Latham v. Kelley ( 2017 )

Cite as 2017 Ark. 210
SUPREME COURT OF ARKANSAS.
No. CR-16-1126
PAUL W. LATHAM Opinion Delivered JUNE 1, 2017
APPELLANT
APPEAL FROM THE MILLER COUNTY
V. CIRCUIT COURT AND APPELLANT’S
PRO SE MOTION FOR EXTENSION OF
WENDY KELLEY, DIRECTOR, TIME TO FILE REPLY BRIEF
ARKANSAS DEPARTMENT OF [NO. 46CR-92-308]
CORRECTION
APPELLEE HONORABLE BRENT HALTOM,
JUDGE
REVERSED AND REMANDED; MOTION
MOOT.
PER CURIAM
In 1993, appellant Paul W. Latham was found guilty by a jury in the Miller County
Circuit Court of rape. He was sentenced as a habitual offender who had been adjudged
guilty of four or more prior felonies to seventy-five years’ imprisonment. We affirmed.
Latham v. State, 318 Ark. 19, 883 S.W.2d 461 (1994).
In 2016, Latham filed in the trial court a pro se petition to correct an illegal sentence
under Arkansas Code Annotated section 16-90-111 (Repl. 2016).1 The trial court denied
the petition, and Latham brings this appeal. Also before us is Latham’s motion seeking an
extension of time to file a reply brief in the appeal.
1Latham named the director of the Arkansas Department of Correction as a party to the
action, but claims under section 16-90-111 are properly filed against the State. As the
petition was filed on the trial court’s criminal docket and acted on as an action challenging
the judgment imposed by the State, Latham’s error in naming the director as a party created
no harm.
Cite as 2017 Ark. 210
We need not consider Latham’s arguments concerning the merits of his petition for
relief under the statute because we find good cause to reverse and remand the matter so that
a different circuit judge can rule on the petition. Accordingly, the motion for extension of
time to file a reply brief in the appeal is moot.
Latham contends in his brief that the order should be reversed because the judge who
ruled on his section 16-90-111 petition served as the prosecutor at his trial, a statement
which is borne out by the face of the judgment. We have held it is not, in and of itself,
error for a trial judge to preside over a case involving a defendant whom the judge previously
prosecuted for a separate crime. Irvin v. State, 345 Ark. 541, 553, 49 S.W.3d 635, 643 (2001).
As stated, the judgment in Latham’s case reflects that the judge who ruled on his petition
was, in fact, the prosecuting attorney at his trial for the offense at issue.
A serious appearance of impropriety is created when a judge rules in a case in which
he or she prosecuted the petitioner at trial in that case. Judges must refrain from presiding
over cases in which they might be interested. Reel v. State, 318 Ark. 565, 886 S.W.2d 615
(1994). Elmore v. State, 355 Ark. 620, 144 S.W.3d 278 (2004). The judge’s decision in this
case is cause to reverse and remand the matter so that a different circuit judge can consider
Latham’s petition.
Reversed and remanded; motion moot.
Paul W. Latham, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.
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