*1 order. The trial court then found that the General’s Attorney was the law and that was required opinion appellant register of the Offender Sex Child pursuant provisions Regis- tration Act of 1997. The trial court because he added that had resolved issue in an memo letter” to the “unsigned attorneys for the the order be issued prosecution should nunc appellant, tuncas of 1998. The order was entered on pro February July filed notices of this order the same day.
The issues whether the sexual sentence for abuse in the first degree triggered registration Sex requirements Act and Offender whether the Sex Offender Act constituted an ex law were not raised trial post before the timely accord facto record of the ing We hold proceeding. has preserved arguments appeal. Affirmed. M. II BOHANAN v. STATE of Arkansas
James CR 98-551 Court of Arkansas
Supreme delivered
Opinion February *2 Burnette,
Mark for appellant. Gen., Asst. Att’y Vada Winston Att’y by: Berger, Bryant, Gen., for appellee. Monroe Lavenski R. Appellant, James Smith, Justice.
Bohanan, II, of the Saline County the decision appeals relief under Ark. R. Crim. his Circuit Court denying petition and convicted for armed robbery was tried P. 37. Appellant 29, 1993, fifteen He and sentenced to years. appealed October conviction, the trial court. affirmed but the Court Appeals 94-227, (Ark. App. No. CACR slip. Op. Bohanan Jan. 6, 1995, filed, 18, March se then pro 1995). Appellant relief. Appel- entitlement alleging petition denied effective assist- that he had been lant contended principally he had He that his attorney, ance of counsel. alleged witnesses. retained, of seven failed any exculpatory subpoena of certain evi- did not seek exclusion his attorney He also alleged obtained by police. dence believed illegally entered trial without a order court denied hearing by petition of that denial before this 1995. review Appellant sought June court on reversed the trial court and March We remanded court’s denial did not make the case trial written as 37.3(a). Bohanan required by findings remand, trial court (1997). Upon made denied written in its again findings appellant’s denial order entered 1998. This arises from January that order. the State filed a brief on response, reply September
1998. The State then and received from this Court sought per- mission to file an additional belated brief. In second reply *3 dismiss, which a motion the was State the issues of reply, raises mootness and lack of relative to Bohanan’s appeal, that he was no “in under sentence of a contending longer circuit court” thus and was not entitled to relief under Rule 37.1.
The State makes these was arguments released from prison January approxi- two weeks of the mately trial court’s order on prior entry 28, 1998. contends in that January he is Appellant response indeed “in because he remains in the custody” legal custody Arkansas of Correction. Department
The threshold issue for this then is whether maintained Arkansas by of Correction of inmate is with “in paroled synonymous custody” Rule 37.1. contends is sufficient whereas legal custody the State contends incarceration is for the “in necessary to be met. The State is requirement correct. We hold that a petitioner seeking relief must be incarcerated in for the order rule’s remedies to be available to the petitioner.
Postconviction under Rule 37 are proceedings intended to avoid persons unjustly This rule being imprisoned.
enables the courts to correct a manifest As we have injustice. stated “Rule 37 is narrow remedy designed prevent wrongful incarceration under a sentence so flawed as to be void.” Williams 317, 320, Rule 37.1 (1989). states: sentence claiming A in trial, released, the original a new or to have to be or to have
right on the ground: sentence modified of the Consti- in violation (a) imposed that sentence state; or the United States or this
tution and laws of the sentence was without juris- that the court (b) imposing so; do or diction to in of the maximum sentence that the sentence was excess
(c) law; authorized attack; is otherwise to collateral
(d) sentence the sen- file a verified in the court which imposed may petition tence, that the sentence be vacated or corrected. praying concise,
(e) factually The will state nonrepetitive, which it is based and shall language, grounds upon specific handwrit- not exceed ten whether length. petition, pages will exceed thirty ten or will be clearly legible, typewritten, fine, fifteen with lefthand and right- lines words per page per hand of at least one and one-half inches and margins upper Petitions which are not in lower of at least two inches. margins with rule not be filed without leave of the will compliance court. added.)
(Emphasis
under sentence of
Rule 37.1
“A
*4
begins
petitioner
custody
that
are
a circuit court.
...”
It is
this rule’s provisions
apparent
“in
to such
who are
only
custody.” Appellant
applicable
persons
the term “in
contends
that
the
construction of
custody”
proper
include not
but the
of
would
only
custody
legal custody
Hence,
the Arkansas
Correction.
petitioner
and
be “in
could be a
such as
still
parolee
appellant
37.1.
We disagree.
held
that a
While we have never previously
precisely
peti-
relief,
be incarcerated to be entitled to Rule 37
such
tioner must
is
consistent with our cases
addressing
holding
clearly
Herred,
is
v.
332
The most recent case
State
touching
Herred,
241,
In
the
was
Ark.
371 The state contended the trial court lacked jurisdiction in the was not when was filed. We petitioner custody and did concluded have under disagreed Rule 37 because in the court was when petitioner considered the merits of his motion. We thus “in construed cus- that case mean incarcerated. tody”
Three recent other casesindicate in circumstances where not was no Rule incarcerated 37 petitioner actually physically State, relief 757, was available. In v. 330 Ark. 956 S.W.2d Kemp 860 we held that (1997), not entitled to relief under petitioner Rule 37 had where he been fined for aof only felony possession firearm no time and therefore “in jail was not receiving custody.” in a where case received a fine tur Similarly, illegal affirmed we the trial court’s key denial of relief. Edwards hunting, 137, v. 300 Ark. 777 City S.W.2d 583 In Conway, (1989). Edwards we stated “Pursuant to Ark. P. R. Crim. is relief available where a is prisoner . sentence of circuit court. . .” Id. at 137. case, State, the second recent v. Johninson court, S.W.2d 883 in dicta (1997), while with- discussing
drawal of a cited Malone plea, 294 Ark. guilty stated, S.W.2d 945 where we could (1988), “Rule 37 have but did not because that is applied confined use remedy court, who is in prisoner under sentence of the at were issue out on parties bond.” at 386. Later in Johninson. Johninson, stated, while Rule 37.1 the Court contrasting “While relief to Rule 37.1 is limited to incar- pursuant prisoners sentence, cerated under that is obviously contemplated by Rule 37.2 . . . .” Id. at 387. case,
In the recent third Mason S.W.2d 751 (1996), we denied a involving juveniles probation, motion to withdraw a and in a footnote guilty plea, referring stated, “Arkansas Rule of petitioners Criminal Procedure 37 ... is available are when These state- they custody.” *5 ments Court the above-cited by cases indicate we have viewed as a incarceration to Rule consistently prerequisite relief. a construc to Rule 37 also
The Commentary supports to make incarceration the rule that would requirement tion of states, clause of Rule It first of relief. “Implicit the granting relief extends is the notion eligibility here Rule n — n not, for persons to incarcerated example, only persons or who have received sus terms of have completed imprisonment sentences. pended that Rule 37 these argues
Despite precedents, appellant release him and cites from his conditional still language applies that states: “You shall remain Department legal of the Post to the orders Punishment Community sentence, until Prison Transfer Board discharged your of Correction until are returned to the Arkansas you Board.” also relies order of the Post Prison Transfer by Appellant it out that to distinguish by attempts pointing Kemp, supra incarceration, he had not been involved no whereas Kemp but remained in incarcerated “legal custody.” Appellant’s argu ments, however, and indeed crucial simi are The key unavailing. case and is that in both cases neither between this larity Kemp their case was heard relief was incarcerated when by party seeking contained in con this Court. The language boilerplate appellant’s does him “in ditional release keep 37, which we hold to mean incarceration. this Court to the federal also juris points it, habeas since our Rule 37 is after
prudence corpus, patterned for the effect of on his We acknowl petitioner’s parole appeal. but we decline invitation to
edge
appellant’s
adopt
parallel,
Arkansas,
mootness.
In
an issue
federal habeas standards for
becomes moot when
rendered would have no
any judgment
prac
Quinn
v.
tical
effect
then
controversy.
upon
existing legal
Products,
Ark.
386 (1998);
Webb Wheel
976 S.W.2d
Stilley
McBride,
(1998); Pennington
merits of his ineffective-assistance claims.
Affirmed. concur. Brown, JJ.,
Glaze
Tom Glaze, I with the Justice, agree major- concurring. but would the clear lan- emphasize introductory ity, R. of Ark. Crim. P. which establishes the guage parameter — of the Rule under sentenceof a custody to he released.. . . This court has claiming right clearly out that the pointed “Scope Remedy” proceedings under 37 is Rule to of sentence prisoner, custody confined State, a circuit court. Malone v. 294 Ark. Burkhart v.
(1988);
271
Robert L. Brown, Justice.I cannot L. Brown, Justice. that our recent cases that touch and concern Ark. gree R. Crim. P. 37.1 indicate that is a physicalcustody prerequisite for relief. is so This even petitioning though 37.1 merely uses the term and does not between “custody” distinguish legal physical custody. mindful, however,
I am that in this case where is the issue, the order of conditional release makes reference fact Bohanan, that the is still in This would respondent, custody.
be sufficient
relief in the
federal
sys-
tem. The federal courts have
the term
universally interpreted
used
as
in 28 U.S.C.
“custody”
2254
and as
broadly
synony-
§
mous with restraint of
as
to actual
cus-
liberty
opposed
LaVallee,
See,
tody.
e.g.,
U.S.
(1968) (release
Carafas
under fed
the court
does
deprive
prisoner
State supervision case of a concerns me is the What hypothetical conviction is the mandate his is on when affirming parole he cannot file a issued. In today’s opinion, light is revoked more than sixty days relief. And if incarcerated, issued, his time for and he is after the mandate is P. Ark. R. Crim. 37.2(c). will have See elapsed. filing petition Thus, This he is remedy. appears deprived unfair. be fundamentally course, But it does not affect Bohanan.
This problem, revisit that it well be time for this court to suggests may in mind. bearing problem KAY,
MARY INC. v. ISBELL Janet S.W.2d 90 98-489 98-1099 Court of Arkansas
Supreme delivered February Opinion