*1 513 overrule We take the explicitly Leipzig, Daley, opportunity opinion.3 Pinckney conclusion, hold the we Pulaski Circuit Court County without Commission from
was jurisdiction enjoin wholly 25.09, and reverse and its therefore dismiss enforcing regulation December order from trial court’s 8 Commission preventing its regulation. enforcing
Damien ECHOLS v. of STATE Arkansas Wayne CR 99-1060 467 Court of Arkansas Supreme 26, delivered
Opinion April of denial [Supplemental opinion rehearing 7, delivered 2001.*] June Const, We also note that Arkansas voters Ark. amend. 80 at the Novem approved general ber 2000 election. This which shall effective amendment, 1, 2001, become on July original jurisdiction circuit justiciable courts will be “the trial courts of all of Const, assigned” matters not otherwise the Constitution. See Ark. amend. Section by 6(A). 6(B) Under “[s]ubject amendment, Section of the superintending to the control of the judges Court, the of a circuit court subject divide that circuit court into Supreme matter may circuit within the circuit divisions, sit in division.” issued This court any may Order we 6, 2001; order, Administrative No. 14 on in that directed that circuit April judges judicial subject-matter following circuits “shall establish the in each divisions judicial juvenile, criminal, circuit: civil, and domestic county relations. The probate, designation judicial of divisions is for the management administration and caseload purpose subject-matter and is not jurisdiction.” for the 1(a), Admin. Order No. purpose § (2001) (per curiam). Ark. judges The circuit are to submit their administrative plans this court 1, 2001, and this court is to or those approve disapprove plans July June 2001, in order that the be 2002. SeeAdmin. Order No. plans may implemented by January 4(a). 14, § * Glaze would grant. dissenting See at 522-C. J., opinion *3 Mallett, L.L.P., A. for & Edward appellant.
Mandell
by:
Wright,
Gen.,
David R.
Sr. Ass’t
Mark
Att’y
Pryor, Att’y
by:
Raupp,
Gen.,
Gowen,
Gen.,
Ass’t
for
R.
Att’y
appellee.
James
Jr.
L.
Damien
Appellant
Wayne Echols
Justice.
Corbin,
ALD was
Baldwin and
charged, along
Jason
Jessie
DON
with the murders of three
Michael
Misskelley,
eight-year-old boys,
Moore,
Branch,
Steve
that occurred on
Christopher Byers,
5, 1993, in West
was convicted of one
May
Memphis. Misskelley
count
murder and two counts of
first-degree
second-degree
murder and was sentenced
life
and a total of
imprisonment
forty
This court affirmed his convic
years’ imprisonment, respectively.
tions and sentences in
Misskelley
denied,
cert.
file a Rule 37 on or after March 1997. See Rule petition 37.5(k). Echols became to file a initially eligible petition January 13, 1997, the date that this court entered the mandate his following direct This court Echols’s motion to subsequently granted the mandate so that stay he could the Court for a petition Supreme writ of certiorari. The Court denied certiorari on 1997. May Thereafter, 2, 1997, this court the reissued mandate. June are Rule claims governed by Echols’s postconviction Accordingly, 37.5. is held on that when a hearing 37.5(i) part Rule shall, within sixty (60) days “the circuit
the petition, fact written of make of the hearing, specific conclusion issue raised to each factual petition with respect to each issue raised by law with legal conclusions of respect written Effec from the “Arkansas was This adopted provision petition.” Ann. 16-91- of 1997.” See Ark. Code Death Act tive Penalty § that “the shall make 1999) spe 202(h)(1) (requiring (Supp. state the fact and shall expressly cific for to each issue raised law petition conclusions of relating not been this court has relief’). Although squarely post-conviction Rule has 37.5(i), with apply opportunity presented of that and intention addressed provision. spirit 691, 1 (1999)1, In Wooten the effective date of to death had been sentenced prior appellant Thus, were his governed by Rule 37.5. postconviction proceedings trial court erred in that the Rule 37.3. On argued a This court did not reach the his without hearing. denying petition issue, that the trial court’s order was as it concluded merits of that decision, this court under its 37.3(a). insufficient Rule reaching 37.5: considerations behind Rule reviewed the policy 1997, now codified at Ark. 37.5 evolved from Act 925 of Rule 1999), where the General Code Ann. 16-91-201 -206 (Supp. §§ noted that the intent Assembly expressly is to the Act comply state-court review. See section a law instituting comprehensive federal 16-91-204; (1998) Porter v. is to eliminate the state review curiam). meaningful (per purpose of Thus, in death cases. Id. need habeas corpus proceedings multiple federal where a Rule 37 is denied on petition procedural “in death cases be exercised to assure that the denial care should grounds, great 188-89, at S.W.2d at 185. Though rests on solid footing.” Id. does not his govern Wooten received the death Rule 37.5 penalty, review, effect after he became eligi as it came into 37.2(c). 37.5(k). under See Rule ble to file a Nonethe rule less, intent and purpose we believe that reinforces *5 1 Thus, after the order was entered in this case. 1999, Wootenwas in October decided holding. of that the trial court did not have the benefit 518 the trial make conclu- court to written and responsibility findings
sions law each issue raised in the on petition. 695-96, at added). Id. at 1 S.W.3d 10-11 (emphasis The that State contends Wootenis because the distinguishable, Here, there order was and contained no factual conclusory findings. contrast, the trial court made and written conclusions in on some of the issues raised in Echols’s con petition. tends, therefore, that Wooten does not in remand this require Rather, the State asserts that it instance. was Echols’s obligation obtain on remainder of the raised in issues his rulings petition. State, 70, The State relies on the cases of Beshearsv. 340 8 Ark. State, 701, 32 v. Matthews (2000), 333 Ark. 970 S.W.2d in curiam), 289 which this that (1998) court held where the trial (per some, all, court makes but not of the issues specific findings raised is defendant obtain up petition, rulings omitted The failure do issues. so renders those issues proce barred from consideration durally with the State’s assertion that the in disagree holdings
Beshears Matthewsare
in this case. In the
controlling
first place,
neither of those cases involved
had
who
been sentenced
appellants
court,
Court,
to death.
like
This
has
that
Supreme
recognized
cases,
are different from
cases
other criminal
due to
death-penalty
the obvious
finality
See,
v.
punishment.
e.g., Gregg Georgia,
State,
U.S. 153
428
AmericanCivil Liberties
v.
(1976);
Union
339 Ark.
314,
State,
181,
v.
S.W.3d 418
Franz
(1999);
754 S.W.2d
Robbins,
379,
on other
State v.
(1988),
grounds,
modified
In the second Beshearsand Matthews were decided place, under Rule which differs from the 37.3(c), considerably language Rule 37.5(i). 37.3(c) that the trial pertinent part court “shall the issues make determine of fact and conclusions of law thereto.” Under respect added.) (Emphasis rule, has the ultimate to determine authority
519 in a written on 37.5(i), addressed order. Rule must be what issues hand, that the a more duty, mandating exacting the other of fact with to each written findings respect court “make trial specific written conclusions the issue raised by factual issue raised to each by petition.” (Emphasis law with legal respect Thus, determines the 37.5(i), under Rule petitioner added.) the trial court in a written order. that must be addressed by issues Wooten, 691, Furthermore, Ark. 1 out in 338 as pointed of Rule 37.5 is 8, exacting requirements S.W.3d purpose of a defendant’s claims state-court review a to and, comprehensive provide therefore, eliminate need for multiple postconviction State, 613, Ark. 37 also v. 343 actions in federal court. See Jackson a that Rule 37.5 595 (2001) (holding requires heightened S.W.3d Thus, to review of issues of death cases). standard of review deny basis, without first on a raised in death cases procedural purely the denial rests on solid care to assure that footing, exercising great thwart that would clearly purpose. death, sum, Echols has been sentenced to we because the trial court for of a written order in
remand this case to
entry
and this court’s
Wooten.
37.5(i)
holding
compliance
limit, however,
remand to
the trial court’s duties on
making
raised
as to the issues
conclusions only
factual findings
legal
but not
claims raised below
argued
as all other
Echols
State,
v.
343 Ark.
See,
Hale
considered abandoned.
are
e.g.,
671,
State,
62,
Ark.
916 S.W.2d
v.
323
Here, the trial court found Echols failed show either and failed bias or therefore his burden. On prejudice carry Echols does not that the trial was biased or argue judge Instead, him. prejudiced against contends that trial judge should have recused because of the conflict between the alleged role trial and role as his as a judge witness at the potential Rule 37 This is insufficient to overcome the proceedings. allegation State, that the trial See, is Wallsv. presumption judge impartial. e.g., State, Gates v. (2000); Ark. S.W.3d 40 We thus affirm the (1999). trial court’s on this ruling issue.
Affirmed in reversed and part; remanded in part.
Glaze, dissents. J.,
HANNAH, concurs in dissents J., in part; part. HANNAH, Justice, in concurring in part; dissenting part. The court remands case this to the court to make JIM written factual conclusions as issues raised legal by Echols in his Rule 37 While I that the petition. trial court agree fact, must make of and must also expressly state the conclusions of law to each issue raised relating in the I do not that the trial petition, court in case agree this failed to meet each burden on issue raised Echols. every Specifically, the trial court made and conclusions of specific findings law on the assertion the trial should have recused because he presided trial, over the criminal on the issue of the bite marks as new evidence, and on issue of a biased The trial court should jury. not have to revisit these issues.
GLAZE,Justice, dissenting. majority opinion reaches an absurd result this court’s own TOM construing 37.5, does. All criminal manner it P. rule, R. Ark. Cr. at or Rule 37 of law trial due afforded process must be defendants cases, defendants must raise in death-penalty but even proceedings, hear- trial or at obtain ruling their arguments must raise that defendants we have held on direct Even appeals, ing. trial, them later raise rather than waiting issues at constitutional See Nooner 37.5 in Rule proceedings. Ark. 8 S.W.3d Beshearsv. see also (1999); 32 (2000). 1997, codi- Act 925 of mentions While majority opinion Effective et the Arkansas 16-91-201 seq., Ark. Code Ann.
fied as §§ 37.5, Act, its as Penalty interpretation Death supporting fact, runs the court’s interpretation wrong. clearly intended and ends justice sought by counter to the directly clause: described Act 925’s as emergency General Assembly, the General Assembly It is and determined found out a sentence carrying State of that the current system Arkansas of death *8 in with endless state and fraught litigation is hopelessly federal the value the death and court which undermines deterrent penalty of resources, a burden on the state’s while imposes depriving needless financial death row the to obtain right inmates meritorious speedy any relief of added.) (Emphasis constitutional claims. Here, believed court’s where Echols the circuit was he if order insufficient or had the conclusory parts, duty, order, court’s dissatisfiedwith the trial to the trial court to request further its order to and conclu modify evidentiary findings provide 32; law. v. sions of See Beshears S.W.3d Mat To hold that a (1998).1 thews no to make such a defendant-petitioner longer required request to stand mute at a only encourages defendant-petitioner Beulah v. State, CR00-144, case of delivered Compare today’s opinion April conflicting where this take a court seems to somewhat in another approach capital under argued 9-27-318(g) There, that, murder case. Beulah the terms of Ark. Code Ann. § 1999), judge findings denying the have (Supp. trial should the transfer provided upon juvenile rejected argument and held it was unneces his case to Our court Beulah’s of court. findings. analogizing 9-27-318(g) to this 37.5, to remand for ARCP Rule additional § sary language contain in the Rule, court the statute does not Eke that which opined the circuit court written findings shall make of fact with each factual issue to respect raised the language While the identical in Rule 37.5 is not in 9-27- petition. § employed 318(g), statute’s judge, the the same terms duties of the circuit “the court require namely, findings make written all shall and consider factors listed in the [ten] [specifically] statute.” to he or objections and she have delay raising any may proceedings after an until Echols’s counsel was well aware what of filing he-had with the trial court’s but he never objections findings, mentioned them so the trial could address and rule judge on them. the When and the a record defendant-petitioner fully develop — at a Rule 37 there is no reason hearing, absolutely except quest — for to allow a to trial delay court’s order party complain insufficient. being Echols’s counsel knew the evidence introduced and, at the as the (or knew should have hearing, petitioner, known) the trial court could have additional or provided needed if evidence had objected petitioner only asked the trial to do so. judge
This and the record consists of more than 1800 pages. Both State and Echols evidence volumes of that bore presented lack detail the merits of the 46 issues raised (or merits) Echols’s Rule 37 Our court on review has evidence petition. ample before to decide all which It issues were below. properly preserved is an absolutewaste this time courtto send this casebackto the trial coverthe same evidence on the same issuesa second very bearing time. Echols’s majority opinion recognizes by admonishing fact that this counsel court’sremandis not to an be construedas opportunity or to new evidence raise issues.Such an admonition under- reopen scores that this court has sufficient evidence now before it to address and rule on Echols’s appeal. that, It is when this case is important reemphasize again court,
before the trial will be left to review same us; we record now have before he will the evi- merely transpose dence record add it to the listed in the already so, final order Echols’s After noth- judge’s denying petition.2 doing will have been initial ing decision. changed, including remand, Echols will want Predictably, the record to open *9 evidence, additional even his case has been produce though fully tried; the record is and further evidence is complete unnecessairy. Echols, Because of at the conclusion today’s majority opinion, remand, will no have to inform the hearing obligation trial court whether he is satisfied with the new findings. Thus, this court can a future for another yet expect, again, request and remand based on “new” the trial court’s allegations judge, view, The trial should counsel for him both my request parties present with judge of fact and of law conclusions so the can comply 37.5(i). with the time set constraints out Rule
522-A which fails can be More delays expected, insufficient. are Act. Echols has Effective Death Penalty Arkansas’s to comport to raise counsel, a fair and an opportunity hearing been afforded short, he has chose, ones. In constitutional including issue To allow a defendant- due constitutional process. afforded been hold the and to mute at a Rule 37 hearing to stand petitioner address, he was never asked on issues that erred presiding Even counsel. needless delays gamesmanship fosters only such an abuse of the judicial should not cases permit death-penalty system. and sufficiendy the record is developed
Because I think fully case, without decide this case I would the merits of reach further delay. DENIAL OF OPINION ON
SUPPLEMENTAL REHEARING 7, 2001 June *10 522-B A, L.L.P., Mallett,
Mandell & Edward and Alvin Wright, by: for Schay, appellant. Gen., Mark Pryor, David R. Sr. Att’y Ass’t by: Raupp, Att’y
Gen., and Gowen, Gen., R. Ass’t Jr., for Att’y appellee. James CURIAM. has filed a rehearing case, this court an committed error of claiming PER
522-C the trial court to make this case for specific it remanded law when but as to the issues R. Crim. P. 37.5(i), only under Ark. findings that it is inconsistent for this The State asserts raised on appeal. Echols on are the issues not raised by hold that court to remand, to hold that the issues raised while on refusing abandoned below, are not ruled on on but not procedurally specifically words, the claims that Echols’s refusal to In other barred. issues after the to his on hearing equates obtain particular rulings issues abandoned those below. disagree. having whose burden it fails recognize The argument State’s in a death case. under Rule 37 Clearly, is to make factual findings burden is on the shoulders of the 37.5(i), Rule placed squarely of fact and conclusions trial court to make written findings specific raised in the As out in clearly of law on each issue petition. pointed decision, of such an the reason behind exacting our adoption a and state- is to enable meaningful comprehensive requirement issues in death cases. Under Rule court review of postconviction 37.5, issues he the defendant is allowed to raise as as chooses many that and death sentence were that demonstrate his conviction may raised, obtained. the issues are Once unconstitutionally illegally whether a the trial court then must make a determination is hearing of whether a Rule is 37.5(h). See necessary. held, however, Regardless hearing — to make the trial court’s is the same duty specific law on each written of fact and conclusions of issue raised findings is not The trial court’s lessened duty petition. his claims defendant’s failure or fully expand upon develop This would result addi during hearing. effectively placing are under tional burdens on those defendants who given hearing the rule. contrast, the trial no role in which In deciding plays Instead, will
issues the defendant or raise may appeal. issues of defendant makes a conscious choice as to which alleged defendant raise all error he wants to appeal. may pursue below, or he choose to issues decided him may pursue only against however, choice, When he makes that he has some of those issues. waived consideration of the other issues not But effectively pursued. is not one that is done or this waiver inadvertently accidentally; Thus, rather, it a choice that is made is not so it is deliberately. bar, much a as the State asserts. procedural said, That there come a time when this court is being may court’s failure to make with a claim that the trial presented issue, on each as under conclusions required 522-D 37.5(i), interfered the defendant’s to choose ability he would which Stated another issues pursue appeal. way, issue, that without on each may defendant argue ruHngs impos- which be as rulings sible to assess error on may assigned case, this court would
such a have remand for the trial likely court make on all the conclusions issues raised in the here, however, That is not as Echols made necessary no petition. to this court. such argument we the State’s There is
Accordingly, deny noth petition. inconsistent this court’s would rehear ing opinion require *12 event, if In were to any grant ing. would be rehearing, no better off than it is now. see no benefit to anyone order the trial court involved to to make and conclusions each individual claims raised forty-six his Echols in as has petition, chosen which issues to already short, there reason is no pursue grant this case and belabor further. any J., GLAZE, dissents. main Justice, concern dissenting. My regard- GLAZE, ing this rule, court’s of its interpretation own Ark. R. T OM Crim. it 37.5(i), P. is that substantial portends delays death- countenanced, cases. Such should not
penalty delays be since they to the run counter defendant’s ato trial. While the right speedy on the majority opinion Arkansas Effective Death appears rely decision, Act of 1997 to court’s General Penalty support the Act because Assembly emphasized passed Arkansas’s system out a death sentence had been carrying hopelessly fraught endless in state and litigation federal court. undermined system value deterrent of the death a needless penalty imposed resources, financial burden the state’s while death-row depriving inmates of to obtain relief on right meritorious speedy constitutional claims. This court’s rule its and the interpretation Arkansas Effective Death Act insures that only extended Penalty trials and will continue in the future. Such a delays result is adverse meritorious interests. everyone’s