*1 DEFENDER ARKANSAS PUBLIC COMMISSION COURT, CIRCUIT The Honorable GREENE COUNTY N. Circuit Judge, Presiding Fogleman, John CR 00-452 S.W.3d Court of Arkansas Supreme delivered December Opinion *3 Gen., Mark Hansen, Pryor, Dennis R. Att’y by: Gen., Ass’t Att’y for petitioner.
Gill, Elrod, Owen, Skinner, P.A., Sherman, & Ragon, Drake by: Mann, for respondent. The Arkansas Public Defender Com- TOM Glaze, Justice.
mission this court for a writ petitions of certiorari to Greene Circuit County him Judge Fogleman, to set directing John 15, aside an order entered March the requiring Commission to the fees for pay attorney’s counsel representing in his prisoner under postconviction Ark. R. Crim. P. below, 37. For the reasons set out we the Commission’s grant petition.
The facts William to this situation are as leading up follows. Skiver was Wesley convicted of aggravated on robbery September 29, 1995, and sentenced to life in as a habitual offender. The prison court in affirmed this Skiver by and sentence were conviction filed a se Skiver then S.W.2d 931 (1999). pro 10, 1999, relief; on April for subsequently, postconviction petition Daniel Stidham to attorney Paragould Fogleman appointed Judge filed an Stidham in his Rule 37 Skiver proceedings. represent at a hear relief and for appeared amended petition postconviction behalf, the claim of but the trial court rejected on Skiver’s ing on 1999. Stidham assistance of counsel September ineffective 16, 1999. this decision on November filed a notice of from appeal court a filed with the circuit peti- December Stidham On fees, award him that the court award of asking tion for an attorney’s 7, 1999, $4,715.00 December his of Skiver. On representation Defender the Arkansas Public entered an order directing court however, $4,715; Stidham requested Commission pay with a of the was never served Commission copy petition for cita- fees. December Stidham filed a On petition had violated the Commission tion of contempt, alleging his fee. Fie asked court’s order Judge Fogleman paying Director, Didi and its Executive issue an order for the Commission cause should not be held to show why they contempt. Sailings, filed a to the court’s order on The response 11, 2000, it asserted that there was no statutory in which January fees of attorney’s Commission’s authority payment supporting *4 The Commission further that sover- a Rule 37 rejoined petition. the from it to bear the finan- barred court ordering eign immunity in the of fees. cial burden inherent On attorney’s January payment 2000, 14, the filed a motion to set aside the circuit Commission 21, order, which court set aside on court’s December 7 the January 2000. 2000, 31, fees on filed another for January
Stidham
request
was
for the
that the Commission
alleging
responsible
specifically
of
He
his second
on Ark. Code
his fees.
request
payment
premised
Ann.
which
when
16-87-210(a)
1999)
(Supp.
provides
pri-
§
vate
are
an
and
attorneys
represent
indigent person
Commission,
the
the
“shall” be
the
authorized
attorneys
paid by
by
that it was
The Commission
once
Commission.
responded
again
Arkansas Public
Com-
not liable for Stidham’s fees. It cited
Defender
233,
Burnett,
53
civil
to make
fees in
cases
constitution
payment
attorney’s
an
The circuit court nevertheless entered
order
added).
(emphasis
2000,
that,
Burnett,
15,
the
March
of
on
finding
despite
holding
be
Stidham’s fees.
Commission should
responsible
The
filed a
for writ of certiorari with
petition
14, 2000,
on
that the circuit court
this court
acted
April
contending
without
the March 15 order because
wholly
jurisdiction
entering
which neither
Commission nor the Gen-
sovereign immunity,
waived,
had
of
eral
such an
Assembly
precluded
imposition
issue,
directed
to file
order. This court
both
briefs on
parties
4,
which was
on
done
2000.
August
A writ of certiorari lies to correct
erroneous
on the face of the record where there is no other adequate remedy
and is available to this court in exercise of
control
superintending
over a tribunal which is
where no other mode
proceeding illegally
315,
of review
been
v.
has
855
provided. Lupo Lineberger,
manifest, clear,
A
S.W.2d 293
demonstration of
plain,
abuse of discretion is essential before
will
this court
a
gross
grant
for writ of certiorari. Meeks v.
341 Ark.
petition
S.W.3d 25 (2000)
Foremanv.
317 Ark.
(citing
S.W.2d
853 (1994)). These
when a
claims that
principles apply
petitioner
the lower court did not have
to hear a
or to
jurisdiction
claim
issue
a
Arkansas Public
particular type
remedy.
Commissionv.
Defender
Burnett,
340 Ark.
HVACR Licensing State, is one the that the action against the show Where pleadings waived, trial court no the acquires is and immunity sovereign Staton, 942 804 S.W.2d See State jurisdiction. of the with an State agency a suit is brought against Where the state in the to some matter which agency represents relation record, is not a of and the though party action and liability, for the would in interest so that plaintiff the real judgment party or the State to of the State to control the action subject operate is, effect, is the the one State prohib action against liability, Burnett, 237, 12 at Ark. at S.W.3d ited the constitutional bar. by 193. the have held that State’streasury
We also tapping and violate will render the State a defendant of damages payment Id. Unless immunity the of immunity. sovereign sovereign principles waived, the State. is the doctrine imposing liability upon prohibits two to the doctrine sovereign Id. We have recognized exceptions the where the is 1) seeking State immunity: moving party specific relief; the has created a and where an act of 2) legislature specific waiver of Id. order Stidham’s attorney’s immunity. Clearly, an act that will the State’s fees be the Commission is tap paid by Thus, relates to the this case treasury. presented by question of the mentioned: Has the General Assembly second exceptions just for the Public Defender created a waiver of immunity specific circuit that would enable the court to order Com in a civil mat fees for counsel mission pay attorney’s ter? The answer is no. held in the Burnett case that the Commission
We explicitly There, in civil we is not fees matters. responsible made the statements: following in Ark. Ann. 16-87-
The duties of the Commission
Code
§
are stated as follows:
1999)
(Supp.
defender in each
district shall have
judicial
The public
duties:
following
(1909),
sovereign State cannot be
Pitcockv.
sued own expressly except by 535). (citing Ark. at 91 Ark. at Grine, Pitcock, this State.”
55 by the district as determined within Defend (1) indigents or circuit, chancery juvenile, probate, city, police, municipal, misdemeanor, juvenile, guardi- felony, district in all courts in the cases, by all traffic cases punishable mental health anship, incarceration, by contempt proceedings punishable and all incarceration^] waivethe Commission’s intentto is no declaration legislative There that the Commission is thereany requirement immunity, nor
sovereign in civilcases. attorney’s haveresponsibility fees for added). 12 at 194 Ark. at S.W.3d Burnett, (emphasis 340 in the instant Burnett, the circuit court the holding Despite be for that the Commission should responsible determined case The court’s reasons for in this Rule 37 fees proceeding. is, doubt, without a a because “the Rule 37 so were petition doing . . . Rule 37 is a related to the felony underlying charge. proceeding Procedure, this Rule 37 of Criminal peti- Rules part [and] but is filed as a of the not filed in a civil case part tion was separate In as is evident its case number of CR-95-108.” criminal case that, addition, the statutes the trial court concluded because that the duties of the Commission public delineating provide case,” “in Rule 37 defenders shall felony represent indigent persons criminal, and the Commission should be considered proceedings therefore be the fees of an attorney should pay required circuit a Rule On 37 appeal, represent petitioner. appointed that this court has continues this and contends court argument, are civil that Rule 37 merely “parroted phrase” proceedings that is the case. The without why nature explaining adequately and that of the our case law circuit judge’s analysis simply ignores on this United States Court Supreme subject.
First,
we
out the
a
recognized principle
post-
point
amounts to a collateral attack
conviction
under Rule 37
proceeding
rendered at trial. Dodson v.
on the judgment
does
As a
Rule 37
(1996).
remedy,
postconviction
in the
a
the review of mere error
conduct
method for
provide
trial,
it
of the
nor does
serve as substitute
Sasserv.
appeal.
held that
We have
S.W.2d
repeatedly
in nature. This
has been
such
are civil
holding
defendant’s
most often in the context of a convicted
announced
her
counsel for his or
Rule 37 proceedings;
request
that,
we have
such
rejected
because
requests by
such
noting
pro
nature,
“are civil rather than criminal in
ceedings
there is
no
clearly
*7
constitutional
to
of counsel to
a
right
appointment
prepare petition
State,
221, 222,
under Rule 37.” Fretwell v.
290 Ark.
718 S.W.2d
State,
719,
109
See also Martin v.
340 Ark.
550
Brooks v.
(1990);
303 Ark.
The basis for our that holding postconviction proceedings are civil in nature can be found in the decisions of the United States Court. In Supreme v. Pennsylvania U.S. 556 Finley, (1986), Court considered entitled, whether an inmate law, was under state counsel in Court, The postconviction proceedings. stating following, held that ultimately no such entitlement existed:
We have never held that prisoners have a constitutional right to counsel when collateral mounting attacks upon their convic- tions .... Our casesestablishthat the right to appointed counsel extends to the first and appeal right, no further. . . . We think that since a defendant has no federal constitutional to counsel right when a pursuing on discretionary appeal direct review of his con- viction, afortiori,he has no such when right a attacking conviction that has since become long final upon exhaustion of the appellate process. . . . Postconviction is even removed thecriminal relief further from trial than is directreview.It discretionary is not the criminal part of and it is in proceeding consideredto becivilin nature.... It is a itself fact collateral attack that occurs normally after the only defendant has failed to secure relief direct through review of his conviction. States haveno obligation this avenue provide do, and when they of relief mandated the by Due ProcessClausedoesnot require fundamentalfairness that the States a as well. supply lawyer added; citations internal U.S. at 555-57 (emphasis Finley, omitted). Giarratano,
Likewise, in held 492 U.S. the Court Murray are not collateral constitutionally that (1988), proceedings “[s]tate to the state criminal serve as an adjunct required limited than either trial or different and more appeal.” purpose at The stated 492 U.S. 10. concurring opinion Murray Murray, in the Constitution or of this that “there is precedents nothing that a State counsel postconviction Court requires provide A is not the criminal part process postconvictionproceeding proceedings. action to overturna valid but is insteada civil presumptively itself, designed at 13 concur- (O’Connor, 492 U.S. J., criminaljudgment.” Murray, added). ring) (emphasis
In addition to our
that
longstanding pronouncements
nature,
in
are civil
there is the fact that it is the
Rule 37 proceedings
—
— the former defendant
who
the
bears
burden of
petitioner
in Rule 37 matters. See Seek v.
330 Ark.
proof
v.
S.W.2d 709
Helton
325 Ark.
924 S.W.2d
(1997);
matters,
Were Rule 37
criminal
the due
(1996).
proceedings truly
clause of the United States Constitution would
process
require
See,
Wilbur,
the
the burden of
v.
state bear
proof.
e.g., Mullaney
U.S. 684
that the
must
a
(1975) (holding
prosecution
prove beyond
fact
to
reasonable doubt
constitute the crime
every
necessary
seealso In re
Thus, it is clear that abundantly postconviction proceed matters, civil are distinct and from the crimi ings underlying apart matters, conviction. As civil these nal are not among Commission, the functions of the Public Defender enumerated by 16-87-306, Ann. Ark. Code for which the Commission is obli § above, to As noted this court held Burnett in gated pay. explicitly that there is no that the have requirement responsibil in civil fees cases. Because there is no statute ity attorney’s matter, the Commission to fees in a civil authorizing pay attorney’s the trial was without to enter an order command judge authority to so. it do ing matter,
As a final
we note that Stidham
that his
urges
without
violates
due
his
appointment
compensation
process
However, he raises this
without dis-
equal protection rights.
point
it,
a bare citation
cussing
to
This court
providing only
has
authority.
held that we
not
do
consider
repeatedly
error that
assignments
See,
are unsupported by convincing
FederalFin. Co.
authority.
e.g.,
Noe,
v.
335 Ark.
We also
out that Stidham is not
bereft of
point
completely
remedies; he
his claim
may
present
Arkansas
payment
Commission,
State Claims
which was created
method
provide
which claims
State
be
against
addressed while
may
preserving
the State’s
See
sovereign
Fireman’sIns.
v. Arkansas
immunity.
Co.
Comm’n,
State Claims
IMBER, concurs; Corbin, J., J., participating. Imber, I
ANNABELLE Clinton Justice, concurring. join in majority that the opinion circuit court concluding acted in excess of its jurisdiction its order entering requiring Commission to fees to Mr. pay Stidham. It is attorney’s abundantly clear from statutory provisions Arkansas governing Public Defender Commission that the Arkansas General has Assembly created a waiver of specific for the immunity solely payment fees for counsel who *9 appointed cases indigents defend punishable by incarceration. See Code Ann. Ark. 16-87-212(a)(l) § (“The Commission is authorized to for certain pay expenses regard- the defense of ing Ark. Code Ann. indigents.”); 16-87- § 213(a)(1)(A) with an (“Any offense person charged punishable by who be imprisonment desires to an represented by attor- appointed Ark. ney ...”); Code Ann. 16-87-306 (“The defender ... public § shall ... misdemeanor, in... all indigents felony, juvenile, [d]efend cases, and mental health all guardianship, traffic cases punishable by incarceration, and all contempt proceedings punishable by incarceration.”).
In postconviction under Ark. R. Crim. P. is no petitioner’s an appointed attorney longer representing indigent with person an offense “charged punishable by imprisonment.” n — — The the former defendant petitioner has been con- already Furthermore, by of to a term imprisonment. and sentenced victed relief, amounts to a collat which a petition postconviction filing conviction, the has of petitioner judgment eral attack upon under Rule 37. claims asserted any the burden assumed proving 239 (1996); Flaherty Ark. 924 S.W.2d Helton v. Thus, 167 (1988). petitioner’s is no defending in a Rule 37 longer attorney proceeding appointed incarceration,” instead but is in a case an indigent “punishable who bears the burden of an proving indigent petitioner representing under Rule 37. the claims reasons, that the has
For these I conclude General Assembly for the Defender created a waiver of Public immunity specific a circuit court to order the Com- that would enable counsel who mission to fees for pay attorney’s represent in the relief. indigents pursuit postconviction
K.S. v. STATE of Arkansas
00-553
Supreme delivered December Opinion *10 D. Stephen Ralph, appellant.