Ward v. State.3

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SUPREME COURT OF ARKANSAS
No. CR-00-1322
BRUCE EARL WARD Opinion Delivered February 26, 2015
PETITIONER
MOTION TO RECALL
V. POSTCONVICTION-APPEAL
MANDATE [PULASKI COUNTY
CIRCUIT COURT, SEVENTH
STATE OF ARKANSAS DIVISION, NO. CR-89-1836]
RESPONDENT
MOTION DENIED.
COURTNEY HUDSON GOODSON, Associate Justice
Petitioner Bruce Earl Ward moves this court to recall the mandate on his appeal
affirming the circuit court’s denial of postconviction relief. Ward identifies three issues that
he suggests amounted to a defect or breakdown in the appellate process to support recalling
the mandate. First, he points out that his postconviction petition was unverified. Second, he
alleges that he was incompetent at the time of the postconviction hearing; and third, he argues
that his counsel performed deficiently by failing to raise any issue of mental health or
competency in the postconviction proceedings. We conclude that Ward has failed to establish
the extraordinary circumstances necessary to justify a recall of his postconviction appeal
mandate, and we deny his motion.
In 1990, a jury convicted Ward of capital murder and imposed the death penalty. On
appeal, this court affirmed his conviction but reversed his sentence due to a prejudicial error
that occurred during the sentencing phase of the trial. Ward v. State, 308 Ark. 415, 827
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S.W.2d 110 (1992) (Ward I). On remand, a jury again sentenced Ward to death, but we
reversed based on an error made by the court reporter. Ward v. State, 321 Ark. 659, 906
S.W.2d 685 (1995) (per curiam) (Ward II). Thereafter, a third jury sentenced Ward to death,
and we affirmed his sentence. Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999) (Ward III).
Ward then filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.5, which the circuit court denied after a hearing. On appeal, we affirmed the
circuit court’s denial of relief. Ward v. State, 350 Ark. 69, 84 S.W.3d 863 (2002) (Ward IV).
Ward has now petitioned this court to recall the mandate in Ward IV based on the
three aforementioned reasons. This court will recall a mandate and reopen a case only in
extraordinary circumstances. Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003). To
establish the extraordinary circumstances that would warrant the recall of a mandate or the
reopening of a case, we have enumerated certain factors to be considered, namely: (1) the
presence of a defect in the appellate process, (2) a dismissal of proceedings in federal court
because of unexhausted state-court claims, and (3) the appeal is a death case that requires
heightened scrutiny. Roberts v. State, 2013 Ark. 57, 426 S.W.3d 372. We have held that
these factors are not necessarily to be strictly applied but rather that they serve as a guide in
determining whether to recall a mandate. Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233.
In this case, Ward first argues that we should recall the mandate because his
postconviction petition was unverified, and he asserts that the lack of verification constitutes
a defect in the appellate process sufficient to support recalling the mandate in his
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postconviction appeal, citing to our decision in Wooten v. State, 2010 Ark. 467, 370 S.W.3d
475. The State argues that we should not follow Wooten because the appropriate relief for a
defendant in a death case who has filed an unverified postconviction petition is to allow the
defendant to verify his petition and supplement the record so that this court may review the
substance of his postconviction appeal. In light of the fact that this court previously reviewed
Ward’s postconviction appeal despite the unverified petition, the State contends that such
relief in this instance would be moot.
The requirement for verification is found in Arkansas Rule of Criminal Procedure
37.1(c) and requires the petitioner to execute an affidavit swearing that the petitioner has read
the petition and that the facts stated in the petition are true, correct, and complete to the best
of petitioner’s knowledge and belief. This court has held that the verification requirement for
a postconviction-relief petition “is of substantive importance to prevent perjury.” Boyle v.
State, 362 Ark. 248, 250, 208 S.W.3d 134, 136 (2005). Furthermore, we have routinely
affirmed the denial of postconviction relief where the petition is not verified. See, e.g., Butler
v. State, 2014 Ark. 380 (per curiam). However, in the unique case involving a defendant
sentenced to death, we have remanded, rather than summarily affirming the denial of
postconviction relief, so that the defendant can verify his petition and supplement the record
with the verified petition. Howard v. State, 366 Ark. 453, 236 S.W.3d 508 (2006).
Keeping the foregoing principles in mind, we hold that Ward has failed to establish a
defect or breakdown in the appellate process because this court has reviewed his
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postconviction appeal, notwithstanding the unverified petition. Pursuant to our decision in
Howard, Ward’s remedy for submitting an unverified petition in his direct postconviction
appeal would have been limited to a remand to allow him to verify his petition and to
supplement the record, followed by an appeal of his original postconviction petition. Because
we failed to identify that Ward’s petition was unverified, we proceeded with our review of
his postconviction appeal. As a result, Ward received the same appellate process he would
have received if we had noted the unverified petition and followed the procedure outlined
in Howard. Consequently, the failure of this court to acknowledge his unverified petition
enured to his benefit. Accordingly, we cannot say that there was a breakdown or defect in
the appellate process.
We recognize that our holding today is in conflict with our decision in Wooten, supra.
In Wooten, this court reached a different result by erroneously relying on Collins v. State, 365
Ark. 411, 321 S.W.3d 717 (2006). While both Collins and Wooten involved unverified
postconviction petitions, it was the cumulation of postconviction errors that resulted in a
breakdown of the appellate process in Collins. Specifically, the circuit court appointed
numerous counsel to represent Collins in his postconviction proceeding, but none were
qualified under Rule 37.5 and none had filed a compliant postconviction petition.
Eventually, the circuit court held a hearing purportedly to adjudicate his Rule 37.5 claims,
but the arguments addressed in the hearing were not contained in the unverified petition. In
short, at no point did Collins receive a hearing or appeal on any postconviction petition he
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filed. On appeal, this court held that the multitude of problems in Collins’s Rule 37.5
proceeding amounted to a “breakdown in the appellate process,” and we remanded to allow
him to file a new petition. Thus, the holding and relief in Collins turned on the fact that his
postconviction hearing and appeal were not based on a written petition, as opposed to the lack
of verification. Ergo, the majority in Wooten erred by oversimplifying the decision in Collins
to justify its holding that the lack of verification itself constitutes a defect or breakdown in the
appellate process.
As a general rule, we are bound to follow prior case law under the doctrine of stare
decisis, a policy designed to lend predictability and stability to the law. Low v. Ins. Co. of N.
Am., 364 Ark. 427, 220 S.W.3d 670 (2005). However, we are not bound to follow a
previous decision when there has been palpable error in legal analysis. Nooner v. State, 2014
Ark. 296, 438 S.W.3d 233. The Wooten court’s reliance on Collins is such an error, and
resulted in a holding that is out of step with the rest of our jurisprudence on the verification
requirement and recalling the mandate. Accordingly, we hereby overrule it.
In dissent, Justice Baker maintains that we should recall the mandate in this case, as
this court lacked jurisdiction to hear Ward’s postconviction appeal because his Rule 37.5
petition was unverified. With all due respect, this position fails for two reasons. First, this
court has routinely afforded lenient treatment to otherwise jurisdictional issues in capital cases
because of the unique nature of the death penalty. Indeed, while we have recognized the
principle that the requirements of Rule 37 are jurisdictional in nature, we have held that rule
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in abeyance where the death penalty has been imposed. See, e.g. Jackson v. State, 343 Ark.
613 (2001). For instance, in Jackson, we declined to impose a jurisdictional bar where the
appellant had failed to file a timely petition under Rule 37.5, noting that the general rule
against jurisdiction did not apply. We stated,
If the present case were a non-capital case, then the general rule would
certainly be that the time limits set forth in Rule 37 are jurisdictional in nature
and would apply. . . However, because this is a capital case involving the death
penalty and involving Rule 37.5, it calls on this Court to address whether due
process requirements of fundamental fairness compel the circuit court to
address appellant’s Rule 37 petitions on their merits.
Jackson, 343 Ark. at 616–617; 37 S.W.3d at 597. Thus, we have refused to impose strict,
jurisdictional restrictions on the requirements of Rule 37.5 and have instead allowed capital
defendants to obtain appellate relief notwithstanding shortcomings that, in a non-capital case,
would have circumvented this court’s jurisdiction. See Coulter v. State, 340 Ark. 717, 13
S.W.3d 171 (2000) (per curiam) (reviewing appeal despite untimely notice of appeal); Porter
v. State, 339 Ark. 15, 2 S.W.3d 73 (1999) (reviewing appeal despite untimely Rule 37.5
petition). Accordingly we have held that “fundamental fairness, in this narrowest of instances
where the death penalty is involved, dictates an exception.” Porter, 339 Ark. at 19, 2 S.W.3d at
76 (emphasis in original).
Second, the question here is whether Ward has established a defect or breakdown in
the appellate process. As noted above, Ward received the process to which he was entitled,
despite his unverified petition, because we reviewed his postconviction arguments on appeal.
In short, we exercised jurisdiction over his appeal, which, in light of our historically lenient
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treatment of jurisdictional issues in death-penalty cases, is precisely what we would have done
if we had identified the lack of verification.
Ward’s second justification for recalling the mandate is that he was mentally
incompetent during his Rule 37.5 proceedings, resulting in a breakdown in the appellate
process sufficient to justify recalling the mandate. Ward argues that our decision in Roberts,
supra, supports his position that his alleged mental incompetence during his Rule 37.5
proceedings requires recalling the mandate.
Ward misconstrues our holding in Roberts. In Roberts, the defendant initially waived
his right to appeal in 2000. Following court-ordered competency evaluations, the circuit
court ruled that Roberts was competent to waive his right to appeal. In 2003, this court
affirmed Roberts’s conviction on direct appeal, including the circuit court’s findings that he
had competently waived his right to appeal. One month later, Roberts appeared pro se before
the circuit court and waived his right to postconviction relief. The circuit court reviewed the
previous evaluations performed in 2000 and ruled that Roberts’s waiver of postconviction
relief was knowing and voluntary. We reviewed his postconviction proceedings and upheld
the circuit court’s findings. In 2012, Roberts filed a motion to recall the mandate, arguing
that a timely mental evaluation was necessary to determine whether he had made a knowing
and voluntary waiver of his postconviction rights. We held that the evaluations used by the
circuit court and this court in regards to Roberts’s competency to waive his postconviction
rights were insufficient because they had occurred over three years prior to the postconviction
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hearing and were focused on competency to stand trial rather than competency to elect
execution.
The instant case is markedly different from Roberts. The issue in Roberts was the
defendant’s competency to waive postconviction rights. In this case, Ward did not waive his
postconviction rights. In fact, Ward’s appointed counsel presented arguments to the circuit
court on Ward’s behalf and to this court on appeal. Thus, unlike Roberts, where the defendant
had made no postconviction arguments and received no postconviction process as a result of
his waiver, here, Ward received a postconviction hearing and appeal.
More fundamentally, unlike in Roberts, where the circuit court was required to make
a finding regarding Roberts’s competency to waive postconviction relief, we have no rule or
caselaw mandating a circuit court to make a finding of general competency to proceed in a
postconviction matter. Roberts involved a waiver of postconviction relief, which is governed
by Arkansas Rule of Criminal Procedure 37.5. That rule mandates that a circuit court
appoint postconviction counsel for a defendant if it finds that the defendant is indigent and
either accepts the appointment of the attorney or is unable to make a competent decision
about whether to accept or reject an attorney. Thus, the circuit court is required to review
a defendant’s competency and make a finding thereon if the defendant seeks to waive his
postconviction rights. Ark. R. Crim. P. 37.5. Accordingly, pursuant to Rule 37.5, the
circuit court in Roberts was mandated to make express findings regarding Roberts’s
competency, and in doings so, the circuit court relied on studies that were over three years
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old. In reviewing the circuit court’s findings, we failed to note the age of the evaluations and
affirmed the circuit court’s finding of competency. In our decision recalling the mandate, we
held that the circuit court had failed to make a proper determination regarding competency,
and that we had failed to uncover its error.
In contrast to the facts in Roberts, the circuit court in this instance was under no
obligation to determine Ward’s competency under Rule 37.5 prior to adjudicating his
postconviction claims, as he did not waive his postconviction rights. Because the court was
not required to and did not make a finding on Ward’s competency, we did not review his
competency as part of Ward IV. As a result, he has failed to point to an error that this court
made or overlooked in its review of his postconviction proceedings appeal and has failed to
show grounds to recall the mandate on this issue.
Ward’s third argument is that we should recall the mandate in his postconviction
appeal because his postconviction counsel failed to adequately address his mental issues during
his postconviction hearing. Specifically, Ward argues that his counsel failed to raise the issue
of his competence at trial as well as in his postconviction hearing and also failed to argue that
Ward was wrongly denied the assistance of an independent mental-health expert at trial.
Essentially, Ward’s argument is that we should recall the mandate in his postconviction appeal
because his counsel was ineffective. Ward contends that the concurrence in Wooten, supra
allows a claim for recalling the mandate based on ineffective assistance of counsel.
We do not entertain a claim for recalling the mandate based solely on allegations of
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ineffective assistance of postconviction counsel. As we have held, recalling the mandate is an
extremely narrow remedy reserved for unique situations; to enlarge it to allow typical claims
of ineffective assistance of counsel would alter the nature of the relief entirely. In Lee v. State,
367 Ark. 84, 238 S.W.3d 52 (2006) (Lee I), we did recall the mandate where postconviction
counsel was intoxicated and impaired during the course of the proceedings. Following the
mandate recall, Lee received a new postconviction hearing. Thereafter, Lee petitioned this
court to recall the mandate in his case again, arguing that his new postconviction counsel was
ineffective. We explained that there is a fundamental difference in ordinary claims of
ineffective assistance of counsel and the extraordinary circumstances presented in Lee I.
Lee v. State, No. CR-08-160, slip op. at 2 (Ark. Sept. 18, 2008) (unpublished per curiam) (Lee
II). Thus, because Ward’s claims are that his counsel was merely ineffective, and not impaired
or intoxicated as in Lee I, he has not presented legal grounds to recall the mandate.
Motion denied.
DANIELSON, BAKER and HART, JJ., dissent.
PAUL E. DANIELSON, Justice, dissenting. Because I am of the opinion that our
decision in Wooten v. State, 2010 Ark. 467, 370 S.W.3d 475 is, and should remain, controlling
precedent in this case, I respectfully dissent. This court strongly adheres to the doctrine of
stare decisis. See Hervey v. State, 2011 Ark. 113. Indeed, it is well settled that “precedent
governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes
unavoidable.” Low v. Ins. Co. of N. America, 364 Ark. 427, 431, 220 S.W.3d 670, 673 (2005).
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Our test is whether adherence to the rule would result in “great injury or injustice.” Id., 220
S.W.3d at 673. This is not such a case.
Applying the test here, it is not our adherence to the rule in Wooten that would result
in great injury or injustice. To the contrary, it is the majority’s overruling of that decision
that has such a result—markedly so because this case involves a sentence of death. See
Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006) (Imber, J., dissenting) (observing that
a change in the law is particularly regrettable when it affects a person who is appealing his
death sentence). I would follow what I believe to be our correct and well-reasoned decision
in Wooten and would grant the instant motion. Accordingly, I dissent.
KAREN R. BAKER, Justice, dissenting. Today, rather than acknowledge our own
error in Ward’s postconviction case, the majority upends our precedents recognizing the
unique procedural safeguards afforded to petitioners under a sentence of death. Ward’s
petition for postconviction relief was unverified. As a result, neither the circuit court that
denied it, nor this court had jurisdiction to address his claims. I cannot agree with the
majority’s characterization of our decision rendered absent jurisdiction as enuring to Ward’s
benefit. Ward is under a sentence of death and should receive the same procedural safeguards
afforded to every postconviction petitioner under that sentence. At the very least, he is
entitled to a decision rendered by a court of competent jurisdiction. By failing to recall the
mandate in this case the majority runs afoul of many precedents, in addition to Wooten.
Because I would hold that a decision rendered without jurisdiction constitutes a breakdown
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in the appellate process sufficient to justify recall of the mandate, I would grant Ward’s
motion. Accordingly, I dissent.
Rule 37.1(c) requires a petitioner to verify his petition for postconviction relief. In
cases where the petitioner did not receive a sentence of death, we have simply affirmed denial
of postconviction relief if the petition was not verified and we have not afforded the petitioner
a second chance to verify the petition and have his claims addressed by this court. Collins v.
State, 365 Ark. 411, 414, 231 S.W.3d 717, 719 (2006). However, we have stated that there
is no question that the death penalty is a unique punishment that demands unique attention
to procedural safeguards. Id. (citing Robbins v. State, 353 Ark. 556, 354 Ark. 1, 114 S.W.3d
217 (2003)). This court has repeatedly set aside strict adherence to procedural rules in
connection with postconviction relief out of concern for fairness in death-penalty cases. Id.
One of the procedural safeguards we have afforded to persons under a sentence of death is the
opportunity to verify an unverified petition for postconviction relief, rather than having a
denial affirmed as a result of a procedural error. Wooten v. State, 2010 Ark. 467, 370 S.W.3d
475, is hardly unique in recognizing the procedural safeguards afforded to petitioners under
a sentence of death. See Collins, supra; see also Howard v. State, 366 Ark. 453, 455, 236 S.W.3d
508, 509 (2006) (per curiam) (“Because Howard was sentenced to death, we set aside our
strict adherence to procedural rules, and we do not dismiss his appeal out of hand. We do,
however, remand the case to the circuit court for Howard to file a verified petition for
postconviction relief and file a supplemental record with this court within fifteen days from
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the date of this order.”).
Even more troubling is the fact that this court has repeatedly stated that an unverified
Rule 37 petition deprives the circuit court, and consequently the appellate court, of
jurisdiction. Adkins v. State, 2014 Ark. 349; Branning v. State, 2014 Ark. 256, at 4 (“We have
held that a circuit court lacks jurisdiction to consider arguments raised in an unverified Rule
37.1 petition.”); Martin v. State, 2012 Ark. 312; Williamson v. State, 2012 Ark. 170; Stephenson
v. State, 2011 Ark. 506. This is because Rule 37.1(d) requires dismissal of an unverified
petition. Stewart v. State, 2014 Ark. 85, at 2 (per curiam) (“Rule 37.1(d) requires that the
circuit clerk reject an unverified petition and that the circuit court or the appellate court must
dismiss a petition that fails to comply with Rule 37.1(c).)”; see also Paige v. State, 2013 Ark.
135; Hatton v. State, 2012 Ark. 286 (per curiam); Keck v. State, 2013 Ark. 139. It is axiomatic
that when the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction.
Stewart, 2014 Ark. 85; Paige, 2013 Ark. 135; Williamson, 2012 Ark. 170; Talley v. State, 2011
Ark. 497 (per curiam); Gilliland v. State, 2011 Ark. 480 (per curiam).
I acknowledge that the above cases discussing jurisdiction are cases applying Rule 37.1,
whereas petitions filed by persons under a sentence of death must comply with Rule 37.5.
However, Rule 37.5 explicitly provides that the provisions of Rules 37.1 shall apply to a
petition for postconviction relief filed by a person under sentence of death, unless otherwise
provided for in the rule. Ark. R. Civ. P. 37.5(a). Rule 37.1(d) provides that the circuit clerk
“shall not accept for filing” any petition that is not verified. Likewise, the rule provides that
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the circuit court or any appellate court shall dismiss any petition that fails to comply with the
verification requirements. Ark. R. Crim. P. 37.1(d). There is nothing in Rule 37.5 that
changes the verification requirements of Rule 37.1, nor does it change the dismissal
requirement under 37.1(d). The dismissal requirement of 37.1(d) is the reason why this court
has recognized an exception for persons under a sentence of death who file unverified
petitions; otherwise, this court would be obligated, by the text of the rule, to dismiss those
unverified petitions without addressing the postconviction claims of those facing the ultimate
punishment. Without such a grace, the dismissal of an unverified petition might foreclose the
possibility of review entirely. Ark. R. Crim. P. 37.5(e); see also Jackson v. State, 343 Ark. 613,
617, 37 S.W.3d 595, 597 (2001) (holding that in a capital case involving the death penalty and
involving Rule 37.5, the court must address whether due process requirements of fundamental
fairness compel the circuit court to address untimely Rule 37 petitions on their merits).
The majority relies on Howard, supra for the proposition that because we reviewed
Ward’s Rule 37 petition and did not dismiss it outright, he has received all of the process he
is due. Howard stands for no such proposition. In Howard, the petitioner, who was under a
sentence of death, filed a verified Rule 37.5 petition and then filed an unverified amended
petition. Howard, 366 Ark. at 454, 236 S.W.3d at 508. The circuit court dismissed the
unverified amended petition and the petitioner appealed. This court remanded the petition
for verification. We did not reach the merits of the petition, nor did we endorse the view
that we could simply review an unverified petition and thereby satisfy our procedural rules.
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Id. at 455, 236 S.W.3d at 509. Instead, we stated that in a death-penalty case the failure to
verify was “clearly” a breakdown in the appellate process. Id. Moreover, the majority fails
to acknowledge that actions taken by a court without jurisdiction are null and void—no
matter how much process has occurred. See, e.g., Villines v. Harris, 362 Ark. 393, 398, 208
S.W.3d 763, 767 (2005).
Moreover, I do not understand the majority’s assertion that they are merely following
in the steps of precedents holding jurisdictional issues in abeyance in death penalty cases. First,
by overruling Wooten, the majority actually is depriving Ward of the same procedure that has
been afforded to others sentenced to death. Second, the cases cited by the majority all
recognize that there is a jurisdictional bar to hearing a Rule 37 petition that does not adhere
to filing requirements under the rules. While we have previously set aside such jurisdictional
bars in death penalty cases, the fact remains that we have treated the time requirements and
the verification requirement as jurisdictional.
Finally, I note that our precedents holding that verification requirements are
jurisdictional in nature are hardly novel. See Pattillo v. Toler, 210 Ark. 231, 233, 196 S.W.2d
224, 225 (1946) (finding that when a rule proscribes the procedure to vacate or modify the
judgment after the term at which it was entered has concluded, and that rule requires that the
complaint or petition be verified by affidavit, the verification is a jurisdictional requirement)
(citing Merriott v. Kilgore, 200 Ark. 394, 139 S.W.2d 387, First Nat’l Bank of Manchester, Iowa
v. Dalsheimer, 157 Ark. 464, 248 S.W. 575).1 While I acknowledge that Patillo does not
1
Patillo was decided under superseded Ark. Stat. Ann. § 27-1105 (Repl. 1962),
which required that a complaint, answer and reply be verified. We no longer require
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pertain to Rule 37 cases, the legal concept that verification requirements are jurisdictional in
nature is not something that has arisen solely in the present context.
Because the majority errs by refusing to recognize that Ward’s unverified petition
constitutes a breakdown in the appellate process that rendered this court without jurisdiction
to determine the merits of his Rule 37 petition, I respectfully dissent.
HART, J., joins.
Jennifer Horan, Federal Defender, by: Josh Lee; and Joseph W. Luby, Death Penalty
Litigation Clinic, for petitioner.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for respondent.
verification of all pleadings. See Ark. R. Civ. P. 11 rptr. n.2.
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