author: LAVENSKI R. SMITH, Justice. TOM GLAZE, Justbut I cite

text:
    Gregory R. LARIMORE v. STATE of Arkansas
    CR 99-513
    3 S.W.3d 680
    Supreme Court of Arkansas
    Opinion delivered November 11, 1999

      Daniel G. Ritchey; Bill W. Bristow; and Kent J. Reubens, for appellant.

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

Gregory Larimore (“Larimore”) appeals ice. court’s denial of pretrial bail pending the State’s appeal from the grant of a writ of error coram nobis. The trial court declined to set bond finding it premature to do so prior to the resolution of the State’s appeal. We find no error and affirm.

Facts

While this particular appeal comes before us on the limited issue of bail, some background to this case is necessary to understand the posture of this petition. This is the fourth Larimore appeal. The Crittenden County Circuit Court convicted Larimore of the first-degree murder of June Larimore, his wife, in 1990. We reversed the conviction and remanded the case for a new trial in an opinion dated May 26, 1992 (“Larimore I”) . After retrial in 1993, the jury again returned a verdict of guilty. On appeal, we affirmed the second conviction on May 23, 1994 (“Larimore IF’) . Larimore filed a petition for postconviction relief under Ark. R. Crim. P. 37, based on allegations of prosecutorial misconduct in failing to expose exculpatory evidence to the defense. The State moved to dismiss, and Larimore amended his petition to assert, in the alternative, that he was entitled to relief through a writ of error coram nobis. The trial court dismissed the motion, and Larimore appealed to this court from that order of dismissal. In an opinion dated February 10, 1997 (“Larimore IIF’) , we affirmed the motion to dismiss the Rule 37 petition, reversed the finding that the time limits of a Rule 37 petition apply to a writ of error coram nobis, and granted leave to the circuit court to determine whether a writ of error coram nobis should be issued.

Coram Nobis and Pretrial Bail

On March 25, 1999, following a hearing, the Crittenden County Circuit Court granted Larimore’s writ of error coram nobis. The writ set aside Larimore’s 1993 conviction and ordered a new trial. On March 29, 1999, Larimore filed a motion for pretrial release and bail, requesting that he be released on a $150,000 bond, the same sum the court set for him pending his first appeal and second trial. Larimore has been incarcerated since 1994 when we affirmed his conviction in Larimore II.

On April 1, 1999, the State appealed from the grant of the writ of error coram nobis. On April 5, 1999, the trial court held a hearing on Larimore’s motion for pretrial release and bail. At the hearing, the trial court did not take testimony, but did hear oral arguments from the attorneys. Larimore argued that the granting of the writ placed him in the same legal status as that he held prior to his first conviction in 1990. After oral arguments, the trial court denied bail finding that Larimore is not eligible for bond release unless and until the writ of error coram nobis survives appellate review. Near the close of the hearing the court stated:

There’s been no change in the order that was entered by the Court in ’94 or whenever it was. Until the supreme court acts on this appeal here, it’s still the — everything is about the same as it was before the court rilled — this court ruled. So it’s subject to appeal. And, therefore, the defendant is not entitled to a bond at this point until the appeal has been acted upon. So, the defendant’s petition for pretrial release is denied.

In the subsequent written order filed April 27, 1999, the trial court denied bail finding that the writ would not become effective until upheld on appeal. Larimore immediately filed his notice of appeal from the denial of pretrial release and bail.

On appeal, Larimore argues that the issue before this Court is whether the State’s filing of a notice of appeal from the grant of the writ of error coram nobis deprived the trial court of both the right and duty to set bond where there has been no conviction. Larimore contends that since the writ vacated his conviction and ordered a new trial, it is as if Larimore had never been convicted of a crime. As such, he should be entitled to pretrial bail because pretrial bail is available in all except capital crimes, and he was not charged with a capital crime.

The State counters Larimore’s contentions by arguing that its appeal, in effect, stayed the writ and new trial. The State argues that Larimore now occupies the same position he occupied when he was last convicted, and until the supreme court acts, Larimore remains convicted of first-degree murder. The State asserts Larimore thus stands convicted of a crime, and the State is appealing a judgment undoing that verdict. Furthermore, Ark. R. App. P.— Crim. 6(b)(3) does not allow release of one convicted of first degree-murder under any circumstance.

This matter is before this court on an appeal from the denial of bail. We have treated such an appeal as a petition for writ of certiorari. Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992) (citing Thomas v. State, 260 Ark. 512, 542 S.W.2d 284 (1976)); Perry v. State, 275 Ark. 170, 628 S.W.2d 304 (1982). Writs of certiorari have been labeled the appropriate vehicle for relief in bail proceedings. See, e.g., State v. Pulaski County Circuit Court, 326 Ark. 886, 934 S.W.2d 915 (1996); Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994). In Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994), we stated:

Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy, and it is available to the appellate court in its exercise of superintending control over a lower court that is proceeding illegally where no other mode of review has been provided. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). A demonstration of plain, manifest, clear, and gross abuse of discretion is essential before this court will grant a petition for writ of certiorari. Shorey v. Thompson, 295 Ark. 664, 750 S.W.2d 955 (1988).

Foreman, 317 Ark. at 148. As such, this case is properly before us on a writ of certiorari filed by Larimore to secure his release on pretrial bail.

Availability of bail/release

Article 2, § 8, of the Arkansas Constitution provides that “All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when proof is evident or the presumption great.” Stated another way, a criminal defendant has an absolute right before conviction, except in capital cases, to a reasonable bail. Henley v. Taylor, 324 Ark. 114, 918 S.W.2d 713 (1996); Reeves v. State, 261 Ark. 384, 548 S.W.2d 822 (1977); Duncan, supra. A bond on appeal, however, is not an absolute right. Perry, supra. Bail on appeal is governed by Rule 6 of the Arkansas Rules of Appellate Procedure—Criminal. Most notable for this case is that bail on appeal is not available for one who has been found guilty of murder in the first degree. Ark. R. App. P.—Crim. 6. As such, the only type of bail to which Larimore could possibly be entitled would be “pretrial” bail under Article 2, § 8, of the Arkansas Constitution and Rule 9.2 of the Arkansas Rules of Criminal Procedure.

The State argues, and the trial court apparently held, that the State’s filing of a notice of appeal acted to suspend the effective date of the grant of the writ of error coram nobis. The State argues that the trial court’s order denying pretrial bail was entered with the intent of staying the grant until this court could consider the State’s appeal. We agree.

When a trial court grants a writ of coram nobis, the remedy is a new trial. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). However, the remedy’s grant is suspended pending the outcome of the State’s appeal of its appropriateness. Consequently, at this juncture, Larimore stands convicted of first-degree murder and is ineligible for pretrial bail pursuant to Ark. R. App. P.—Crim. 6(b)(3). The trial court, therefore, did not err when it denied Larimore’s request for such relief.

Affirmed.

Glaze, J., concurs.

TOM GLAZE, Justbut I cite

concurring.. I agree with the majority opinion, but I cite the case of State v. Scott, 289 Ark. 234, 710 S.W.2d 212 (1986), as added authority supporting the decision reached by this court.

Gregory R. Larimore was convicted for murdering his wife, but we reversed that conviction. Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992). On remand, Larimore was again convicted, and this second murder conviction was affirmed. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). Larimore then filed a petition for postconviction relief under Ark. R. Crim. P. 37, which we denied as being untimely. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). However, after denying Rule 37 relief, the court reinvested the trial court with jurisdiction to hear Larimore’s petition for a writ of error coram nobis and to decide whether a writ should be granted. Id. at 282. On March 25, 1999, the trial court granted Larimore’s request for writ, ordered his conviction to be set aside, granted a new trial, and scheduled the new trial for June 22, 1999.

On March 29, Larimore filed a motion asking that he be released on bond, and asserting that he should be treated as not having been convicted, but instead as one who has only been charged. The trial court correctly denied Larimore’s motion. The State appealed the trial court’s March 25 decision, so a nonconviction status cannot as yet be attributed to Larimore. The State’s pending appeal is docketed as CR99-618.

Although Larimore submits the State has no right to appeal the trial court’s granting of a writ, this court has allowed such an appeal in State v. Scott, 289 Ark. 234, 710 S.W.2d 212 (1986) (coram nobis appeal by the State). In Scott, this court reviewed whether the trial court there abused its discretion in granting the writ and a new trial. The Scott court affirmed the trial court’s ruling, but it was only after that appellate decision was made that the defendant, Scott, was entitled to a new trial.

In sum, because this court has recognized the State’s authority to defend its criminal judgment against collateral attack, I join with the majority court in affirming the trial court’s ruling finding Larimore ineligible for bail under Ark. R. App. P.—-Crim. 6(b)(3) (1999).

        Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992).

        Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994).

        Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald R. FRAZIER v. STATE of Arkansas
    CR 99-340
    3 S.W.3d 334
    Supreme Court of Arkansas
    Opinion delivered November 11, 1999

      Petitioner, pro se.
    No response.
   PER CURIAM.

On October 12, 1998, judgment was entered reflecting that Donald R. Frazier had been found guilty by a jury of aggravated robbery, residential burglary, and theft of property. An aggregate term of 120 months’ imprisonment was imposed. Frazier was represented at trial by his retained attorney, John Kearney. No appeal was taken, and Frazier filed a motion here seeking to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure—Criminal, which permits a belated appeal in a criminal case in some instances.

Petitioner Frazier contended that he told counsel he desired to appeal. In an affidavit filed in response to the motion for belated appeal, Mr. Kearney denied that appellant had requested that an appeal be taken. Because the resolution of the matter required findings of fact, we remanded the motion to the trial court for an evidentiary hearing on the issue of whether counsel was made aware within the time period allowed for filing a notice of appeal that petitioner desired to appeal. Frazier v. State, CR 99-340 (July 1, 1999). The trial court’s Findings of Fact and Conclusions of Law and the transcript of the evidentiary hearing are now before us.

The court took testimony at the hearing from Frazier and Kearney on the question of fact to be resolved. After hearing the conflicting testimony, the court concluded the following:

...[Frazier] failed to inform his attorney that [he] desired to appeal within the time allowed by law. Fiowever, it does appear that due to [his] age and education or lack of education, that [he] took actions that implied he desired to appeal, within the time allowed by law.

The court supported its conclusion that Frazier implied his desire to appeal with references to Frazier’s testimony that Frazier wrote Kearney approximately one week after his trial inquiring about the status of the case and asking whether Kearney was going to continue as his attorney. Frazier further testified that he, his father, and Kearney engaged in a three-way telephone conversation about a week after he wrote the letter, to which there had been no response, in which Frazier inquired again as to the status of the case and whether Kearney was continuing as his attorney and “furthering” the case. • Kearney was alleged by Frazier to have answered in the affirmative. Kearney testified that he had no recollection of any correspondence from Frazier or the three-way telephone call.

The court’s findings indicate that while Frazier may not have used the words, “I wish to appeal,” the court accepted Frazier’s assertions he did communicate with Kearney about his desire to pursue whatever remedy was available to him. The court concluded that Frazier’s failure to articulate that the remedy he desired was a direct appeal of the judgment was caused by his youth and lack of education. As the merit of the motion for belated appeal rested on the credibility of the witnesses and this court recognizes that it is the lower court’s task to assess the credibility of witnesses and resolve conflicts of fact, we accept the trial court’s finding that Kearney knew that Frazier desired to pursue his legal remedies and that the remedy available was a direct appeal of the judgment. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). Accordingly, the motion for belated appeal is granted.

Because petitioner Frazier asked in his motion to proceed with a belated appeal to be declared indigent and to have the record brought up at public expense, we directed the trial court to also take testimony on petitioner’s eligibility to proceed informa pauperis if he were ultimately allowed to proceed with an appeal. The court found that petitioner has no income, no money on deposit, and no property and concluded that he was indigent. We are satisfied in light of the court’s findings that petitioner is indeed entitled to proceed as a pauper.

As Mr. Kearney, who was retained below, has never been relieved as counsel for petitioner, he remains attorney-of-record and is appointed to represent the appellant. Our clerk will lodge the partial record which was filed with the motion for belated appeal, and counsel is directed to file within thirty days a petition for writ of certiorari to bring up the remainder of the record, or that portion of it, necessary for the appeal.

Motion granted.

       Frazier was seventeen when convicted.


author: WH. “Dub” Arnold, Chief Justice. TOM Glaze, Justice, ROBERT L. Brown, Justice,

text:
    Durwood KING v. Sam WHITFIELD, Marion Hickey, Dennis Littleton, Carolyn Doster, and the Phillips County Election Commission
    99-359
    5 S.W.3d 21
    Supreme Court of Arkansas
    Opinion delivered November 18, 1999

      David B. Solomon; Roscopf & Roscopf, P.A., by: Charles B. Roscopf, for appellant.

      Alvin L. Simes, for appellee.
   WH. “Dub” Arnold, Chief Justice.

Appellant, Durwood stice. appeal, challenging the circuit court’s order dismissing his complaint against Sam 'Whitfield, the certified winner in a contested general election held for Municipal Judge for the City of Helena, Arkansas, on November 3, 1998. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(a)(4) (1999). Specifically, King asserts that the trial court erred (1) by concluding that it lacked jurisdiction to hear his complaint, and (2) by counting eighty-six absentee ballots cast in favor of Whitfield. We find no merit in appellant’s arguments, and we affirm the trial court’s decision dismissing the complaint for lack of jurisdiction and for failure to state facts upon which relief can be granted. See Ark. R. Civ. P. 12(b)(1), (6) (1999). In light of our holding affirming the trial court’s decision to dismiss appellant’s complaint, we decline to address the merits of King’s remaining arguments.

On the face of appellant’s complaint, he alleged that the case presented an election contest pursuant to Ark. Code Ann. section 7-5-801 (Repl. 1993), that both he and Whitfield were candidates for municipal judge, and that appellee Election Commission certified Whitfield as the candidate elected. Additionally, King asserted that eighty-eight of the votes cast for Whitfield were mailed by Nathan Ashwood to the County Clerk in two separate parcels, one containing thirty-nine absentee ballots and the other forty-nine absentee ballots. King alleged that the absentee ballots were invalid because they were not cast in compliance with Ark. Code Ann. section 7-5-411. Consequently, he averred that he received the majority of votes cast and should be declared the municipal judge. Notably, the complaint failed to allege the total number of votes cast, the total number of votes cast for each candidate, and the date the election was certified. King also failed to state the names of the contested absentee-ballot voters.

After reviewing the complaint, the trial court concluded that it lacked jurisdiction because the face of the complaint demonstrated that the action was not commenced within twenty days of the election’s certification, as required by Ark. Code Ann. section 7-5-801 (Repl. 1993). Although a review of the record indicates that (1) the election was certified on November 17, 1998, (2) the complaint was filed on November 30, 1998, (3) the Election Commission certified that a total of 2,432 votes were cast in the municipal judge’s race, 1,174 votes for the incumbent judge, King, and 1,258 votes for appellee Whitfield, none of these facts was alleged in the complaint. Additionally, the trial court found that the complaint failed to state sufficient facts to support a claim and that the eighty-six disputed ballots were valid and properly counted. From this order comes the instant appeal, challenging the trial court’s dismissal. We affirm.

I. Standard of review

Appellant’s first point on appeal challenges the trial court’s order granting appellee Whitfield’s motion to dismiss. This court reviews a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. See Hames v. Cravens, 332 Ark. 437, 440-41, 966 S.W.2d 244 (1998) (citing Neal v. Wilson, 316 Ark. 588, 595-96, 873 S.W.2d 552 (1994) (citing Gordon v. Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989)); Mid-South Beverages, Inc., 300 Ark. 204, 205, 778 S.W.2d (1989) (citing Battle, 298 Ark. 241))). Significantly, a trial judge must look only to the allegations in the complaint to decide a motion to dismiss. Harms, 332 Ark. at 441 (citing Neal, 316 Ark. at 596 (citing Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992)); Mid-South Beverages, Inc., 300 Ark. at 205 (citing Battle, 298 Ark. 241))).

II. Jurisdiction

Based upon the face of King’s complaint, the trial court concluded that it lacked jurisdiction because it determined that the action was not filed within twenty days of certification, pursuant to Ark. Code Ann. section 7-5-801 (Repl. 1993). Section 7-5-801 (d) provides that:

The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statements to be true and shall be filed within twenty (20) days of the certification complained of.

In paragraph seven of his complaint, King alleged that:

The Defendants Election Commission certified Sam Whitfield as being the candidate elected in this election on November 3, 1998, which certificate is error and improper as set out herein, and the Election Commission should have certified Plaintiff as the person who was elected.

(Emphasis added.) Apparently, the trial court concluded that King’s reference to November 3, 1998, the day the general election was held, implied that that was also the date of certification. Although the record indicates that the certification date was November 17, 1998, the complaint fails to state sufficient facts for the trial court to determine that jurisdiction was properly alleged. Accordingly, the trial court properly dismissed the complaint for lack of jurisdiction.

III. Failure to state a cause of action

Kang’s second point on appeal contends that the trial court erred by finding that the complaint failed to sufficiendy state a cause of action. In its letter opinion incorporated in the order of dismissal, the trial court noted that King failed to name the voters who allegedly cast illegal ballots and faded to allege the certified vote totals for each candidate or the vote differentials. The trial court concluded that King presented only bare allegations, warranting dismissal. We agree.

In paragraphs eight, nine, ten, and eleven of his complaint, King alleges that Nathan Ashwood mailed a total of eighty-eight ballots to the Phillips County Clerk that were unaccompanied by a certificate authorizing Ashwood to return the ballots. King also stated his intent to challenge each ballot individually, pursuant to Ark. Code Ann. section 7-5-411. Finally, King alleged that because the eighty-eight absentee ballots cast for appellee Whitfield were invalid, King would have a majority of the valid votes cast in the election.

We have repeatedly held that election statutes should be liberally construed to ensure compliance. See Duennenberg v. City of Barling, 309 Ark. 541, 832 S.W.2d 237 (1992); see also LaFargue v. Waggoner, 189 Ark. 757, 75 S.W.2d 235 (1934). Significantly, in LaFargue, we noted that “if there are sufficient facts stated to give the other party reasonable information as to the grounds of the contest, then the case should be tried on its merits.” LaFargue, 189 Ark. at 768. Further, in Gunter v. Fletcher, 217 Ark. 800, 233 S.W.2d 242 (1950), we acknowledged that the purpose of the election laws was to facilitate, and not hinder by technical requirements, the quick initiation of election contests. Gunter, 217 Ark. at 802. As a general rule, we do not hold parties to the same strict technical accuracy as required in a civil pleading, and we will disregard technical objections. Gunter, 217 Ark. at 802-03 (citing Robinson v. Knowlton, 183 Ark. 1127, 1133, 40 S.W.2d 450, 452 (1931)).

In spite of our liberal construction, a review of our cases considering the sufficiency of allegations in an election-contest complaint reveals that we require some detailed information to sustain the complaint. See McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959). For example, in Gunter, the complaint alleged the total number1 of votes cast for each contestant, the names of each voter alleged to have cast an illegal ballot, and the township in which each had voted. McClendon, 230 Ark. at 522, 323 S.W.2d at 543. The complaint gave detailed information of the name and voting place of each person alleged to have cast an illegal ballot. Id. Significantly, it is not the trial court’s duty, on its own initiative, to ask the names of persons alleged to have cast illegal ballots. Here, it remained King’s responsibility to sufficiendy allege a cause of action. McClendon, 230 Ark. at 524, 323 S.W.2d at 544. At a minimum, King should have alleged in the complaint the number of votes received by each candidate, so that it would appear, after deducting the alleged fraudulent votes from the number accredited to Whitfield, that King would have more votes than his opponent. See McClendon, 230 Ark. at 525, 323 S.W.2d at 544-45.

Although appellant asserts that he included the vote totals in the complaint, a review of the complaint demonstrates otherwise. In the absence of vote totals or differentials, the trial court could not conclude from the face of the complaint that, if the absentee votes were counted for King, the result of the election would actually have been different. Where, as here, a party fails to allege the specific facts necessary to contest the election and declare himself the winner, it is too late to subsequendy amend his complaint by pointing to facts outside the complaint after the time for contesting the election has expired. See Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992); see also Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965).

In the instant case, King failed to set out a prima facie case essential to state a cause of action for an election contest and failed to inform either the opposing party or the trial court as to the specific facts creating a cause of action and vesting jurisdiction in the trial court. Treating the facts alleged in the complaint as true and viewing the complaint in the light most favorable to appellant, we, nevertheless, conclude that the trial court properly dismissed King’s complaint.

Glaze, Brown, and Smith, JJ„ concur.

TOM Glaze, Justice,

concurring. I concur, and write to stice, Arkansas law that controls election contests like the case before us. First, it must be emphasized that an election contest is a statutory or special proceeding under Ark. R. Civ. P. 81. Rule 81 provides that the rules of civil procedure do not apply where a statute specifically creates a right, remedy, or proceeding that provides a different procedure. See Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992). This court has also held that the procedure for contesting an election is purely statutory, and a strict observance of statutory requirements is essential to the exercise of jurisdiction by the court, as it is desirable that election results have a degree of stability and finality. Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973). The Reed court further explained that the purpose of election contests is to aid the democratic processes upon which our system of government is based by providing a ready remedy whereby compliance with election laws may be assured to facilitate, not hinder by technical requirements, the quick initiation and disposition of such contests. (Emphasis added.) Id. at 634.

As can be discerned from our case law above, election contest procedures are uniquely designed to dispose of all questions or issues quickly so stability and finality can be reached, thus, permitting government to continue as it should. Accordingly, once election results are certified, a contestant must file his or her complaint questioning those results within twenty days of the certification. See Ark. Stat. Ann. § 7-5-806(d) (Repl. 1993). In construing § 7-5-806(d) (and its predecessor provision), this court has required that an election complaint must state a prima facie case and plead sufficient facts to give the other party reasonable information as to the grounds of the contest. McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959); see also 26 Am.Jur.2d, Elections § 432 (1996). The McClendon court also noted that Arkansas law requires the contestant to name every alleged illegal voter against whom he proposes to offer proof when individual ballots are challenged as illegal. Id. footnote 3 at 524; see also 26 Am.Jur.2d Elections § 434 (1996) and 29 C.J.S. Elections § 268 (2) (g) (1965).

In the instant case, appellant contestant Durwood King specifically stated that he was individually challenging 88 absentee ballots. Nonetheless, King failed to plead the names of those alleged illegal voters against whom he intended to offer proof. King relies on the case of Gunter v. Fletcher, 217 Ark. 800, 233 S.W.2d 242 (1950), which he contends reheves him of any burden to specify the names of alleged illegal voters in his complaint. Such contention is misplaced and is dispelled by the numerous election cases dealing with this very subject matter. In fact, one needs only read McClendon, where this court fully discussed the Gunter decision and pointed out that the contestant in Gunter had specified in his complaint the name of each person alleged to have cast an illegal ballot. The McClendon court held that because the contestant, McClendon, failed to allege he had received a majority of the legal votes cast or to name the persons -whose votes he claimed were illegal, his complaint failed to state a cause of action. In sum, the court concluded contestant McClendon had failed to set out a prima facie case and the essential allegations necessary to state a cause of action in an election contest. McClendon, 230 Ark. at 525, 323 S.W.2d at 545; to this same effect, see Files v Hill, 268 Ark. 106, 594 S.W.2d 836 (1980) (complaint without any identification of either the vote or the voters does not contain sufficient factual allegations to state a cause of action); Simonetti v. Brick, 266 Ark. 551, 587 S.W.2d 16 (1979) (complaint which does not charge that any specific illegal vote was cast fails to state a cause of action and such a requirement places no [undue] burden on contestants to require them to state the names of the alleged illegal voters); Cowger & Stewart v. Mathis, 255 Ark. 511, 501 S.W.2d 212 (1973) (petition for contest of an election does not state a cause of action when it does not charge that any specified vote was illegally cast, or does not contain sufficient information which would identify any such illegal voter, and contains only generalities or conclusions of law to the effect that illegal votes were cast); Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967); Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965) (in order to state a cause of action, an election contestant must show that the outcome of the election would be changed if certain identified irregular votes cast for his opponent were disregarded).

As already mentioned, King failed to identify by name the 88 alleged illegal absentee voters in his complaint, and as a result, his complaint failed to state a cause of action. As pointed out by the majority opinion, King also was obliged by Arkansas precedent to state in his complaint the number of votes received by each candidate, so that it would appear, after deducting the alleged illegal votes from the number accredited to appellee Sam Whitfield, King would have more votes than Whitfield. See Mason v. Peterson, 238 Ark 1069, 386 S.W.2d 286 (1965); McClendon, 230 Ark. 521, 525, 323 S.W.2d 542, 545. Here, King’s complaint did not mention either his total amount of votes or Whitfield’s vote total, but instead only generally alleged that, if the illegal votes were not counted, King would have a majority of the valid votes cast. Such a general allegation fails to meet the requirements set out in our established case law and is an additional reason for dismissing King’s complaint for failing to state a cause of action.

Finally, it was suggested in oral argument that, even if King’s complaint was deficient, such defect was cured because the circuit court allowed King to present his case on the merits at trial. This argument fails for two reasons. First, Whitfield objected to King’s complaint and requested it be dismissed for failing to state a cause of action. The trial judge agreed with Whitfield’s dismissal motion, but the judge still permitted King to introduce evidence on the merits of the case. At the same time, the judge preserved Whitfield’s objection to allowing any evidence since the judge had dismissed King’s complaint. The judge obviously took this approach so that his dismissal ruling and decision on the merits both could be reviewed in one appeal. In short, Whitfield never waived the trial court’s dismissal ruling made in his behalf, but instead the trial judge was trying to practice judicial economy in an election case that needed to be facilitated and expedited. There is a second reason why King’s complaint could not be cured so he could have his case decided on the merits. This is not an Ark. R. Civ. P.12(b)(6) dismissal matter where the insufficiencies in the complaint are covered by our rules of civil procedure and, under such rules, can later be corrected. Once again, Arkansas law specifically covers this subject and does not allow an election contest complaint that was deficient when filed to be later amended and corrected to allege a cause of action after the twenty-day period for filing the complaint has elapsed. In Wheeler, 239 Ark. 455, 390 S.W.2d 129, the court affirmed the trial court decision not to allow the contestant to amend his complaint after the expiration of the twenty days allowed for filing of the contest. The court explained as follows:

As we have seen, this complaint did not state a cause of action. To allow it to be amended in such a way as to state a cause of action would, in effect, permit the plaintiff to assert, for the first time, his cause of action after the expiration of the twenty days. Such an amendment is not permissible. (Emphasis added.)

See also Cowger, 255 Ark. 871, 501 S.W.2d 212; Jones, 242 Ark. 907, 416 S.W.2d 306.

Although Arkansas law controlling election contests, in my view, soundly supports the trial court’s decision, dismissing Kang’s complaint in this case, I think the General Assembly should review its statutory procedures in this area of the law. Finality and stability in our elections are essential ingredients of a democratic process, but so are. honesty, integrity, and legal exactness. Generally, the period is short between the time when officials are elected and certified and when they take their oath of office. Accordingly, our contest procedures are designed and written to put complaints of election irregularities to rest. Nevertheless, our election laws can be written to establish, encourage, and facilitate both finality and honesty in Arkansas elections.

Under existing law, Arkansas’s abbreviated twenty-day period to file an election contest makes it is almost impossible to investigate and acquire sufficient proof to identify individual voters who allegedly cast illegal ballots. It is only in the rare race where a candidate or nominee loses by the narrowest of votes that one could accomplish such a feat and then still have the time to allege a prima facie cause of action. Cf. 26 AM.JUR.2d Elections § 434; 29 C.J.S. Elections § 268 (2) (g). Hopefully, the General Assembly will address this important subject in its next session. As the law stands now, I agree with the majority court that the trial court correctly dismissed King’s complaint.

ROBERT L. Brown, Justice,

concurring. I concur in the stice, the merits of the case and not dismiss King’s complaint based on procedural technicalities. I would affirm because King did not prove that the two mailings of absentee ballots violate state law.

Today’s opinion makes it vastly more difficult to contest an election, and that should not be. The majority does this by mandating that non-essential information be included in a complaint to state a cause of action. This runs counter to basic democracy and fairness. We have made this clear in the past in our cases. For example, in Gunter v. Fletcher, 217 Ark. 800, 802, 233 S.W.2d 242, 243 (1950); we said:

The purpose of our statutes governing election contests is to aid the democratic processes upon which our system of government is based, by providing a ready remedy whereby compliance with the election laws can be assured. The purpose is to facilitate, not to hinder by technical requirements, the quick initiation of such contests.

I see no reason to deviate from this principle in the case before us.

The essence of Durwood King’s complaint is as follows:

7. The Defendants Election commission certified Sam Whitfield as being the candidate elected in this election on November 3, 1998, which certificate is error and improper as set out herein, and the Election Commission should have certified Plaintiff as the person who was elected.
8. By mail, the County Clerk received in an envelope with the return address of Nathan Ashwood, Helena, Arkansas, 39 absentee ballots. These ballots were from individual voters and the certificate accompanying them indicated what (sic) the voter was mailing the ballot to the County Clerk and did not indicate that Nathan Ashwood was authorized to return them to the County Clerk.
9. Nathan Ashwood by mail sent to the Phillips County Clerk another envelope containing 49 absentee ballots of individual voters. The certificates accompanying these ballots in four instances were not marked as to how the ballots would be returned, and the remaining ballots indicated that the voter was returning them by mail.
10. Plaintiff challenged each ballot individually for the reason that it did not comply with and was in violation of Section 7-5-411, Arkansas Code Annotated.
11. Plaintiff states that these 88 ballots were all cast for Defendant Sam Whitfield and were illegal ballots as stated. If these ballots were not counted Plaintiff would have a majority of the valid votes cast in this election for the position of Municipal Judge of the City of Helena, Arkansas.

The facts of the complaint were verified as true by King, and the complaint was filed on November 30, 1998.

I. Timeliness of the Complaint

The majority first errs in dismissing King’s complaint because it alleged an erroneous date for certification. The complaint gave the date of certification of the election results as November 3, 1998. The correct date was November 17, 1998. This is not in dispute. Indeed, the correct date was proved to the trial court at the hearing on January 12, 1999. The point is that the complaint was clearly filed within the 20-day time limit set out in Ark. Code Ann. § 7-5-801(d) (1987).

At oral argument before this court, the attorneys for King acknowledged that the date shown in the complaint was a drafter’s error. For this court to dismiss a timely complaint for an election contest due to an error in the date, which everyone acknowledges was a mistake, runs contrary to any sense of justice and is at odds with the stated purpose in the majority opinion which is to facilitate election contests. By deciding this case on such a procedural technicality and by avoiding the merits, we are doing exactly what we said we would not do in Gunter v. Fletcher, supra.

II. Stated Cause of Action

The majority also dismisses the complaint for failure to state election totals for each candidate and to identify the names of the illegal voters. Again, that precise evidence was supplied at the January 12, 1999 hearing. But regardless of that, I believe the complaint states a prima facie case, as required by Ark. Code Ann. § 7-5-802 (1987).

King alleged in his complaint:
(1) that he should have been certified the winner of the election;
(2) that Nathan Ashwood of Helena mailed in two batches of absentee ballots — one for 39 ballots and one for 49 ballots, for a total of 88 ballots;
(3) that this mailing procedure violated § 7-5-411;
(4) that the 88 ballots were all cast for Whitfield, and if they were not counted, King would have a majority of the votes.

What else is needed to state a cause of action? It appears to me that the complaint does so in clear and cogent fashion. The majority opinion relies on four cases to dismiss on technical grounds, all of which are distinguishable and one of which clearly supports my position that the merits should be reached in this case. See Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992); Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965); McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959); Gunter v. Fletcher, supra.

In Gunter v. Fletcher, supra, we came down squarely on the side of reaching the merits in election contests and avoiding decisions based on procedural technicalities. In Gunter, the plaintiff alleged recomputed vote totals for the two candidates in his complaint. The total votes actually cast in the election were not given. The defendant demurred, and the trial court sustained the demurrer for failure to state sufficient facts. We reversed the trial court and held that giving the actual vote totals was not required. As already noted, we stated that the purpose of the election laws is to facilitate, and not to hinder by technical requirements the quick initiation of election contests. We added that the purpose in pleading in election contests was to give the other side “reasonable information as to the grounds of the contest....” Gunter, 217 Ark. at 802, 233 S.W.2d at 243, citing LeFargue v. Waggoner, 189 Ark. 757, 768, 75 S.W.2d 235, 240 (1934). We concluded that what the plaintiff set out was sufficient and that no genuinely use&l purpose would be served by requiring the voting totals in the complaint. Yet, requiring voting totals is precisely what the majority opinion does in the instant case.

In a later case, we made it clear that a contestant must allege in the complaint that he would win if the disputed votes were eliminated. See McClendon v. McKeown, supra. In McClendon, the plaintiff refused to give the names of the contested voters and never expressly alleged that he would win if the illegal votes were not counted. The complaint only alleged how many votes had been certified for each candidate and that 23 votes had been illegally cast. We pointed out that the plaintiff failed to give the names of those purported to have cast the 23 illegal ballots. Plus, he simply said if the votes are not counted, he “verily believes he will have received more votes” than his opponent. McClendon, 230 Ark. at 523, 323 S.W.2d at 545. From what I can tell he never alleged why those 23 votes were illegal. We held that these lapses in his complaint combined to show that he did not raise a prima facie case, and we agreed with the trial court that the complaint smacked of a fishing expedition to try to make a case by later discovery.

The McClendon facts are a far cry from the facts we have before us in the instant case. Here, King tells us what disputed votes are involved by referring to all of the votes in Nathan Ashwood’s two absentee bulk mailings. He tells us the disputed votes total 88, and he cites statutory authority for why the votes are illegal. In short, he alleges definitely and with precision that without these votes, he would win.

In Wheeler v. Jones, supra, the plaintiff omitted from his complaint which candidate benefitted from the illegal votes. Instead, the complaint set out the total votes per candidate and then asserted that 52 named persons voted in an absentee box and were not qualified electors and that 196 named persons voted in precincts in which they did not reside. The trial court sustained a demurrer, and we affirmed. We held, for obvious reasons, that the complaint did not state a cause of action because the plaintiff did not allege whether the contested votes were cast for the winner or that the election results would be different if the votes were set aside. King’s complaint is different. He states that without the contested absentee votes, he would win. The decision in Wheeler v. Jones, supra, does not control the instant case.

Finally, there is Rubens v. Hodges, supra, a case that is obviously inapposite. In Rubens, the complaint did not tell us for whom the disenfranchised voters would have voted. In that case, the victorious candidate for justice of the peace died before the election. Her opponent filed an election contest and alleged that the voters of one ward were entitled to vote for the JP position, but the ballots did not include that election. She asserted that of the 23 people voting in that ward, 9 wanted to vote for her. In another ward, voters were directed to a machine where the race was omitted from the ballot. She alleged that 7 people wanted to vote for her in that ward. She claimed that with these 16 votes, she should be declared the winner. We refused to do so. We pointed out in our opinion that she did not allege how the other 14 people would have voted in the ward where 23 people could not vote. She also faded to allege how many other voters were directed to the wrong voting machine and how they would have voted. We concluded that she had not alleged sufficient facts to show the election results would have been different.

Here, King alleges that the total illegal absentee votes are 88, and that not counting them would make him the winner. Our fact situation is categorically different from Rubens v. Hodges, supra, and when all is said and done, there is no case which is on all fours with the facts of the case at hand.

III. Bulk Mailing

Nevertheless, I would affirm the trial court’s decision on the merits. The applicable statute at the time of the election read:

(a) Absentee voting may be accomplished in one (1) of the two (2) following methods, and in no other manner:
(1) By ballot cast my mail which must be received in the office of the county clerk of the county of residence of the voter not later than 7:30 p.m. on election day. However, absentee ballots applied for not later than thirty (30) days before the election, by qualified electors outside the United States on election day which are signed and dated by the voters no later than the day of the election and received by the county clerk no later than 5:00 p.m. ten (10) calendar days after the date of the election;

Ark. Code Ann. § 7-5-411 (1987). By its plain terms, there is no prohibition against bulk mailing of absentee ballots. King relies heavily on the case of Roach v. Kirk, 228 Ark. 958, 311 S.W.2d 525 (1958), which by dictum indicates that absentee ballots must be personally mailed. That was clearly not the holding in Roach. Moreover, that case predates Act 465 of 1969, which provides for casting ballots by mail and which does not require personal mailing.

If the General Assembly had wanted to do so, it could easily have required personal mailing by each absentee voter. It did not do so by Act 465 of 1969. In fact, the General Assembly did not amend § 7-5-411(a)(1) to require personal mailing until 1999 when it added this language: “The qualified elector shall personally mail his ballot, except that an administrator may mail the absentee ballots of a long-term care or residential care facility’s residents in a single mailing.” 1999 Ark. ACTS 1586 § 1. A personal mailing component cannot be read into the statute by the courts for elections that occurred prior to Act 1586 of 1999.

For that reason alone I would affirm.

Smith, J., joins.

       The trial court dismissed King’s complaint for failing to state a cause of action, but also did so on the basis that King did not allege the correct date of certification of the election results. King’s complaint alleged the election results were certified on November 3, 1998, and he filed his complaint on November 30, 1998 — seven days outside the required twenty-day statutory period. It was later determined that the certification date was actually November 17, 1998, which, if alleged correctly,' would have shown King’s complaint to be timely.

       In sum, King sought to prove that the absentee ballots that he challenged were cast in violation of Ark. Code Ann. § 7-5-411 (Supp. 1999), and because those ballots were illegal and cast in Whitfield’s favor, they should be deducted from Whitfield’s total, resulting in King having the most votes.


text:
    Eric Randall NANCE v. STATE of Arkansas
    CR 99-365
    4 S.W.3d 501
    Supreme Court of Arkansas
    Opinion delivered November 18, 1999

      Charles L. Carpenter, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., for appellee.
   WH. “Dub” Arnold, Chief JRandall Nance, was convicted of

The appellant, Eric Randall Nance, was convicted of capital felony murder and sentenced to die by lethal injection. This Court affirmed the conviction and sentence in Nance v. State, 322 Ark. 583, 918 S.W.2d 114 (1996). Appellant filed a petition for certiorari with the United States Supreme Court, seeking review of this Court’s decision. The Supreme Court denied certiorari. Appellant filed a timely petition for relief under Rule 37 of the Arkansas Rules of Criminal Procedure, alleging, among other things, that his trial counsel provided ineffective representation during the trial and penalty phases of his trial. Appellant requested a hearing.

The State filed a motion for summary judgment on the pleadings on November 12, 1997. Appellant filed a response. On December 3, 1998, without having held a hearing, the trial court issued an order denying appellant’s petition for postconviction relief. It is from that order that appellant brings the instant appeal. On appeal, appellant asserts the following:

1) The trial court erred in dismissing appellant’s petition for relief without holding an evidentiary hearing on his claims of ineffective assistance of counsel;
2) The trial court’s failure to grant appellant a hearing violates his right to equal protection of the law.

I. Evidentiary hearing

Appellant contends that the trial court should have held a hearing with respect to two of his claims of ineffective assistance of counsel: (1) both of his trial counsel were ineffective for failing to present a coherent mitigation case; and (2) counsel were ineffective for failing to object to a sentence recommendation by the victim’s mother during the penalty phase of the trial. The trial court found that these claims were conclusory and insufficient to warrant post-conviction relief. On appeal from the denial of postconviction relief, the trial court’s findings will not be reversed unless they are clearly erroneous or clearly against the preponderance of the evidence. Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996).

Where a petition for Rule 37 relief is filed, the trial court must either grant a hearing on the petition or make a determination from the files and records if they conclusively show that the petitioner is entitled to no relief. If the petition is summarily denied without an evidentiary hearing, the court must make written findings specifying the parts of the files and records relied upon in denying the petition. Brown v. State, 291 Ark. 143, 722 S.W.2d 845 (1987). 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. Smith v. State, 300 Ark. 291, 778 S.W.2d 924 (1989).

The trial court is not required to hold an evidentiary hearing, even in a case involving the death penalty. We have held that the circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997) (citing Ark. R. Crim. P. 37.3(a)). Furthermore, conclusory allegations that are unsupported by facts do not provide a basis for either an evidentiary hearing or postconviction relief. Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996). As we stated in Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989):

A claim that prejudice was suffered without any factual explanation about what form the prejudice took or how serious it was is not enough to prove ineffective assistance of counsel. Conclusory allegations which are not supported by a showing of actual prejudice so serious as to deprive the petitioner of a fair trial or a fair appellate proceeding do not warrant an evidentiary hearing.

Clearly, the mere fact that an evidentiary hearing was not conducted is not reason, in and of itself, to warrant reversal of the trial court.

A. “Coherent mitigation case”

Appellant contends that his counsel were ineffective for failing to develop a “coherent mitigation case” based upon his alleged mental problems. Appellant states that “it is unclear what counsels’ strategy was” in this regard, and that it is inappropriate “for either the trial court or this Court to assign a strategy to defense counsel without further evidence and then pronounce that strategy to be sound.”

It should first be noted that appellant has failed to abstract any of the trial below, except for the pretrial motions filed by counsel, rulings on some of the motions, and a jury instruction. Therefore, we are unable to determine exactly what was presented during the trial or sentencing phase.

In addition, appellant seems to overlook the fact that the trial court did not assign as trial strategy counsel’s decision not to present mitigation evidence concerning his alleged mental problems. Instead, the trial court found that this claim was “general, nonspecific, and does not constitute a basis for postconviction relief.” Furthermore, the trial court found that appellant’s counsel sought funding for an independent mental evaluation, for investigation of mitigation evidence, and for hiring an investigator; thus, any claims to the contrary were conclusory. We agree.

Appellant contends that the trial court’s finding was erroneous because the court knew of his mental problems and because his counsel submitted jury instructions concerning his mental state at the time of the murder. Appellant has, however, failed to establish what mental problems he had that could have provided a basis for a “coherent mitigation case.” The trial court simply stated that it was aware of his “purported past mental history” and ordered a mental evaluation of him. This evaluation was to include a determination whether, on the date of the murder, appellant lacked the capacity, as a result of mental disease or defect, to conform his conduct to the requirements of the law and whether he had the capacity to form the culpable mental state to commit the murder.

The record does not reflect whether that evaluation occurred and, if so, what the results were. However, the absence of any evidence at trial concerning appellant’s alleged mental problems, and more importantly, appellant’s failure to present in his Rule 37 petition (and in this appeal) any evidence whatsoever to support this claim, augments the trial court’s conclusion that this claim is conclusory.

Furthermore, appellant’s failure to bolster his claim with proof of his alleged mental problems renders his claim of ineffective assistance of counsel meritless; as such, appellant was not entitled to a hearing in this regard. As we stated in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), the strong presumption in favor of counsel’s effectiveness cannot be overcome by the mere claim that petitioner had relatives or other witnesses who might have had some mitigating evidence to present.

In order to show that his counsel were ineffective, appellant must establish that their representation fell below an objectively reasonable standard and that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668 (1984); Wainmight v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). This reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

The appellant has failed to offer any evidence that his counsel were ineffective for failing to develop a mitigation case based upon his alleged mental problems. Moreover, he has failed to establish that a reasonable probability exists that the outcome of the penalty phase would have been different had his counsel pursued the alleged mitigation evidence. Therefore, appellant failed to meet his burden under Strickland, and the trial court properly denied relief on this claim without a hearing. See Scott v. State, 303 Ark. 197, 795 S.W.2d 353 (1990) (postconviction relief properly denied without a hearing regarding conclusory claim of failure to present witnesses where defendant failed to list witnesses not procured); Whitmore, 299 Ark. at 66, 771 S.W.2d at 271 (no hearing warranted based upon bald statements of history of psychiatric treatment, alcoholism, and dysfunctional family, where defendant offered no details of what witnesses could have testified to and how outcome would have been different); Rheuark v. State, 299 Ark. 243, 771 S.W.2d 111 (1989) (no hearing warranted where defendant failed to establish prejudice).

B. Victim-impact testimony

Appellant next contends that his counsel were ineffective for failing to object to testimony by the victim’s mother that she believed appellant deserved the death penalty. He further argues that the trial court erred in dismissing this claim without a hearing. The trial court found that appellant’s attorneys “moved to prohibit and to limit victim-impact testimony both pretrial and at trial prior to the mother’s testimony.... Further, no facts are alleged which would show prejudice, only conclusory allegations of ineffective assistance of counsel.” We agree.

First, the trial court was correct in finding that appellant’s attorneys objected both before and during trial to the victim-impact evidence, albeit on relevancy grounds. Still, appellant failed to establish that his attorneys should have objected yet again on the ground that the victim’s mother’s testimony constituted an improper sentencing recommendation. Further, the question of when or whether to object is clearly a matter of trial strategy. We have held only recently that experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may succeed in making the comments seem more significant to the jury. See Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). We have repeatedly held that matters of trial strategy do not provide a basis for either an evidentiary hearing or postconviction relief. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992); Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987).

Moreover, appellant has failed to establish that there is a reasonable probability that the outcome of the sentencing phase would have been different had his attorneys objected. There was, in fact, overwhelming evidence of appellant’s guilt, as previously determined by this Court. Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). In addition, the jury found that two aggravating circumstances existed: (1) that appellant had previously committed another violent felony; and (2) that appellant had committed the present murder to avoid or prevent arrest. This Court has already concluded that neither of these findings was erroneous. Nance, 323 Ark. at 605, 918 S.W.2d at 124-25. That being the case, appellant has failed to establish that the outcome would have been different had his attorneys objected to the statement by the victim’s mother.

We hold, therefore, that the trial court’s failure to hold an evidentiary hearing in the instant case does not constitute error.

II. Equal Protection

Appellant next contends that his case should be governed by Rule 37.5 of the Arkansas Rules of Criminal Procedure because his petition was pending when Rule 37.5 took effect. Rule 37.5 requires, within twenty-one days of the issuance of the appellate mandate, an assessment of the availability of counsel for defendants sentenced to death.

Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 through 206 (Supp. 1997) (Arkansas Effective Death Penalty Act of 1997), where the General Assembly expressly noted that the purpose of the Act was to comply with federal law by instituting a comprehensive state court review. Ark. Code Ann. § 16-91-204 (Supp. 1997). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. We have held, therefore, that in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing. Appellant argues that he is entitled to the application of Rule 37.5, including the right of access to the records of his trial attorneys and the right to the assistance of counsel who may be paid for their efforts and reimbursed for investigative expenses. Because the provisions of Rule 37.5 were not applied to him, appellant contends that his equal protection rights have been violated. This argument, however, was not presented below, nor was it presented in appellant’s Rule 37 petition; furthermore, this argument is not cognizable under Rule 37 review. Therefore, appellant is procedurally barred from asserting it on appeal.

Even constitutional questions must first be presented to the trial court in order to be preserved for appellate review. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998). Having faded to ask for Rule 37.5 to be applied to him below, appellant may not complain on appeal that he was somehow deprived of its application.

Affirmed.


author: ROBERT L. Brown, Justice.

text:
    Curtis Jason GREEN v. The Honorable William Pickens MILLS, White County Circuit Judge Paul W. Howell and Lori Howell
    99-420
    4 S.W.3d 493
    Supreme Court of Arkansas
    Opinion delivered November 18, 1999

      Hodges & Hodges, by: David Hodges, for petitioner.

      The Stanley Law Firm, P.A., by: James W. Stanley, Jr.; and Gregory Ferguson, for respondents.
   ROBERT L. Brown, Justice.

Petitioner Curtis Jason Green petitions tice. issue a writ of prohibition to the circuit court on the grounds that that court lacks personal jurisdiction over him due to failure of the plaintiffs to effect personal service of process. We deny the petition. We further deny the respondents’ motions to dismiss or quash Curtis Green’s petition for a writ of prohibition because they are moot.

On September 18, 1997, respondents Paul W Howell and Lori Howell filed a complaint against Curtis Green and his father, Dr. Terry Green, for injuries arising out of an automobile accident that occurred two years earlier on July 5, 1995. The Howells alleged that Curtis Green was negligent in the operation of his father’s vehicle and that Dr. Green, as the owner of the vehicle, was jointly liable.

On October 27, 1997, service of the Howells’ complaint and a summons was personally had on Dr. Green at his home in Yell County. At the same time, service of the complaint and summons for Curtis Green was also effected on Dr. Green. At the time of this latter service of process, Curtis Green was age 17 and attending boarding school at Missouri Military School in Mexico, Missouri.

On November 4, 1997, Curtis Green and Dr. Green filed an answer and asserted defenses including insufficiency of process. On March 11, 1998, summary judgment was entered in favor of Dr. Green. On January 15, 1999, Curtis Green moved to dismiss the Howells’ complaint due to insufficient service of process under Ark. R. Civ. P. 4(d) and because the statute of limitations had now run. On March 22, 1999, the trial court entered an order denying Curtis Green’s motion to dismiss, primarily for the reason that substituted service on Dr. Green was effective service for Curtis Green under Rule 4(d)(2). Curtis Green now files this petition for writ of prohibition for the same reasons set out in his motion to dismiss before the trial court.

I. Propriety 'of Prohibition

It is essential, initially, for this court to examine whether prohibition is the appropriate remedy. We first observe that Curtis Green has named the individual judge and the Howells as respondents to his petition. That is incorrect. Prohibition lies to the circuit court and not to the individual judge. See The Travelers Insur. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997); Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997); Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992). Accordingly, we will treat the petition as one against the circuit court. See Ford v. Wilson, supra.

We recently set out the requirements for a writ of prohibition:

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Henderson Specialties, Inc. v. Boone County Circuit Court, 334 Ark. 111, 971 S.W.2d 234 (1998); Nucor Holding Co. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). The writ is appropriate only when there is no other remedy, such as an appeal, available. Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994) (quoting National Sec. Fire & Cos. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992)). When deciding whether prohibition will he, we confine our review to the pleadings in the case. The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993).

State v. Circuit Court of Lincoln County, 336 Ark. 122, 125, 984 S.W.2d 412, 414 (1999).

We have further made it clear that prohibition is not an appropriate remedy where there are disputed facts for the trial court to resolve. See Nucor-Yamato Steel v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994). Curtis Green acknowledges that where his “usual place of abode” and “dwelling house” were in October 1997 for purposes of Rule 4(d) may represent a disputed issue of fact because he was in boarding school in Missouri at the time. He concedes, however, that for purposes of his petition and Rule 4(d) his father’s home was his usual place of abode and dwelling house.

The question then arises as to whether lack of service of process and, thus, personal jurisdiction in the circuit court constitutes grounds for prohibition. We have held that a complete lack of service of process can give rise to the issuance of a writ of prohibition. See Gillioz v. Kincannon, 213 Ark. 1010, 214 S.W.2d 212 (1948). In Gillioz, the defendants were nonresidents of the state, and constructive service was had on them by appointing the Secretary of State as their agent for service of process and serving the Secretary of State. The legislative act permitting constructive service was passed after the alleged negligence of the defendants, which led to the lawsuit. There was, therefore, no law in effect permitting in personamjuúsdicúon in the circuit court at the time of the defendants’ alleged negligence, and we granted the writ.

Similarly, Curtis Green in the instant case petitions on the basis that the circuit court never obtained personal jurisdiction over him. We hold that this is a proper ground for consideration of a prohibition writ.

II. Merits of the Case

The precise rules at issue in this case are Ark. R. Civ. P. 4(d)(1) and 4(d)(2), which read:

(d) Personal Service Inside the State. A copy of the summons and of the complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
(1) Upon an individual, other than an infant by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.
(2) When the defendant is under the age of 14 years, service must be upon a parent or guardian having the care and control of the infant, or upon any other person having the care and control of the infant and with whom the infant lives. When the infant is at least 14 years of age, service shall be upon him. (Emphasis added.)

The thrust of Curtis Green’s contention before the trial court in his motion to dismiss, and before this court in his petition for prohibition, is that Rule 4(d)(2) plainly states: “When the infant is at least 14 years of age, service shall be upon him.” That was precisely his situation in October 1997, he contends, and the only means of effecting service upon him under the clear language of Rule 4 (d)(2) was by personal service.

In support of his position, Curtis Green directs our attention to our rules of statutory construction. He urges that the same canons of construction which are applicable to statutory construction should apply to interpretation of this court’s rules. The plain-meaning rule controls this case, he argues, and this court has defined plain meaning as follows:

The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. Locke v. Cook, 245 Ark. 787, 793, 434 S.W.2d 598, 601 (1968).

Kildow v. Baldwin Piano & organ, 333 Ark. 335, 339, 969 S.W.2d 190, 192 (1998). He further maintains that the statutory and regulatory service-of-process requirements are in derogation of common law. As such, they are mandatory and must be complied with strictly. See Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996); Sims v. Prescott Iced Milk, Inc., 286 Ark. 22, 688 S.W.2d 743 (1985); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). He adds that where attempted service is invalid, any judgment arising therefrom is void. See Carruth v. Design Interiors, Inc., supra.

The petitioner omits two important canons of statutory and regulatory construction from his discussion. The first is that this court does not engage in interpretations that defy common sense and produce absurd results. See Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996). The second is that in construing statutes, as well as our rules, we look to the language under discussion in the context of the statute as a whole. See Steward v. McDonald, 330 Ark. 837, 958 S.W.2d 297 (1997); Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997).

Curtis Green would have this court interpret Rule 4(d)(2) so as to carve out a unique exception for defendants between the ages of 14 and 18 and disallow substituted service on persons in the household for this limited range of people. Rule 4(d)(1) provides that service of process for an adult may be accomplished by leaving a copy at the adult’s dwelling or usual place of abode with someone who is at least age 14. Rule 4(d)(2) provides that service for a defendant under age 14 must be upon the parent or guardian or any other person having the care and control of that defendant. It would be nonsensical to read our rules to say that only for those defendants between the ages of 14 and 18 is personal service absolute and substituted service is disallowed. Moreover, the fact that defendants in this age group may be served by mail cuts against Curtis Green’s position that only service in person is allowed. See Ark. R. Civ. P. 4(d)(8).

There is, too, the fact that there is a reasonable interpretation for the statement regarding personal service in Rule 4(d)(2) for those defendants between the ages of 14 and 18. Those defendants are to be served personally, but this statement is not intended to eliminate substituted service on a parent, guardian, or one having the care and control of that defendant. Of course, that is precisely what occurred when Dr. Green was served on behalf of his son. Reporter’s Note 6 to Ark. R. Civ. P. 4(d)(2) lends credence to this interpretation. Reporter’s Notes are not precedent for this court but may offer some guidance as to a rule’s meaning. Reporter’s Note 6 supports substituted service for defendants between the ages of 14 and 18 by allowing service upon the parent, guardian or other person having the care and control of that defendant. This differs from the substituted service’ permitted for adults which is provided under Rule 4(d)(1). We hold that Reporter’s Note 6 is a reasonable interpretation of our rule concerning substituted service of process on those persons between the ages of 14 and 18.

Curtis Green does offer authority from other jurisdictions, but in reading those cases, they are distinguishable and offer no guidance in interpreting this court’s own rules. See Brooks v. Young, 467 S.E.2d 230 (Ga. App. 1996) (Georgia statute does not distinguish minors older or younger than age 14 and actually provides for substituted service); Allied American Ins. Co. v. Ayala, 616 N.E.2d 1349 (Ill. App. 2d Dist. 1993) (whether minor was over or under age 14 difficult to ascertain from opinion and no summons was issued for the minor); Flint v. Baker, 189 So.2d 654 (Fla. 1966) (statute at issue in the case has been repealed).

In short, we uphold service of process on Curtis Green in this case. Accordingly, we need not address the other issues raised in this appeal. The petition for writ of prohibition is denied. The respondents’ motions to dismiss or quash the petition are moot.