception to the requirement of written findings, but limits the exception to those cases where there has been no hearing. It is true that language to that effect appears in Bumgardner v. State, 288 Ark. 315, 705 S.W.2d 10 (1986), but neither case relied on [ Williams v. State, 272 Ark. 98, 612 S. W.2d 115 (1981), State v. Maness, 264 Ark. 190, 569 S.W.2d 665 (1978)] supports such distinction. In Williams, we merely noted that we could not review the trial court on a lengthy record because there were no findings. In Maness we reversed the trial court because there was no record from which it could be determined whether the petition had merit.

The thrust of our cases, as I read them, is that with or without a hearing, if we are dependent on findings of fact to provide a meaningful review, then we will reverse if they are wanting. But if we can determine reliably without findings of fact that the petition lacks merit, we will affirm. That approach, I believe is sound and avoids requiring the trial court to reiterate in different language with respect to a record already before us why the petition had no merit. Where we can do that for ourselves, it seems a needless waste of judicial resources to insist that the trial Court do it first. It is notable that neither the majority opinion nor the appellant has pointed out any issue of fact or law which is rendered doubtful because of the trial court’s order. I would overrule Bumgardner v. State, and affirm.

Hickman, J., and Glaze, J., join.


text:
    Ford E. STRAFACI v. STATE of Arkansas
    CR 88-217C
    778 S.W.2d 602
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      David Goldman, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal from denial of a petition pursuant to Ark. R. Crim. P. 37 on the part of the appellant, Ford E. Strafaci, to set aside a plea of guilty entered in 1983 to a charge of first degree murder. The state concedes that the court’s actions in taking the plea did not comply with Ark. R. Crim. P. 24 which requires the court to establish that there is a factual basis for the plea. The issue has thus become whether the evidence taken at the Rule 37 hearing supplied the factual basis for the plea. We hold that it did, and thus the decision of the trial court is affirmed.

If evidence at a post-conviction hearing supplies the factual basis for a plea of guilty, the failure of the trial court to establish it at the plea hearing is not reversible error. Knee v. State, 297 Ark. 346, 760 S.W.2d 160 (1988); Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987). Strafaci argues no such factual basis was established because he testified at the Rule 37 hearing to facts which showed the killing was at least not deliberate and premeditated and at best done in self defense.

At the Rule 37 hearing, the state introduced an affadivit executed by Strafaci which included the following:

On August 22,1983, in Montgomery County, Arkansas, I shot Larry Lynn Buckelew and Edmond Callen with a shotgun that was given to me in Georgia by Luther Edward Skeels, also known as “Eddie” Skeels. Eddie Skeels knew what I was going to do with the shotgun when he gave it to me, and he aided me in planning how to shoot Larry Lynn Buckelew and Edmond Callen. After the shooting took place I and Travis Smith and Terry Miller buried their bodies, and I then threw the shotgun into Lake Hamilton near Hot Springs, Arkansas.

This affidavit, which was made by Strafaci under oath, was sufficient for the trial court to conclude there was a factual basis upon which a fact finder could have found Strafaci guilty of first degree murder, and thus it supplied a factual basis for the plea. Knee v. State, supra.

Affirmed.


author: Tom Glaze, Justice. David Newbern, Justice, John I. Purtle, Justice,

text:
    Bobby Gene HOLT v. STATE of Arkansas
    CR 89-140
    778 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      William J. Velek, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This appeal is from the appellant’s conviction of driving while intoxicated, fourth offense. Appellant received the minimum sentence provided by law. He raises six points for reversal in this appeal, but appellant insists in his brief and oral argument that his request is limited to reversing and dismissing the state’s case. If this court’s review should result in a reversal and remand of the case, appellant requests that we affirm rather than return the case for retrial. Appellant concedes, for these purposes, that the state possesses sufficient evidence to prove the DWI, fourth offense if the case is retried.

Obviously, appellant wishes to hedge or restrict his appeal to two possibilities: dismissing his conviction or alternatively retaining his minimum sentence previously imposed. We are unable to accommodate such a conditional appeal. As provided in A.R.Cr.P. Rule 36.25, a conviction shall be reversed and a new trial ordered where we find that the conviction is contrary to the Constitution, the laws of Arkansas or for any reason determine that the appellant did not have a fair trial. Where appropriate, we reverse the conviction and order the appellant discharged. Our review of the issues raised in this appeal reflect only one which has merit, and that issue, mentioned below, would require a retrial.

We are unaware of any rule or precedent that would permit this court to affirm a conviction when our review actually mandates a reversal and remand of the matter. To adopt such a rule, we believe, would be improper and an abdication of this court’s clear duty. In addition, we are convinced that if the court provided for such conditional or limited appeals, an abuse of the appellate process undoubtedly would result. In criminal cases, this would especially be true since the state rarely is the appellant and the defendant, who is convicted, would be placed in a position of appealing regardless of whether he or she had a meritorious

point for reversal since the defendant would have nothing to lose by doing so. In sum, because the appellant requests this court to affirm this case unless the court can say it can be dismissed, we will not address his arguments on appeal and must affirm the trial court.

While we are unable to reach the issues in this appeal on the conditions set by appellant, we are obliged to point out that the state in this matter has requested that we reconsider our decision in Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). The state also cites our recent holding in Prichard v. State, 300 Ark. 10, 775 S.W.2d 898 (1989), and suggests it conflicts with the holding in Peters. The state argues that, in view of these two decisions, there is a conflict between the manner in which prior convictions are handled in controlled substances and DWI cases. The narrow issue is whether the prior convictions in these type cases should be determined by the trial court or the jury. While we recognize the state raises a viable issue, we are unable to address it here because of the manner in which this case was presented and disposed of on appeal. Consequently, we must defer addressing and deciding this important issue to a future case when it can be fully presented and argued.

For the reasons given above, we affirm.

Newbern, J., concurs. Purtle, J., dissents.

David Newbern, Justice,

concurring. The result reached is correct. I write only to point out that I am willing to accommodate this sort of conditional appeal, and I disagree with the general statement that we cannot do so. As the court’s opinion points out, the appellant’s brief sought reversal only in the event it could be accompanied by dismissal of the case. To me it is as if the appellant had argued only the point which would require dismissal. As, in my view, he does not prevail on that point, affirmance is proper, and I see no need to make a general pronouncement about conditional appeals.

John I. Purtle, Justice,

dissenting. The unusual harshness of the majority opinion will not be realized for some time — perhaps years — unless this court recognizes its error sooner than I expect. The appellate courts in Arkansas seem to be steadily progressing toward a goal of making the practice of law more technical and treacherous. The cost of malpractice has already exceeded reasonable expectations and most likely will further increase as a result of this decision.

Everything in the abstracts and briefs in this case indicates that the appellant has argued the six points for reversal in the utmost good faith. However, during oral argument, under skilled questioning by members of this court, the appellant’s attorney frankly admitted that if the case were not reversed and dismissed, he hoped we would affirm. This same thought was contained in the brief. Since the appellant received the minimum sentence for a fourth DWI conviction, he did not want to chance a second trial. I see nothing wrong with such reasoning, either ethically or legally.

The majority opinion appears to be based upon only one of several arguments by the appellant. It seems to penalize the appellant and his counsel for remarks in the brief and responses to questions asked during oral argument. Perhaps the majority is attempting to hold that the case ought to be reversed; but instead, in order to teach this attorney and other lawyers a lesson, the appeal will be dismissed because counsel for the appellant guessed wrong on one of the many questions propounded in the heat of the battle and in his argument in his brief. He no doubt was unprepared for such unusual questioning and could not forsee the consequences of his candid response.

No conditional appeal was lodged in this case, and I see no reason why we should refuse to reach the merits of the arguments. The Attorney General evidently did not see any procedural defect in the appellant’s presentation because he met all six arguments directly and further sought to have us overrule a prior decision.

The fact that the state possesses evidence sufficient to obtain a conviction is not tantamount to a conviction. There is more to it than that. The presentation of the evidence at trial may not warrant a conviction. There must be a forum for the presentation of the state’s and the defendant’s evidence. Trial by jury is still an unalienable right of one accused of a crime. Appellate courts necessarily review trial proceedings — otherwise, what purpose do they serve? Criminal laws are not enacted to shield criminals; rather they are designed to safeguard the innocent. Therefore, in order to guarantee the protection of the innocent, we must follow due process of law. Were we to fail in this responsibility, the innocent will fall victim to criminal enactments and constitutional provisions intended for their benefit.

Instead of improvising a new method of sanction for those who claim their legal and constitutional rights to appeal their convictions, it would be far better to affirm on the merits. Litigants and lawyers are entitled to be treated fairly and equally and to have their legal problems considered on the merits. Judges may sometimes find it neither convenient nor pleasant to fulfill this duty, but nothing less is acceptable.

       The dissent strangely alludes to members of the court in oral argument questioning appellant’s counsel on his unusual request in his written brief that he wanted the court to affirm even though it might find error which would require reversal and a retrial. The dissent’s apparent suggestion is that the court should not ask questions that pertain to requests or arguments contained in the parties’ briefs. To accept such a suggestion would be strange indeed. Thus, we reject that idea.


author: Tom Glaze, Justice. Darrell Hickman, Justice,

text:
    Dennis SWANBERG, et al. v. Raymond TART, et al. and Oaklawn Jockey Club, Inc.
    89-69
    778 S.W.2d 931
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      Sanders & Hill, P.A., by: B. W. Sanders and Randy L. Hill, for appellants.

      Paul Bosson, for appellees Members of Garland County Board of Election commissioners.

      David White, Hot Springs City Attorney, for appellees Hot Springs City Manager and Board of Directors.

      Friday, Eldredge & Clark, by: Herschel H. Friday and Kevin A. Crass, for appellee Oaklawn Jockey Club, Inc.
   Tom Glaze, Justice.

This case concerns the Hot Springs election held on March 9,1989, when the voters approved Sunday racing. Seven days prior to the election, appellants, citizens and residents of Garland County, filed a petition in circuit court, seeking to invalidate the legislation providing for such election and to enjoin the election. The Garland County Board of Election Commission, the Hot Springs Board of Directors and the Oak-lawn Jockey Club, Inc., as intervenors, defended against the appellants’ suit. The trial court denied the appellants’ request on March 8, 1989, and on that same day, appellants filed their motion in this court requesting we “stay” the March 9 election. We denied that request, and now appellants, raising six points for reversal, ask that we reverse the trial court’s decision and set aside the March 9 election results that approved Sunday racing.

First, we mention that this court’s denial of the appellants’ request to stay the March 9 election was based upon the settled rule that the courts are without authority to enjoin the holding of a regular election, regularly called. Brown v. McDaniel, 244 Ark. 362, 427 S.W.2d 193 (1968). If a court, trial or appellate, can at the eleventh hour prohibit a regular election, regularly called, it is at once apparent that the control of judges over the election process goes far beyond reasonable limits. Id. In Brown, the court had four days to consider the taxpayers’ request to enjoin the election, and accordingly, it concluded that the best course was to let the election be held, leaving the parties to their post-election remedies. That same procedure was dictated here, since this case was first presented to this court one day before the scheduled election.

This controversy arose from the General Assembly’s enactment of Act 12 of 1989, which amended Ark. Code Ann. § 23-110-402 (Supp. 1987) and other related statutes. Section 23-110-402(b) previously empowered the Arkansas Racing Commission to specify racing days on which racing may be conducted, but in doing so, Sundays were excluded. Generally, Act 12 changed the law to permit the franchise holder (Oaklawn Jockey Club) to request the governing body (Hot Springs Board of Directors) to submit the Sunday racing issue to the voters in Hot Springs at a special election. Such an election, under Act 12, is required to be conducted under the general election laws except for the following:

1. The notice of the election shall be given by the clerk of the city, town or county involved by one publication in a newspaper having general circulation not less than ten days before the election;
2. the election shall be held no earlier than fifteen days after the date of the adoption of the ordinance in which the election is called by the legislative body;
3. the mayor of the city shall proclaim the results of the election by issuing the proclamation and publishing it one time in a newspaper having general circulation within the city; and
4. the results of the election shall be conclusive unless suit is filed in the circuit court within twenty days after the date of the publication of the proclamation.

Act 12 had an emergency clause which, if valid, made the act effective when the Governor signed it on February 3, 1989. On February 21,1989, the Hot Springs Board of Directors, pursuant to Act 12, passed Ordinance No. 3992 which called a special election on the Sunday racing issue to be held on March 9,1989. On March 2, 1989, appellants filed their original petition to enjoin the election.

Appellants first contend the March 9 election should be set aside because the time and manner in which it was called violated the absentee voting provisions, particularly Ark. Code Ann. § 7-5-407(a) (1987), of the state election code. In sum, § 7-5-407(a) provides that absentee ballots must be delivered to the county clerk not less than twenty-five days before any election. In the present case, the Hot Springs Board of Directors called the election on February 21,1989, which was only fifteen days before election day. Appellants’ argument must fail.

To begin, we note the well-settled rule that before an election, the provisions of election laws are mandatory, and after the election, the provisions are directory. Henley v. Goggin, 241 Ark. 348, 407 S.W.2d 732 (1966). In Henley, an action was brought against the Searcy County Board of Election Commissioners about three weeks prior to the November 8,1966 General Election to require the commissioner to comply with amendment 51, Arkansas’s voter registration law and the state’s absentee voting procedures. Recognizing the importance and the mandatory nature of the relief sought, this court advanced the cause for submission and decided its issues prior to the election.

Here, appellants requested no action to require the Garland County Board of Election Commissioners or the Garland County Clerk to comply with Arkansas’s absentee voting laws. Instead, appellants merely asserted the March 9 election should have been enjoined (and now assert set aside) by pointing to the twenty-five day requirement in § 7-5-407 (a) and the fifteen days actually allowed due to the date the Hot Springs Board of Directors called the election. Appellants failed at trial, or in this appeal, to name even one voter who was disfranchised by the absentee voting procedure employed at the election. Appellees, on the other hand, introduced testimony at trial by the Garland County Clerk, who said that she was “not aware of anyone being cutoff because of the lateness in arrival of absentee ballots.” This court has held many times that elections will not be invalidated for alleged wrongs committed unless those wrongs were such to render the result doubtful. Levelling v. Mansfield School Dist. No. 76, 240 Ark. 237, 398 S.W.2d 665 (1966); see also Allen v. Rankin, 269 Ark. 517, 602 S.W.2d 673 (1980). Here, appellants have wholly failed to show the wrong it asserts in any way caused a doubt in the election results on March 9.

In their second point for reversal, appellants contend that Act 12 is special legislation and violates amendment 14 to the Arkansas Constitution. This court has defined special legislation as follows:

An act is special if by some inherent limitation or classification it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate, and the legislation is local if it applies to any division or subdivision of the state less than the whole.

See, e.g., Owen v. Dalton, 296 Ark. 351, 757 S.W.2d 921 (1988).

Appellants’ main argument here is that Act 12 alters the state election laws for the convenience of the Oaklawn Jockey Club and the City of Hot Springs. Such an argument altogether ignores the fact that amendment 46 to the Arkansas Constitution provides that Hot Springs be treated differently by allowing horse racing and pari-mutuel wagering in that city only. If we were to accept the appellants’ argument, any legislative act, pertaining to horse racing authorized by amendment 46, would be special legislation.

For much the same reason, we reject appellants’ third argument. In this respect, appellants contend that all the voters in the state should have been allowed to vote on the Hot Springs Sunday racing issue. In support of their argument, appellants cite Ark. Code Ann. §§23-110-303 and -305 (1987), which provide that the approval of a majority of the qualified electors in the state must authorize the commission’s grant of a franchise to conduct horse racing in any county in this state.

Of course, we are not confronted here with the granting of a horse racing franchise which would invoke §§ 23-110-303 and -305. Such a franchise already has been vested, and under amendment 46, the General Assembly is empowered to regulate it. Sections 23-110-303 and -305 simply are not applicable. Amendment 46, itself, contains no language that would prohibit the General Assembly from referring the Sunday racing issue to a vote of the Hot Springs voters, rather than to the voters throughout the state, and we are aware of no other constitutional provisions that would bar the General Assembly. The system of elections was unknown at common law and is a matter governed purely by statute. See McCoy v. Story, 243 Ark. 1, 417 S.W.2d 954 (1967). We hold the General Assembly acted within its authority in passing Act 12 and allowing the Hot Springs voters to approve Sunday racing.

In point four, appellants argue that Act 12 is an unconstitutional attempt by the General Assembly to delegate its legislative authority to regulate racing pursuant to amendment 46. As we have stated and held above, the General Assembly was given the power under amendment 46 to decide the Hot Springs Sunday racing issue; nevertheless, by its enactment of Act 12, the General Assembly decided to allow the voters a voice on the question. This was not a delegation of legislative authority to enact a law. The court has held on prior occasions that the General Assembly can enact a law and provide for operation under it to depend upon a contingency or condition, such as a favorable vote of the electors. Summers v. Road Improvement Dist. No. 16, 160 Ark. 371, 254 S.W. 696 (1923); Capps v. Judsonia & Steprock Road Improvement Dist., 154 Ark. 46, 242 S.W. 72 (1922). In Capps, the court espoused the rule that the General Assembly may make a law to delegate the power to determine some facts or state of things, upon which the law makes or intends to make its own action depend. The court amplified by stating the following:

... it is plain that the statute does not amount to a delegation of the legislative power, but on the other hand the Legislature exercised its power by declaring what the law shall be when put into operation in a given locality by ascertainment of certain facts, i.e., the will of the majority in the given locality to be affected.

When viewing the law and circumstances here in the light of the foregoing principles, we are perforced to hold that the General Assembly’s enactment of Act 12 delegated the authority to the locality involved to determine a fact, i.e., whether Sunday horse racing should be conducted in Hot Springs. By the same token, the General Assembly retained all aspects of the power and control given it by amendment 46. In sum, we find nothing impermissible regarding the General Assembly’s decision to allow the people to vote on the Sunday racing issue.

In appellants’ next two points for reversal, they challenge the emergency clauses attached both to Act 12 and Ordinance No. 3992 — the ordinance used to call the March 9 election. Of course, if either was invalid, no authority existed for the call of the March 9 election and the results would be vitiated. We find merit in neither argument.

The emergency clause in Act 12 provides as follows:

It is hereby found and declared that horse racing and activities related thereto in Arkansas have had a most significant favorable impact on the economy of the entire state and the welfare of our citizens and residents, which is threatened by increased competition from racing in other states, including new and improved plants and programs in surrounding and nearby states, and it is imperative that Arkansas franchise holders be able to increase purses and improve facilities in order to keep up with competition and hold and improve Arkansas’ premiere and traditional position in horse racing, and that in order to accomplish these goals the amendments and provisions set forth in this act must be effective immediately. Therefore, an emergency is hereby declared to exist and this Act, being immediately necessary for the protection of the public peace, health and safety, shall take effect, and be in full force, immediately upon its passage and approval.

In deciding the validity of an emergency clause, this court in State v. Ziegenbein, 282 Ark. 162, 666 S.W.2d 698 (1984), set forth the rule as follows:

We do not disturb a finding by the General Assembly that a particular fact comprises an emergency if the fact is recited and if fairminded and intelligent men might reasonably differ as to the sufficiency and truth of the recited fact as a basis for declaring an emergency.

From our analysis of the emergency clause in Act 12, we are unable to say that a fair-minded and intelligent individual might differ with the facts given and recited as necessary for declaring an emergency.

Appellants, with respect to Act 12’s emergency clause, also assert that it conflicts with amendment 7 to the Arkansas Constitution by violating the proscription that “an emergency shall not be declared on any franchise or special privilege or act creating any vested right or interest. . . .” The answer to appellants’ assertion on this point is simple: the franchise, special privilege or act creating the vested right in Oaklawn Jockey Club, Inc. occurred long before the passage of Act 12, and the restriction in amendment 7, upon which appellants rely, does not apply.

Concerning appellants’ challenge that the emergency clause to Ordinance No. 3992 violated amendment 7, we believe the question raised is best answered in Chastain v. City of Little Rock, 208 Ark. 142, 185 S.W.2d 95 (1945). There, this court held that an ordinance passed by the Little Rock City Council ordering the annexation of certain territory to be submitted to the voters was not a measure subject to the referendum provisions of amendment 7. The Chastain court first noted the rule that the referendum is confined to legislative matters as distinguished from administrative or executive ones. In its opinion, the court set forth the act authorizing the submission of the annexation question to the voters and noted that no formality was prescribed by the act as to the manner the city council must follow in submitting the question. The court stated the following:

Under this statute it was not necessary that the council pass an ordinance providing for submission of the matter to the voters. It might have been properly done by a motion or resolution, and the determination by the council that the proposal to annex be submitted to the voters, regardless of the form in which this determination was expressed, was not a “legislative proposal or enactment.”

In the present situation, the Hot Springs Board of Directors called a special election to submit an issue to its voters and in doing so, was not enacting law. Because the Board’s action did not involve a legislative enactment, an emergency clause, as described in amendment 7, was not required.

For the reasons stated above, we affirm.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I dissent for two reasons. The act in question is an unlawful delegation of the power of the legislature, and the act is local and special in violation of amendment 14 to the Arkansas Constitution.

First, let me express my general agreement with the statements in the majority opinion about enjoining elections. We should not, except in clear and exceptional cases, stop elections. But neither should we abdicate our responsibility and refuse to set aside an election that is illegal, that is, an election on a question that cannot be the subject of an election. In this case it was an unconstitutional election.

In Justice George Rose Smith’s opinion in Brown & Jenkins v. McDaniel, 244 Ark. 362, 427 S.W.2d 193 (1968), he touched on this question when he quoted from an Iowa decision:

The jurisdiction of any court, or of the whole judicial department of the government, to enjoin the expression of the popular will at a time and in the manner provided by statute, may well be doubted. If the election, when held, was not according to statute, or if the statute was enacted without any constitutional authority, the courts might very well hold the election invalid. . . . (Italics supplied.)

In McDaniel, we were asked four days before the election to set aside a trial court’s order prohibiting an election. We allowed the election to proceed on the basis that courts are “without authority to enjoin the holding of a regular election, regularly called.” But we did so without prejudice to consider the matter after the election. Standing by that hurried judgment, we explained in an opinion issued later why that principle should be honored. But we are not toothless guardians of the legal process who can never intervene in the election process, and this case presents a prime example of the abuse of the election process. If we cannot sometimes intervene then, the people are powerless to check unconstitutional actions taken by the legislature.

It should be quickly noted that this was not a regular election. Indeed, it was a hurried up affair based on special legislation to allow Sunday racing at the Oaklawn Race Track during the 1989 racing season. While the facts presented and briefs filed may not or could not demonstrate any voter was disenfranchised, none would have been if this election had been ordered or permitted under the existing general election laws of this state. So this was not a regular election, regularly called, entitled to the unusual protection from interference.

We did not prohibit the election because there was no time to consider the numerous and difficult legal issues presented a day or so before the election. We issued no opinion nor any statement of why we declined to prohibit the election. Not all justices participated in the decision. Consequently, we should not now be prohibited from performing our duty simply because the election is over.

The most difficult question presented is the one on the constitutional principle of delegation of power. In this case the legislature delegated its power to decide what the law is to someone else. The legislature did not decide racing and gambling would be permitted on Sunday. Instead, it chose to delegate that decision to two deeply involved entities: the franchise holder and the electorate of the City of Hot Springs. It is understandable why the legislature did not want to decide horse racing and gambling should be permitted on Sunday. But it could not delegate that tough decision. Amendment 46 to the Arkansas Constitution did not give the power to regulate pari-mutuel gambling to anyone except the legislature. Amendment 46 reads:

Horse racing and pari-mutuel wagering thereon shall be lawful in Hot Springs, Garland County, Arkansas, and shall be regulated by the General Assembly.

Amendment 46 legalized what is a crime in Arkansas — gambling. The people, no doubt knowing what they were doing, did not want anyone less than their entire representative body to be held responsible for the regulation of this sensitive activity. If the franchise holder or the people of Hot Springs can decide whether there is to be horse racing and gambling on Sunday, then they can decide anything relating to the activity. Surely the people did not intend for the legislature to be able to avoid its duty and responsibility by granting to a few the power to decide what all the state said it would reserve unto itself.

We do not have the question of whether the legislature could have given the Racing Commission the power to decide this question. Such a commission is a creature of the legislature, subject to its control and presumably empowered only to execute legislation; the franchise holder and electorate of Hot Springs are not directly accountable to the legislature nor in any way empowered to execute law.

The majority relies, quite properly I might add, on some old cases which hold that the legislature is not delegating its power when it gives local people the right to vote on a proposition, thereby finding “facts” and putting into effect a law. These cases, and cases from other jurisdictions, were decided on the principle that it is the law that makes the vote, not the vote that makes the law. See McLeod v. Harvey, 125 Fla. 742, 170 So. 153 (1936); Board of Directors v. Kelly, 171 Or. 691, 137 P.2d 295 (1943); Cincinnati, Wilmington & Zanesville R.R. Co. v. Comm’rs of Clinton County, 1 Ohio St. 77 (1852).

The courts have not always held that way. Some early courts saw clearly what the legislature was doing. In Barto v. Himrod, 8 N.Y. 483 (1853), the court declared unconstitutional an act which relegated to the people the right to decide if it would “become law.” The court made the following statement:

The legislature had no power to make such submission, nor had the people the power to bind each other by acting upon it. They had voluntarily surrendered that power. . . .The government of this state is democratic; but it is representative democracy.

The court concluded that the practice of having the voters decide whether an act should become law weakened legislative responsibility. See L. Jaffe, An Essay on Delegation of Legislative Power II, 47 Colum. L. Rev. 561, 562 (1947); see also Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

So, while the majority of courts agree with our decision in Capps v. Judsonia & Steprock Road Improvement Co., 154 Ark. 46, 242 S.W. 72 (1922), I think they are wrong. It is simply a case of the courts accommodating the legislature. Permitting an election to decide if a law will become effective is simply delegating the power to make law. That is a legislative function, a fact which cannot be changed by even judges. In most cases, the practice is harmless because the delegation is to that group of voters interested or concerned with the legislation, such as an improvement district in a city or county. But what of delegation to a group that does not reflect those affected by the legislation? Are only the residents of Hot Springs concerned with horse racing and gambling on Sunday, or is that a concern of all of Arkansas? The people gave the entire general assembly the power to regulate this activity. Surely it cannot be delegated to the special interests selected in this case.

The act is also special and local legislation in violation of amendment 14 to the Arkansas Constitution. The majority opinion says that all legislation regarding horse racing and gambling in Hot Springs has to be special and local because amendment 46 applies only to the City of Hot Springs.

I hardly think the people of Arkansas meant for all provisions of the Constitution to give way to amendment 46. The people authorized the criminal act of gambling to occur in Hot Springs — they did not mean to suspend the application of all laws in relation to everything that government may do in allowing this activity.

It is undisputed that it is local. This act is special because it involves an election. We have laws on elections, for both general and special elections. Having decided there would be an election, then the election should have conformed to the laws governing all elections. Why should it not? Do electors in Hot Springs have more or less rights than others in the state? This is the very sort of thing amendment 14 was intended to prohibit.

I conclude the election must be voided as illegal.

Purtle, J., joins in the dissent.

       The appellants actually delineate seven points, but their last issue is covered generally in the other arguments made in their brief.

       In their abstract and brief, appellants never mention the results or votes cast in the March 9 election. Appellants also never allege, much less offer proof, that the election officials’ failure to comply with the twenty-five day requirement in § 7-5-407(a) could have materially changed the results of the election.

       Appellants also claim art. 3, § 2 of the Arkansas Constitution requires a state-wide vote; they fail, however, to offer any convincing argument to support their claim, and we know of none.


author: Thomas E. Sparks, Special Justice.

text:
    Robert CASH and Bob Cash Construction Company, Inc. v. ARKANSAS COMMISSION ON POLLUTION CONTROL AND ECOLOGY et al.
    89-43
    778 S.W.2d 606
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      Mitchell, Williams, Selig & Tucker, by: Allan Gates, for appellant.

      Steve Clark, Att’y Gen., by: R. B. Friedlander, Asst. Att’y Gen., for appellee Arkansas Commission on Pollution Control and Ecology.

      James G. Lingle, P.A., by: George D. Oleson, for appellees/ intervenors Citizens Against Land-Fill, Inc., Jeff Henthorne, Jerry Willis, Coy Baker, William Black, Robert Millsop, Tom Aley, and those members of C.A.L.F. who submitted written comments, Arkansas Conservation Coalition, Arkansas Audubon Society, National Audubon Society, The Ozark Society, and Arkansas Wildlife Federation.
   Thomas E. Sparks, Special Justice.

By order of May 22, 1987, appellee, Arkansas Commission on Pollution Control and Ecology, rescinded a permit previously granted by its Director to appellants. On June 19,1987, attorney for appellants served on the Commission their notice of appeal from the order of May 22, 1987, by hand delivering the same to the Secretary of the Commission. The notice of appeal was filed with the Clerk of the Circuit Court on July 14, 1987. On motions by appellee and appellee/intervenor Citizens Against Land-Fill, Inc., the circuit court found that it was without jurisdiction to review the order of the Commission as the notice of appeal was not filed with the Clerk of the Court within the time specified in Ark. Code Ann. § 8-4-223. The decision is affirmed.

The appellants rely upon two points Tor reversal. They contend:

1. The ten-day period for transmission of a timely-filed notice of appeal from the Secretary of the Arkansas Commission on Pollution Control and Ecology to the circuit clerk is not jurisdictional.
2. Even if the ten-day period for transmission of the notice of appeal were jurisdictional, there is no jurisdictional bar when transmission of the notice is completed prior to the time allowed in the statute for extension of time.

The applicable parts of Ark. Code Ann. § 8-4-223 read as follows:

(a)(1) Within thirty (30) days after service of a copy of the order, rule, regulation, or determination, the appellant shall serve a notice of appeal on the commission, through its secretary.
(c) The original notice of appeal, with proof of service, shall be filed by the appellant with the clerk of the circuit court within ten (10) days after service of the notice upon the commission, and thereupon the court shall have jurisdiction of the appeal.

The appellants properly served their notice of appeal on the Commission on June 19,1987, within the thirty (30) days allowed for service. Appellants admit that their original notice of appeal was not filed with the Clerk of the Circuit Court until July 14, 1987, which is more than ten days after the serving of the notice of appeal on the Commission through its Secretary.

The words of the statute are clear and free from any ambiguity. Subsection (c) requires that the appellant file the original notice of appeal with the Clerk of the Circuit Court within ten (10) days after service of the notice upon the Commission and “thereupon the Court shall have jurisdiction of the appeal.” The circuit court could have no jurisdiction without the proper and timely filing of the original notice of appeal. This is the effect of giving the language in question its usual and ordinary meaning.

The cases are in fact legion for the proposition that if the wording of a statute is clear and unambiguous, the statute will be given its plain meaning. See Pledger v. Ethyl Corporation, 299 Ark. 100, 771 S.W.2d 24 (1989); Woodruff v. Shockey, 297 Ark. 595, 764 S.W.2d 431 (1989).

We point out that the service of notice of appeal on a party to the litigation could not give the court jurisdiction. It is only when the notice is filed with the Clerk of the Circuit Court that the court has jurisdiction.

As to appellants’ second point, no request for an extension of time was made in this case. Therefore, we do not consider this point upon appeal.

Affirmed.

Hays, Newbern, and Glaze, JJ., not participating.

Special Justices Arthur Anderson and Joseph H. Purvis join in this opinion.


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

text:
    Robert ELKINS v. STATE of Arkansas
    RC 89-34
    778 S.W.2d 608
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      Pro Se Motion for Belated Appeal; denied.

      Appellant, pro se.

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

The petitioner Robert Elkins’ petition pursuant to Criminal Procedure Rule 37 was denied by the trial court on December 19, 1988. Petitioner now seeks a belated appeal from the order which denied the Rule 37 petition. He contends that he mailed a timely notice of appeal to the circuit clerk on some unspecified day in December, but the record does not reflect that a notice of appeal was filed with the circuit clerk. He provides a copy of a letter to him from the circuit judge indicating that the judge received a copy of the notice of appeal.

We will grant a belated appeal of an order denying a petition for post-conviction relief if good cause is shown for the petitioner’s failure to file a timely notice of appeal with the clerk. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986). The fact that a litigant is proceeding pro se does not excuse him from the responsibility for conforming to the rules of procedure. Peterson v. State, supra; Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983). We have held that the mere allegation that a petitioner mailed a notice of appeal without some substantiation is not good cause to grant a belated appeal. Key v. State, 297 Ark. 111, 759 S. W.2d 567 (1988); Alexander v. State, 282 Ark. 216, 667 S.W.2d 366 (1984). As we said in Alexander v. State, supra, if it were, there would be no point in setting up rules of procedure since the procedural requirements could be circumvented by a simple claim that the petitioner’s failure to comply with the rules was caused by the post office. It may be that the petitioner here mailed a copy of the notice of appeal to the circuit judge, but the circuit judge was not obligated to determine whether the original notice of appeal was received by the circuit clerk. Key v. State, supra.

Motion denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. All the petitioner seeks here is to have the denial of his Rule 37 petition reviewed on appeal. He alleges that he mailed timely notice of appeal to the trial court. Nobody has denied that he mailed it. In fact, the trial judge acknowledges timely receipt of the notice of appeal. We have simply denied review on the grounds that the petitioner did not file it with the circuit clerk. His notice of appeal is deemed filed on the date it is handed to prison authorities. See Houston v. Lack,_U.S__, 108 S.Ct. 2379 (1988).

The court’s opinion admits that although the petitioner mailed notice to the trial court, “the circuit judge was not obligated to determine whether the original notice of appeal was received by the circuit clerk.” This seems to me to be saying that neither the judiciary nor any other segment of the criminal justice system is obligated to lift a finger to aid a resident of the Arkansas Department of Correction to obtain a meritorious appeal from the denial of a Rule 37 petition. Such an attitude seems entirely too callous.

Apparently, a resident of the Arkansas Department of Correction or other prisoners must hereafter submit authenticated proof of the mailing of notice of appeal and, further, furnish proof that the clerk’s office received and filed the notice. See Key v. State, 297 Ark. Ill, 759 S.W.2d 567 (1988) (Justice Purtle dissenting). I am not unmindful of the Key opinion or of the case of Alexander v. State, 282 Ark. 216, 667 S.W.2d 366 (1984). The petitioner has furnished uncontradicted evidence that notice of appeal was received by the trial judge. The proof is a letter from the trial judge to the petitioner, dated March 8, 1989, which reads:

Mr. Elkins:
Reference is made to your Notice of Appeal and Designation of Record sent to my office and post-marked December 13, 1988.
Please consult your legal representative at the prison for the proper place to file said appeal and for further advice and clarification pertaining to your position in this matter.

The trial court could have more readily and easily handed the notice to the clerk’s office than go to the trouble and expense of writing the petitioner a letter — three months later — telling him he had filed his notice with the wrong person. Even a timely rejection letter would have given the petitioner an opportunity to claim his legal right to appellate review.

This case gives the appearance of the denial of the petitioner’s right of appeal without just reason.


author: Per Curiam. Tom Glaze, Justice,

text:
    Michael O’ROURKE v. STATE of Arkansas
    CR 89-145
    778 S.W.2d 938
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      Jeff Rosenzweig, appointed counsel for petitioner.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for respondent.
   Per Curiam.

In 1986 the petitioner Michael O’Rourke was found guilty of capital murder and sentenced to death. We affirmed. O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988). Petitioner subsequently filed a petition to proceed in circuit court pursuant to Criminal Procedure Rule 37. On February 27,1989, we granted petitioner permission to apply to the circuit court for an evidentiary hearing on two allegations of ineffective assistance of counsel. After an evidentiary hearing was held at which petitioner was represented by appointed counsel, Jeff Rosenzweig, the trial court entered an order denying post-conviction relief. Shortly after Mr. Rosenzweig lodged the record on appeal of the order, petitioner filed a pro se motion in which he stated that he did not wish to pursue the appeal or further litigation. He further stated in the heading of the motion that he wished to terminate Mr. Rosenzweig’s services as counsel.

A condemned person may waive collateral challenges to his conviction and sentence provided he is mentally competent to do so. Rees v. Peyton, 384 U.S. 312 (1966); Smith v. Armontrout, 812 F.2d 1050 (8th Cir.), cert. denied, 107 S. Ct. 3277 (1987); see Rumbaugh v. Procunier, 753 F.2d 395 (1985); Streetman v. Lynaugh, 674 F. Supp. 229 (E. D. Tex. 1987); see also Gilmorev. Utah, 429 U.S. 1012 (1976). In Rees the United States Supreme Court set out the standard to be used in deciding whether a person under sentence of death is mentally competent to choose to forgo further appeals and collateral attacks on his conviction and sentence. The test is

Whether he has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.

As the petitioner has alleged that he is competent and there can be no doubt that a competent person may avail himself of the right to abandon collateral remedies, we remand the case to the trial court for an evidentiary hearing on whether petitioner is competent under the standard announced in Rees. The trial court will appoint new counsel for the hearing.

Mr. Rosenzweig contends that petitioner is insane and that any action on this motion should be deferred pending disposition of the Rule 37 appeal, but counsel is not entitled to make the decision on whether his client is competent. While remanding this matter for a hearing may ultimately result in an even more protracted course than appears to be inevitable with most death penalty cases, the petitioner has a right to be heard.

The Rule 37 appeal is stayed and is subject to dismissal on proper motion if petitioner is found competent. If petitioner is declared incompetent to waive his post-conviction remedies, Mr. Rosenzweig will continue to represent petitioner in the Rule 37 appeal. (We decline to relieve Mr. Rosenzweig as the petitioner has not provided any good cause to remove him as attorney-of-record.)

Remanded.

Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. I dissent. By its action, the majority court has permitted, yet again, a defendant, convicted of capital murder, to take control of the judicial process. The result is predictable. These cases normally wind their way into the federal court process where they are never heard from again. See Whitmore v. State, 299 Ark. 55, 61, 271 S.W.2d 266, 268 (1989). In Whitmore, this court referred to capital cases that appeared to have come to the end of the direct appeal and post-conviction relief processes, only to find the cases once again entered the federal district court system and seemingly disappeared. Several such cases are identified in Whitmore, one, Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), cert. denied, 450 U.S. 1035 (1981), having been filed in the federal district court in 1981. Miller’s case has now been in the judicial system for eleven years, and it is anyone’s guess when his case will end.

By allowing O’Rourke in this case the opportunity to withdraw his appeal, we add another step to the judicial process — a competency hearing in a post-conviction proceeding which will also require our later review of that hearing. In addition, if experience teaches us anything, O’Rourke’s case, as it concerns the issue involving his competency and ability to waive his post-conviction appeal, will inevitably go to the federal court system and most likely end up before the Supreme Court. At any stage, O’Rourke may, as other convicted murder defendants have done in the past, decide he wants to reinstate his appeal on the merits. A few recent examples (there are others) where defendants, convicted of capital murder, have changed their minds to have their cases decided are as follows:

William Frank Parker v. State: Parker notified his counsel and others after he was sentenced to death that he did not want to appeal. Prosecutor asked to have the appeal dismissed, but trial court declined. Parker’s attorney filed a motion for stay of execution to which the Attorney General objected, citing Parker’s request to waive appeal. Parker then notified parties that he had changed his mind and wanted an appeal after all. The case was subsequently reversed on appeal. Parker was retried and again received the death sentence. He again said he wanted to drop his appeals. The trial court held a hearing on the request this time, but he again changed his mind and decided to go on with the appeal, which is now pending in this court.
Barry Lee Fairchild v. State: After Fairchild had exhausted state remedies and was proceeding in federal court, he notified Judge Eisele that he wished to abandon his federal remedies. Judge Eisele ordered a mental evaluation which resulted in Fairchild being declared competent to waive further litigation and be executed. Fairchild changed his mind.
Daniel Remeta v. State: Remeta asked this court to allow him to dismiss his appeal so that he could be returned from Florida’s deathrow to Arkansas and be executed here. This court remanded the case to the trial court for a hearing on his competence. He subsequently changed his mind and again decided to proceed with an appeal in this court.

To allow such a manipulation of the judicial process undermines any fair-minded person’s confidence in our court system.

The state courts have no power to end those Arkansas capital murder cases that languish in the federal district court. Sometime the federal government, and particularly the judiciary, will have to resolve this serious failure to decide and dispose of capital murder cases that routinely spring into the federal court system after being resolved by the state courts. In fact, the manner in which the judiciaries as a whole, and the federal judiciary in particular, have handled these capital cases has been a public disgrace! A recent report reflects that there are now approximately 2,200 convicted murderers on death row awaiting execution, yet since 1972, only 116 executions have taken place. See Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases Report and Proposal, released to public on September 21, 1989. 2*Regardless of how poorly these capital cases have been administered in the past, this court need not add to the problem.

In Franz v. State, 296 Ark. 181, 194, 754 S.W.2d 836, 846 (1988) (Glaze, J., concurring in part and dissenting in part), I suggested that justice would be better served, and delays avoided, if the court automatically reviewed the lower court’s record of the sentencing phase of the trial. In his dissent, Justice Hays urged our court to adopt a procedure to review the argument of all possible prejudicial errors in cases where a sentence of death is imposed. Id. at 198, 754 S.W.2d at 848.1 am now of the opinion that Justice Hays is correct. His suggestion of mandatory review in direct appeals of all capital cases not only would serve the ends of justice, it also would put the state courts in control of these cases so their treatment of them can be expedited.

Meanwhile, I would adopt the same mandatory review procedure in this post-conviction appeal, and deny O’Rourke’s request to abandon his appeal. In doing so, we can expeditiously discharge the state’s responsibility in this important matter.

Hays, J., joins this dissent.

       The Committee’s report reflects the longest judicial proceeding concerning a death penalty case covered a period of fourteen years and six months, and the average period in such a proceeding is eight years and two months.

       The present case is a Rule 37, post-conviction proceeding, not a direct appeal. O’Rourke is not automatically entitled to post-conviction relief. Even so, this court granted O’Rourke’s petition for an evidentiary hearing which he was given and from which he filed this appeal. Because this proceeding involves a capital murder offense, our court should consider and decide the case as expeditiously as possible rather than to foster and encourage further delays in the judicial process.

       This court in Whitmore v. State, abolished Rule 37 effective July 1, 1989, but provided that persons who have been convicted and sentenced during the Rule’s existence may still proceed under that Rule. O’Rourke, of course, qualifies to proceed under Rule 37.


author: Per Curiam.

text:
    Clenton WITHERS a/k/a Clinton Withers v. STATE of Arkansas
    RC 89-28
    778 S.W.2d 608
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      Appellant, pro se.

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

On April 14, 1987, the petitioner Clenton Withers was found guilty by a jury of manslaughter and sentenced to ten years imprisonment. A timely notice of appeal was filed by his retained attorney, James P. Massie. The record was not lodged on appeal, and petitioner Withers has now filed a motion for rule on the clerk, seeking to have the record prepared for filing despite the delay. Mr. Massie has submitted an affidavit in response to the motion in which he concedes that he filed a notice of appeal but contends that the record was never prepared and lodged here because Withers refused to pay the cost of preparing it.

On July 16, 1987, the trial court noted on its docket that petitioner had not made a deposit on the cost of preparing the transcript and ordered him committed to the Arkansas Department of Correction to begin serving his sentence. The court also rejected an affidavit of indigency submitted by petitioner, noting that he was not indigent and had spent his available funds rather than pay his attorney and the court reporter. The court further said that petitioner’s conduct in not perfecting the appeal was “by design and purpose.”

The motion for rule on the clerk is denied. The circuit court made a finding that the petitioner was not indigent and through his own actions made the decision not to appeal. Petitioner does not address this finding. We do not know if the court made a finding after a hearing, at which the defendant was present, or whether it was made in his absence. In any event, the petitioner must overcome the presumption the order was properly entered.

Motion denied without prejudice.