*1 55 Crabtree, Terry for appellant. Clark, Gen., Eberhard,
Steve DavidB. Att’y by: Asst. Att’y Gen., for appellee. Justice. This is an from the trial court’s Glaze, appeal
Tóm denial of the appellant’s petition for relief without an evidentiary hearing. Clifton Appellant Stanton was convicted of murder in the degree first and was sentenced to forty (40) years imprisonment. conviction, He did not appeal his but he filed a timely Rule 37 petition alleging among other things ineffective assistance of counsel.
The appellant failed to abstract the court’s order denying his Rule 37 and the petition, state did not provide supplemental This court has abstract. held that the judgment decree appealed from an ordinarily essential of the component abstract. Brown v. 298 Ark. 767 S.W.2d (1989); 313 Davis v. Wingfield, 759 S.W.2d 219 Because the appellant order, has failed to abstract the trial court’s we affirm pursuant Ct. Sup. 9(e)(1). R.
Affirmed.
Jonas Hoten v. STATE WHITMORE of Arkansas CR 87-168 S.W.2d 266 Court of Arkansas
Opinion delivered May *4 Allen, O’Hern, Arthur L. Allen & for appellant. by:
59 Clark, Gen., Miller, Gen., Steve Clint Asst. Att’y by: Att’y for appellee. Petitioner, Whitmore, Glaze, Justice. Hoten
Tom Jonas seeks post-conviction relief to Rule 37 of the Arkansas pursuant Rules of seeking Criminal Procedure. relief before this While court, Whitmore sought also to intervene as next friend the case State, 89-45, of Simmons v. argue CR so Whitmore could certain constitutional issues concerning whether Arkansas is required cases, hold reviews in all appellate those where including court, the convicted defendant waives such review. finding This Simmons, Whitmore had no to intervene on behalf standing denied his promptly The United States Court request. granted Whitmore’s for certiorari after our subsequently petition denial his motion. court also the execution for stayed date Ronald Gene Simmons.
The Whitmore and Simmons cases are further exam of a ples chain of Arkansas cases that reveal how the state and judicial federal have systems permitted applications post- conviction get remedies to we out control. our action By today, intend to limit or narrow abolishing relief post-conviction Criminal Procedure Rule 37. As the United States Supreme Court said Pennsylvania v. S. Ct. Finley, (1987), 107A 1990 are obligated states relief provide after the defendant has failed to through secure relief direct review of his abolishing conviction. By Rule a defendant still may — petition for a writ of habeas a narrower than corpus remedy — Rule 37 but our action will at least curtail some of the abuses that result from the inconsistent meritless claims that petitioners lodge under the broader relief under afforded Rule 37.1
jurisdiction.
of whether the
Ark.
of the maximum
under
imposing
of the Constitution and
[1]
578, 346 S.W.2d
sentence of circuit
Arkansas
sentence was without
Blevins
commitment
courts
authorized
v.
Norris,
have
laws
*5
Criminal Procedure Rule 37
court,
(1961);
held
valid
jurisdiction
who
law,
that habeas
Ark.70, 722 S.W.2d
on its face or whether
allege: (a)
United
or
ex rel
(d)
to
States or
do
corpus petitions
Attorney
that
so;
the sentence is otherwise
or
(c)
[573]
sentence was
provides
Arkansas;
General
(1987);
convicting
are restricted to
a
sentence
remedy
or
Mitchell
Auten,
imposed
(b)
court had
that
was in excess
v.
State,
subject
prisoners,
questions
the court
violation
proper
[233]
to
in the
his intervention
Rule 37
here and
Whitmore’s
petition
case,
Supreme
in the United States
now pending
Simmons’s
—
—
an absurd one
Court,
albeit
one of the
depict only
problems
an end to criminal
bring
to
that the courts face when attempting
and
appellate
into the procedural
cases once
are launched
they
now before
petition
maze. In his
post-conviction
because,
trial,
us,
did not receive a fair
Whitmore claims that he
ineffective. In support
his trial
was
among
things,
attorney
other
trial counsel failed to present
his
he contends his
argument,
had a diminished capacity
available evidence that Whitmore
lengthy
to his
he killed his
Whitmore also points
when
victim.
his alcoholism and incest
as well as to
history
psychiatric
sum, Whitmore
In
family.
sexual abuse that occurred in his
Whitmore’s
made no use of
objects
psychiat-
that his trial counsel
or
guilt
as to his
ric evidence to show either diminished capacity
Further, Whit-
at the
mitigating
penalty phase.
circumstances
his petition
he
insane. In pursuing
more contends that
is presently
Court,
makes no
Whitmore
before the United States Supreme
in this court and
of his pending petition
mention whatsoever
he asserts in the petition.
diminished
claims that
capacity
or
a diminished capacity
psychi
if Whitmore has
Obviously,
to intervene in behalf of
standing
atric
how can he have
problem,
(1966),
Supreme
Rees v.
61 is to we judicial system maintain its can ill afford to integrity, such a willful and of permit improper manipulation post-convic- tion procedures by a defendant.
Unfortunately, other
of our
abuses
remedies
post-conviction
continue to occur besides the one we have here. In our recent case
State,
131,
Robertson v.
(1989),
of
298 Ark.
Finally, burgeoning number of post-conviction filed petitions defendants which not increase by only reflects in the number of inmates in recent also the years, but defendants’ increased filing awareness have to lose such they nothing by cases, In most this court petitions. dismisses these petitions Nonetheless, because the claims or are most allegations meritless. of these petitions will be filed in habeas form with the federal and courts will be once those In this disposed again by courts. that, respect, state General’s office as of Attorney reports 3,1989, May there were 358 for writs of habeas corpus petitions in had re- federal district courts to which the state pending course, Such are decided the federal sponded. petitions, court. his state remedy the inmate has pursued court until after Meanwhile, state this petitions the number of Rule 37 petitions As of 108 Rule May continues rise. *7 1, January since filed in this court se motions have been 162 pro the same of 1988, to and for petitions, period and in addition those 1,910 from time, has letters legal this court’s staff answered another, inmates, are, seeking in form or some generally who only forty-three this court handled By ofway comparison, relief.2 1983; that same year, of year Rule 37 the entire petitions the to 900 inmate letters. court approximately responded and of
Having
years
experience
now benefited from
claims,
recognizing
we abolish
reviewsof
Rule
post-conviction
to
the
has served
cause
how this state’s
Rule
post-conviction
of
to
an interminable process,
review criminal convictions become
as
court
justice,
than
the
of
this
system
rather
to improve
37,
In
Rule
re:
intended
such remedies.
originally
by adopting
Procedure,
609,
Now, Rule we turn to merits of Whitmore’s 37 petition. In found guilty by jury capital felony Whitmore was and are These pending figures in do not include the post-conviction petitions the state trial courts. that have been filed with
murder in the 1986 We stabbing death of Essie Mae Black. Whitmore v. affirmed,
(1988), now Whitmore seeks relief pursuant to Rule 37.
Petitioner first alleges that he was not afforded the effective assistance of guaranteed by counsel the constitution and laws of the United States the guilt and this state either penalty of his phase determining bifurcated trial. When whether counsel, there was effective assistance of this court evaluates the claim according the criteria set out the United States Strickland, Supreme Court Strickland Washington. In Court held that benchmark for judging claim ineffec any tiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial that the trial court process cannot be relied on just as having produced a result. criteria *8 to a apply guilt as well as the sentencing proceeding phase of the trial since the is like a trial in its proceeding sufficiently adversarial format that counsel’s in the role proceeding comparable counsel’s role at trial. To ineffective assis prove standard, tance of counsel under the Strickland the petitioner must show that counsel’s deficient in was that performance counsel made errors so serious that he was not as functioning the Second, “counsel” guaranteed by the sixth amendment. the deficient performance prejudice must resulted in so pro have nounced as to have the of a fair trial whose deprived petitioner outcome cannot be relied as just. showings on Both are necessary before it can be said that the conviction or death sentence resulted from a breakdown in the renders the adversarial that process result unreliable.
There is strong a that counsel’s conduct presumption falls range within the wide professional of reasonable assistance. The petitioner has the of overcoming burden that presumption by the acts and of identifying omissions counsel which when viewed from counsel’s the have been perspective at time of trial could not the of result if reasonable Even counsel’s professional judgment. unreasonable, conduct is shown to be the judgment professionally stand, must unless the that the error had petitioner demonstrates a effect A prejudicial on the actual outcome of the proceeding. that, reasonable the result of probability but counsel’s conduct different, the would have is a proceeding probability been v. Strickland confidence the outcome. sufficient to undermine (1984); Pruett 466 U.S. Washington, ineffective counsel was first contends that Petitioner had been trial that he his guilt counsel elicited in the phase twenty years than felony more convicted of violent previously testimony elicited object when the state before and also failed more than forgery convicted of that he had been previously that under Rule argues before trial. Petitioner twenty years the evidence Rules of Evidence 609(b) of the Arkansas Uniform guilt the been inadmissible in of the crimes would have prior guilt of the phase Petitioner concludes that the outcome phase. about had known jury would have been different probably the prior convictions. was conclusion. There
We do not with agree petitioner’s the victim and stole overwhelming evidence that killed petitioner considered, it her When the evidence money. totality that the probability cannot be said that there was a reasonable guilt in the had phase have reached a different verdict jury would it not known convictions. prior conviction, inquire did not prosecutor
With to the respect Although obtained. as when the conviction was forgery more than now conviction was argues forgery petitioner was for the old and of it not admissible twenty years proof 609, there was evidence under Rule purposes impeachment had been convicted of admitted which indicated that petitioner *9 in 1979 was revoked in California and that his forgery probation of the on of evidence charge. impeachment, that For the purposes as not more California conviction would have been admissible release from the than ten had since years elapsed petitioner’s imposed confinement the conviction. have ob
Petitioner next asserts counsel should of the jury to the jected in the to the submission penalty phase was commit murder aggravating capital circumstance that effecting ted arrest or an for the of or purpose avoiding preventing underlying He that because the escape from reasons custody. one of the charge robbery of the murder was and felony capital committing of theft elements of is that “with the robbery purpose em- or resisting immediately person thereafter apprehension
65
another,”
or threatens
ploys
to
force
employ physical
upon
element of “resisting
thereafter” was
apprehension immediately
and that
at
of
duplicated
such
the time
duplication
petitioner’s
trial was
Collins v.
prohibited as “double
under
counting”
Lockhart,
(8th
1985).
In a second attack on the aggravating circumstance that the capital murder was committed felony for the purpose avoiding arrest, an preventing petitioner argues that aggravating’ circumstance is and We vague overbroad. have State, rejected this Hill v. argument, 644 S.W.2d therefore, 282 (1983); counsel could not have ineffective in been to raise a failing meritless question.
Petitioner raises an additional claim this court which has settled: that already there is an impermissible unconstitutionally between the and overlap murder statute the first felony degree murder statute. He concedes that this court has ruled that such defective, an Ruiz & Van overlap not constitutionally Denton v. (1981), and states that the issue is again raised in this it preserve petition merely review federal court.
Petitioner also raises two related allegations ineffective assistance of counsel: counsel ineffective that counsel (1) was failed present available in the guilt evidence phase peti- tioner’s diminished counsel was ineffective in capacity; (2) *10 that counsel failed to in the evidence of present phase any penalty mitigating circumstances. allegations Petitioner supports statement in the opening counsel said (1) with contentions that did not have crime but committed the probably that petitioner for capital a conviction to sustain mental state required requisite great murder, competence of his making thus the question trial; outlining the records (2) of the to the outcome importance available; (3) history a were history his lengthy psychiatric available; was there (4) was family abuse and incest in his sexual out; and brought have been which could a of alcoholism history which custody he was in while he had made statements (5) also Petitioner reality. with that he was out-of-touch suggested by contacted were not father and four children mentions that his could have they evidence mitigating counsel to learn what willingness its The state expresses in the phase. presented penalty court on the in circuit be hearing permitted that an evidentiary allega- to the in respect counsel was ineffective issue of whether has met his that petitioner but we do not find tions in question, warranted. hearing demonstrating burden of that hearing on an grant evidentiary will not This court which facts from by specific an which is not allegation supported some actual suffered that the petitioner it can be concluded State, O’Rourke v. 298 Ark. prejudice. State, (1985). 696 S.W.2d v. 287 Ark.
(1989); Neff in the Furthermore, petition; facts must appear the supporting facts be will cannot on the rely possibility the petitioner Hayes See is held. hearing witnesses if a elicited from state Petitioner’s bald S.W.2d 648 treatment, alcoholism, he had a history psychiatric ments that to establish are not sufficient family and severe in his dysfunction that a particular offered no details because he has prejudice facts which could have testified particular witness or witnesses outcome of the have affected the would in reasonable probability of counsel’s effectiveness in favor strong trial. The presumption had mere claim that petitioner cannot be overcome mitigating have had some might witnesses who relatives or other evidence to present. Ann. 5-4- that Ark. Code argues
Petitioner next § circumstance aggravating sets out as an 604(5) (1987), which for the purpose murder was committed an from effecting escape an arrest or avoiding preventing fails to and overbroad unconstitutionally vague custody,
67 the assessing channel the discretion of the adequately jury earlier when of the death As stated appropriateness penalty. circum- addressing aggravating counsel’s attack on the same counsel, stance couched we in terms of ineffective assistance of have held in other cases that is not aggravating the circumstance State, 194, Hill v. S.W.2d 282. unconstitutional. 278 Ark. 644 however, case, We need not again reach the issue in this because Rule 37 does not a means to attack a conviction provide sentence on some trial when it argument that was not raised at 77, State, could have been raised. See White v. 290 Ark. 716 S.W.2d (1986). 203 The is made where an issue is only exception so fundamental as to render the of conviction or judgment State, 26, sentence 286 Ark. 688 void. Travis absolutely (1985). S.W.2d 935 is not allegation raised by petitioner sufficient to void judgment the or sentence.
Petitioner also the circum argues aggravating stance avoiding that the murder was committed for the purpose arrest an element of the offense and thus duplicates underlying constitutes double As with the last impermissible counting. allegation, the could have been at trial and is question presented not sufficient to void the is not therefore cognizable conviction. It State, 26, under our rule. Travis v. 286 Ark. 688 S.W.2d 935.
Petitioner next contends that the Arkansas death penalty statute is unconstitutional because it jury requires recommend a sentence of death if it returns certain unanimously written findings that an circumstance or circum aggravating stances exist. This issue is also one which could have been raised at trial and is not Id. Petitioner sufficient to void the conviction. further, however, argues for not that counsel was ineffective issue, raising cognizable the same a claim which is under Rule 37. We do not to raise failing find counsel to have been ineffective for This court has held that Ark. Code question. consistently Ann. 5-4-603(a-c) (1987), is when the is instructed jury proper, § in accordance with AMCI as was jury petitioner’s case, can, that it will not warrant by finding circumstances of the death return a verdict of life without imposition penalty, State, (1988); See Starr v. S.W.2d 535 parole. 297 759 cert. (1983), Clines v. denied, (1984). U.S. 1051
Petitioner next
the defini-
argues that the
between
overlap
law
tions of
and first
murder under Arkansas
degree
vagueness
gives
makes the statute void for
the prosecutor
Furman v.
S.W.2d 1 contends that he is insane
Finally, petitioner presently and that it is violative of the amendment eighth prohibition against cruel and unusual an to execute insane punishment sentence, As Rule person. 37 does not to the execution of a apply should make his in a petitioner argument clemency proceeding the Governor.
Petition denied. Hays, JJ., dissent.
Purtle Justice, John I. Purtle, dissenting. Petitioner’s case is presently before the pending United States Court. Supreme Under the circumstances this court should in its haste to pause dismantle relief until after the States United Court decides the matter.
By Rule which established to enable repealing was solely us to correct gross errors committed trial courts which could by not have been on direct we evade our presented appeal, responsi- to oversee the bility judicial justice of criminal in this process state, and, worse, we as well. Rule 37 has come to be deny justice, as a perceived strategem justice. criminals to employed delay That, however, rule, has never been the more purpose any than it has been the of trial I do not think the rule purpose byjury. as a is overburdened abused, this court
has been nor do I believe 37. from Rule resulting result of the petitions intended to soothe is The majority opinion primarily case, we would simply were not the conscience of the court. If this for Rule 37 with a do as we do when usually presented petition the court Truthfully, an issuing relief and it without deny opinion. long for a time. an to abolish this rule looking has been excuse justification destroy The sordid facts of this case are used as those who suffer obtaining may available means of relief for only filed on meritless are miscarriage justice. Inevitably, petitions Granted, is the case our But then so heavy. occasion. case load load in this we are Through simply the federal courts. opinion, courts to channel our into federal trying Rule petitions cut down on actions for habeas We thus have through may corpus. load, burden for other our work but we have also increased the and, cases, the door to justice. courts in some slammed shut an invitation to the nothing less than majority opinion *13 States, federal to judge, Court of the United or some well fashion like it. The result something may another Rule or event, load that be more work for us. In it is not our case any matter, rather the should be the factor in this but determining is made. demands of in each case where a claim for relief justice for ought shortening filing We to consider the time limit limit, one-year relief before Rule 37. A abolishing me, sentences, to at for void or voidable seems reasonable except relief least on a trial basis. The fact that some seek prisoners may to closing on meritless does warrant our this avenue grounds not not immune relief for the Even this court is possible deserving. rehearing? from else do we why petitions permit error — is no excuse for Sometimes seem to have no merit but that appeals abolishing appeals. horrendous, awful,
The sound statistics cited the by majority subject. but closer a different is shed on the scrutiny light upon 5,500 of There are in the Arkansas Department about residents the federal courts have limited given Correction on The any day. one time. any of Correction that number at to Department are of of Correction Because residents the many Department within the depart- released the total number legally every day, ment, than the much actually greater since is January the courts. ceiling federal imposed been filed since 37 and se motions have About Rule pro 4.5 of the to about January, percent popula- 1988. This amounts time, 1,910 letters same of During period tion state the prisons. This volume of addressed court were written by prisoners. to the out three inmates every about one of correspondence amounts to to adjusted a these are writing figures one letter once If year. include released the base during period, percentage those inmates becomes smaller. writing or even petitioning
We to out our frustration with ought take overburdened on residents our institutions system penal enough do not to suit because the federal courts move fast simply clogging us. We to to further ought instead endeavor avoid federal dockets as well as own. The majority opinion our a sack judicial handing drowning of a rescuer a person equivalent rocks. be to not to Our function should solve problems, ones create new ones. existing exacerbate or to Rule The curiam issued today adding paragraph per who dressing. average person 36.4 is little more than window just has well not his defense counsel been convicted realize may one was ineffective. It takes some time for to reach frequently Meanwhile, such a is usually conclusion. the convicted person locked any opportunity investigate without reasonable away even to decide whether he undertake the Herculean labor should the truth about his counsel. proving will, however,
This nor It change neither fair. practical immediately charge cause most of convicted probably those words, their trial with ineffectiveness. In other we are lawyers *14 fact of this court increasing decreasing rather than the workload to right and that of the trial The constitutional effective courts. be an given assistance counsel demands that an accused consider matter. opportunity intelligently is a The cost of on maintaining probation person parole small cost custody. fraction of the of keeping person at bigger jails, mood of of more and but society today in favor the same them. The unwilling time the public pay price other our will be more than all costs maintaining soon prisons the criminal government. trying our If we are to solve supporting population we should citizens problem society, try persuade at large and legal to look at crime system particular prevention rehabilitation, and instead on focusing detention and not, retribution. jails and sentences will Bigger longer themselves, solve our crime problems. the welfare of has
Historically, this nation rested primarily in the hands of lawyers, and We especially judiciary. should therefore light lead with the of law and way reason rather than follow the dictates of opinion and popular passion. The whole of the inmate not be population should included in the retribution of one of required its number. What to Jonas happens Whitmore as an individual is not more important than what happens to the justice entire criminal system. Hays, Justice,
Steele While I share dissenting. much of the dissatisfaction Rule with 37 as in the expressed majority’s opinion, I believe the fault lies not so in the much use of the rule as in its remedied, misuse. But can be least in my at and in part, view we should Rule revise 37 rather it. I than abolish respectfully dissent to the order entered in this case. BOARD,
ARKANSAS STATE MEDICAL et al. v. LEIPZIG 88-270 Court of Arkansas delivered
Opinion May [Rehearing denied June 1989.*] grant rehearing. *Purtle, and Justice J., Russell Meeks would Special participating. Holt, C.J., Glaze, J.,