Tornavacca v. State, 2012 Ark. 224

Appellant Tornavacca pleaded guilty to theft of property and theft of a shotgun in Hot Spring County; he entered drug-court in exchange for suspended judgment and a 30-year sentence, with completion of the program deferring judgment.
He violated drug-court rules on October 26 and October 27, 2010 (alcohol use, unapproved medication use), leading to a staff meeting and a decision to impose two additional strikes, resulting in incarceration.
A Rule 37.1 petition was filed (Jan 2011) challenging the two strikes and alleging ineffective assistance of counsel for not protecting due-process rights; a hearing was held in February 2011.
The circuit court found (i) strikes were supported by evidence (alcohol use, failure to call in, unapproved Soma); (ii) no prejudice from counsel’s alleged deficiencies; and (iii) due-process arguments lacked merit.
On appeal, the Arkansas Supreme Court affirmed the circuit court, holding that Tornavacca’s due-process claim was raisable in Rule 37 and that the evidence supported the strikes; issues about broader drug-court procedures were not reached.
Concurrence and dissent discuss the special nature of drug court and due-process protections, with the dissent arguing that minimal due-process protections apply and were violated.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Due-process before drug-court termination	Tornavacca claims failure to provide notice, hearing, and presence at staffing.	State argues waiver and that hearing not required; Rule 37 remedy suffices.	No reversible error; due-process claim raised in Rule 37 is preserved.
Ineffective assistance of counsel at termination	Counsel failed to protect due-process rights and to seek a hearing.	Defense counsel acted within strategic choices; no prejudice shown.	No reversible error; no reasonable probability of different outcome absent alleged deficiencies.
Whether two strikes were properly found	Counts or nature of strikes unclear; disparate handling of October incidents.	Findings supported: alcohol use (Oct 26) and unapproved Soma (Oct 27).	Findings not clearly erroneous; properly counted as two strikes.
Drug-court procedures flawed; due-process implications	Staffings off the record; no hearing to contest violations; rights not adequately protected.	Issues raised for first time on appeal and not judicially cognizable; hearing process exists in Rule 37 context.	Upholds refusal to address procedural-flaw issues on appeal.

Morrissey v. Brewer, 408 U.S. 471 (U.S. (1972)) (due-process protections in parole revocation context)
Gagnon v. Scarpelli, 411 U.S. 778 (U.S. (1973)) (probation/proceedings due process extended to revocation contexts)
Polivka v. State, 362 S.W.3d 918 (Ark. 2010) (Rule 37 scrutiny after guilty pleas may address post-plea errors in sentencing/conditions)
Rowbottom v. State, 13 S.W.3d 906 (Ark. 2000) (due-process concerns and void judgments principles)
Swagger v. State, 296 S.W.2d 204 (Ark. 1956) (void judgment where absence of due process)