Newman v. Cottrell ( 2016 )

Cite as 2016 Ark. 413
SUPREME COURT OF ARKANSAS
No. CR-16-412
RICKEY DALE NEWMAN Opinion Delivered December 1, 2016
PETITIONER
PETITION FOR WRIT OF
V. CERTIORARI
HONORABLE GARY R. COTTRELL,
HONORABLE GARY R. COTTRELL, JUDGE
CRAWFORD COUNTY CIRCUIT
COURT PETITION DENIED.
RESPONDENT
KAREN R. BAKER, Associate Justice
On January 28, 2016, petitioner, Rickey Dale Newman filed a motion to dismiss for
violation of right to speedy trial with the circuit court. On March 10, 2016, the circuit court
denied the motion. Newman now seeks a writ of certiorari vacating the circuit court’s order.
A procedural history of Newman’s case is necessary to an understanding of Newman’s
petition for writ of certiorari. On June 10, 2002, Newman, was convicted in the Crawford
County Circuit Court of one count of Capital Murder and sentenced to death. On January
16, 2014, we vacated Newman’s conviction and sentence and remanded the case to the circuit
court for a new trial on the grounds that Newman was not competent to stand trial in 2002.
Newman v. State, 2014 Ark. 7, at 29. The mandate issued on February 5, 2014. On February
28, 2014, in response to the mandate, the circuit court issued an order suspending proceedings
and committing Newman to the custody of the director of the Arkansas Department of
Human Services “for detention, care, and treatment until restoration of fitness to proceed.”
Cite as 2016 Ark. 413
Newman was transported for the assessment, but on the advice of his counsel,
Newman refused to cooperate. On April 21, 2014, Dr. Mark Peacock, Ph.D., of the
Arkansas State Hospital filed a report with the circuit court. In this report, Peacock stated he
could not assess “the true extent of Mr. Newman’s knowledge of the adjudicative process and
his capacity to provide effective assistance to his attorney” but that Newman’s “conversations
with staff and his conduct since admission [had] not raised suspicion that his lack of
cooperation with restoration or evaluation efforts is based in any substantially impairing
mental disease or mental defect.” Peacock further opined that Newman’s refusal to cooperate
with the mental examination was a “knowing and voluntary” act and “any ongoing efforts
to forcibly treat or ‘restore’ [Newman’s] adjudicative fitness [would] only serve to create a
potentially unsafe or openly defiant situation” that would not serve the interests of any party.
On June 5, 2014, Newman filed a request to disqualify the prosecuting attorney and
his office. On August 27, 2014, the circuit court granted the motion and appointed a special
prosecutor. The circuit court rescheduled the trial for October 27, 2014; however, the special
prosecutor requested a continuance. The circuit court rescheduled the trial for April 6, 2015.
On October 10, 2014, the special prosecutor filed a motion seeking a fitness
examination of Newman. This motion was based on the previous judicial findings of
Newman’s incompetence and the content of a letter, written by Newman, without the
knowledge of his counsel, and addressed to the court, in which Newman stated that he did
not feel his circumstances regarding competency had changed since it was determined he was
incompetent to stand trial in 2002. In the letter, Newman also maintained that he is innocent
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but requested the death penalty remain an option because “‘death is [his] only peace.’” On
November 6, 2014, the circuit court granted the motion, and allowed a private psychiatrist
not practicing with the Arkansas State Hospital, Bradley C. Diner, M.D., to examine
Newman. On December 29, 2014, Newman filed a motion to disqualify the special
prosecutor.
On February 26, 2015, Diner filed a report with the circuit court in which stated he
was unable to fully assess Newman’s fitness based on records alone but that he believed
Newman’s behavior was deliberate. He ultimately recommended that Newman be sent back
to the Arkansas State Hospital for assessment:
I am of the belief that Newman suffers from both mental disease and defect.
I am not, however, certain that his psychiatric conditions have rendered him
incompetent. Specifically, I am not of the opinion that Newman’s repeated request for
the death penalty is indicative of suicidal ideation or intent and that his “suicidality”
impedes his ability to make rational, self-protective decisions. Rather, I believe
Newman has learned to use this behavior as a way to prolong the proceedings, tie the
court’s hands, and ultimately prolong his life.
Secondly, I am uncertain that his psychiatric condition precludes his ability to consult
his attorney. . . . He has learned that his behavior confounds and complicates his case,
thus prolonging action and simultaneously giving him power and control. This very
behavior is indicative of understanding factually the charges against him and gives
insight into his awareness of the consequences. There is even some indication that he
knows he should be discussing his actions with his attorney (by virtue of stating
repeatedly, “She doesn’t know I’m writing this.”). I believe he knows this will make
it appear he cannot work with her, so he repeatedly does it.
The extent to which Newman’s illness and cognitive deficits manifest and interfere
with his competency cannot be determined by a retroactive review of records alone.
He must be examined directly, and his behavior affect, interpersonal interactive
quality, and cognitive skills must be observed and analyzed. . . . Unfortunately,
Newman is currently refusing to cooperate, making that direct assessment impossible.
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Therefore, I would recommend he be sent back to the Arkansas State Hospital for
another competency assessment.
On April 1, 2015, on the State’s motion, the circuit court again entered an order
committing Newman to the Arkansas State Hospital “for detention, care, and treatment until
restoration of fitness to proceed.” The court based its judgment on additional letters it had
received from Newman requesting death and Newman’s continued refusal to cooperate with
the fitness evaluation. According to the court,
there has been no meaningful evidence presented to the Court to suggest a material
change in defendant’s fitness, and the evidence before the court suggests there has not
been. Although both defendant and his counsel insist that there has been a change and
that he is competent to proceed, both have inexplicably refused to cooperate with the
Court’s efforts to secure an appropriate mental-health evaluation to establish that
contention . . . in light of counsel’s advice that her client not cooperate with an
evaluation, even though counsel states that she believes he is competent, the court
affords little weight to counsel’s view . . . If defendant were indeed competent, as his
counsel contends, he presumably would be found competent by a mental-health
evaluation if one were permitted to proceed on his contention that his competence has
been restored. . . . In light of the Supreme Court’s recent finding that defendant was
incompetent at the time of his first trial, fortified by his behavior at trial and through
his more recent coram nobis proceedings, behavior not unlike that exhibited now, and
in light of the fact that there is no meaningful evidence that his competence has been
restored, the court concludes that defendant remains unfit for trial.
On June 25, 2015, Peacock filed a report with the circuit court in which he stated, “I
believe that Mr. Newman has evidenced, more often than not, a capacity for thinking about
his case in a rational manner and tends to also maintain his understandably pathological desire
for death.” Peacock further noted that Newman “was able to identify and interact
cooperatively with his attorney” and that “Newman’s letter writing is more a product of his
personality pathology than acute psychopathology typically viewed as responsible for
substantial impairment in one’s fitness-related behavior.” Peacock further opined that
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Newman “is capable of rationally understanding the points being raised in his defense and of
displaying lengthy and meaningful periods of appropriate and controlled behavior when faced
with the facts and information pertaining to his case.” Peacock concluded that Newman was
not only capable of restoration but that had also achieved it. Subsequently, the special
prosecutor requested a hearing on the report, and a hearing was held on September 18, 2015.
Peacock testified regarding his mental evaluation of Newman. At the conclusion of the
hearing, the circuit court requested a final report from Diner, which was filed on October 2,
2015. Diner opined that Newman was fit to stand trial. The court agreed with Peacock’s and
Diner’s opinions and found Newman fit to proceed on November 4, 2015.
On January 28, 2016, Newman filed a motion to dismiss for violation of the right to
a speedy trial, which the circuit court denied; Newman filed this petition for a writ of
certiorari.
Speedy Trial: Petition for Writ of Certiorari
In the present petition for a writ of certiorari, Newman contends that we should issue
a writ of certiorari vacating the order of the circuit court that denied his motion to dismiss for
violation of his right to a speedy trial. Specifically, Newman contends that circuit court erred
by excluding from the 12-month speedy-trial period the period between when Newman was
committed for restoration on February 28, 2014, until Newman was determined competent
on November 4, 2015.
“A writ of certiorari is an extraordinary writ, which ‘will be granted only when there
is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or when the
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proceedings are erroneous on the face of the record.’” Smith v. Fox, 358 Ark. 388, 395, 193
S.W.3d 238, 243 (2004) (internal citations omitted). This writ is appropriate only where it is
apparent from the record that there has been a ‘plain, manifest, clear, and gross abuse of
discretion, and there is no other adequate remedy.’” State v. Dawson, 343 Ark. 683, 693, 38
S.W.3d 319, 325 (2001)(internal citations omitted). With these standards in mind, we turn
to the law governing speedy trials. Arkansas Rule of Criminal Procedure 28 governs
speedy-trial determinations. It requires the State to try a defendant within twelve months,
excluding any periods of delay authorized by Ark. R. Crim. P. 28.3. See Ark. R. Crim. P.
28.1 (2002); Miles v. State, 348 Ark. 544, 75 S.W.3d 677 (2002). Further, Ark. R. Crim. P.
28.2(f) states that “if the defendant is to be retried following a collateral attack of a conviction,
the time for trial shall commence from the date of the order invalidating the conviction.”
Here, Newman’s conviction was vacated on January 16, 2014. However, since the
court’s decision remanding the case for retrial was not effective until the mandate was issued,
the time for trial commenced running on February 7, 2014. See Ark. Sup. Ct. R. 5-2 (2015);
Clements v. State, 312 Ark. 528, 531, 851 S.W.2d 422, 424 (1993). Thus, the State had until
February 7, 2015, to try Newman unless there were periods of delay authorized by Ark. R.
Crim. P. 28.3. Pursuant to Ark. R. Crim. P. 28.3(a), the period of delay from other
proceedings concerning the defendant, including but not limited to an examination and
hearing on the competency of the defendant and the period during which he is incompetent
to stand trial shall be excluded in computing the time for trial.
In this case, Newman was evaluated for competency multiple times, due in large part
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to his refusal to cooperate with the assessments. However, Newman asserts that under this
court’s ruling in Davis v. State, 375 Ark. 368 291 S.W.3d 164 (2009), only the time between
the date the circuit court ordered the mental evaluation and the date that the corresponding
report was filed is excusable. Thus, Newman argues the maximum excludable time totaled
249 days. This calculation represents 52 days between February 28, 2014, and April 21, 2014;
112 days between November 6, 2014, and February 26, 2015; and 85 days between April 1,
2015, and June 25, 2015. Furthermore, Newman argues that, “if every one of those days is
excluded from the speedy trial calculation, the combined effect is to extend the end of the
speedy trial period from January 16, 2015, to September 22, 2015.” Therefore, Newman
asserts, the circuit court erred in denying his motion to dismiss on January 28, 2016.
The State responds that Newman’s argument disregards the portion of Ark. R. Crim.
P. 28.3(a) concerning the exclusion of any period during which a defendant is incompetent
to stand trial. The State concedes that when Newman filed his motion to dismiss on January
28, 2016, 720 days had elapsed from the issuance of this court’s mandate, thus establishing
a prima facie case that a speedy trail violation had occurred. However, the State further
responds that any delay was either caused by Newman or was justifiably excluded under Ark.
R. Crim. P. 28.3. The State contends that, based on the record before us, it is clear that
Newman was never ruled fit to stand trial from the time this court found him unfit to proceed
at his 2002 capital-murder trial until the circuit court found Newman fit to proceed, on
November 4, 2015. Thus, the state contends that the circuit court had no authority or
jurisdiction to resume proceedings against Newman until it determined he was fit to proceed.
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In State v. Thomas, 2014 Ark. 362, 439 S.W.3d 690, we addressed whether a circuit
court has jurisdiction to restart a criminal proceeding before a defendant has been found
competent to stand trial. In Thomas, we determined that under Ark. Code Ann. § 5-2-310
(c)(1), “it is only after the circuit court has found that a defendant has ‘regained fitness’ that
criminal proceedings may be resumed.” Id. at 6 (citing Mauppin v. State, 309 Ark. 235, 831
S.W.2d 104 (1992)). In this case, the circuit court was unable to determine that Newman was
fit to proceed until November 4, 2015, primarily because Newman refused to submit to an
evaluation. Thus, although Peacock and Diner both reported that Newman was competent,
neither could definitively say that he was competent to proceed until he proceeded with the
mental evaluation. As a result, the circuit court could not find him fit to proceed, and
pursuant to the holding in Thomas, the circuit court could not resume criminal proceedings.
Because, the period during when Newman was not competent to stand trial is excludable for
purposes of calculating speedy-trial, we hold that the circuit court did not err in denying
Newman’s motion to dismiss.
Accordingly, we find no error on the face of the record, and Newman has not met the
requirements for issuance of a writ of certiorari.
Petition denied.
Julie Brain, for petitioner.
Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.
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