Neal v. State

• Decision Date: 30 June 2016
• Docket Number: No. CR–15–983,CR–15–983
• Citation: Neal v. State, 2016 Ark. 287, 497 S.W.3d 666 (Ark. 2016)
• Parties: Jason Carroll Neal, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Supreme Court

2016 Ark. 287

497 S.W.3d 666

Jason Carroll Neal, Appellant

v.State of Arkansas, Appellee

No. CR–15–983

Supreme Court of Arkansas.

Opinion Delivered June 30, 2016

Ryan C. Allen, North Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Brooke Jackson, Ass't Att'y Gen., Little Rock, for appellee.

KAREN R. BAKER, Associate Justice

Appellant Jason Carroll Neal appeals the order of the Saline County Circuit Court denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2015). On appeal, Neal argues that the circuit court erred in finding that (1) Neal was not deprived of due process upon his expulsion from the drug-court program without a hearing; and (2) Neal did not receive ineffective assistance of counsel. We reverse the circuit court's order denying Neal's petition for postconviction relief and remand for a hearing consistent with this opinion.

Neal entered a plea of guilty to breaking and entering, possession of firearms by certain persons, and possession of drug paraphernalia.¹ The guilty-plea statement states that the maximum punishment for each of the charges is as follows: twenty years' imprisonment for the possession-of-firearms charge, six years' imprisonment for the possession-of-drug-paraphernalia charge, and six years' imprisonment for the breaking-and-entering charge. We note that, despite these maximum sentences equaling 384 months' imprisonment, the guilty-plea statement contained a provision stating, “I understand that the negotiated plea I am entering includes a recommended sentence of: 420 month's ADC.”²

Also, at the time of the entry of the guilty plea, Neal executed the “Saline County Adult Drug Court Admission Form and Order CR–14–465 & CR–14–232A.” The drug-court admission form contained an express waiver of rights, including a waiver of Neal's right to “any later Rule 37 Motions claiming ineffective assistance of counsel or any other constitutional grounds for release.” The form also stated, “I understand the Plea Agreement I am signing below is approximately 25% longer than would be available if I were not a Drug Court Participant. I hereby agree to the terms of the Judgment and Commitment Order, and I affirmatively state: I understand the Judgment and Commitment will be entered and the sentence will begin immediately if I am expelled from Drug Court for any reason. I understand the Judgment and Commitment is held in Abeyance and not dated or filed with the Circuit Clerk unless I am expelled from Drug Court.” Further, the form stated that Neal waived his “right to have legal notice, a hearing and/or any other rights I may have regarding due process prior to Drug Court sanctions (which sanctions may include but are not limited to: ... expulsion from Drug Court and execution of original sentence).”

On April 6, 2015, Neal was sentenced to 420 months' imprisonment for his alleged violation of the drug-court program. However, there is no record of the program rules or a hearing on the alleged violation although Rule 24.7 of the Arkansas Rules of the Criminal Procedure and Administrative Order Number 4 both require verbatim transcripts of the proceedings. The entirety of the April 6, 2015 sentencing proceeding is as follows:

COURT : Mr. Neal, in being sent out of the 90–day program you basically have given us no choice on this one. Um, at this point in time, we're imposing your sentence. It's 420 months in the Arkansas Department of Corrections.

NEAL : You Honor, can I ask you a question?

COURT : Sir?

NEAL : Can I ask a question?

COURT : Sure.

NEAL : When I—what I got wrote up for initially was dropped. They—then they in turn came and wrote me up, changed the write-up to a CR17. The lieutenant told me, said, Look, Neal, I done investigated it. We know y'all was horse-playing, but they're going to charge you with something that's cardinal rule so that you have to do some hold time. I said, Okay. I understand. He said, just do the hold time and go back. I said okay.

I go to court, and in that court proceeding it's just like this one. They've got—they push the tape recorder. It's being recorded, everything. They read my charge. They let me say something. I stepped out. I come back in and they said they're finding me guilty of the CR 17. I said okay. They said, do you want to say anything that might cause us to give you—I said, yes. I said, I've been here 60 days. Y'all interviewed me last week to be number two in charge. I didn't get a write-up or nothing the whole time I was there. Me and Jamie—Jamie's the coordinator. They interviewed me to be assistant coordinator. That would never have happened if I'd been cutting up like—you know that I mean?

I—I did—they never had to tell me to tuck my shirt in, shave or nothing. I did everything I was supposed to do. Yes, on the Friday night at 8:00 getting out of the shower about eight dudes in there, locker room, horse-playing. We were cutting up. And I was found guilty of that. I admit that. I did—and I was found guilty of horse-playing. And I admit that. I did do that. We were just cutting up.

They found me guilty of the CR17, but on the tape recording they—one of the options was to kick me out of the program. They said, this is what can happen if you're found guilty. I said—then they read it off. This is all recorded. I said, okay.

When they brought me back in and said they found me guilty, they said, 15 days in the hole and loss of privilege meaning I couldn't go in the commissary or nothing else when I got out. And that's on the tape recording. At that time, I went and I did 13 days of it. Ms. Gorham showed up to pick me up.

On—on the recording—if they were gonna—if they would have kicked me out of the program for what I did, they would have had to have said that in the court proceeding, that—what they—they found me guilty and this is what they were doing. Your Honor, I promise you, they gave me 15 days in the hole and that was it. This is on the tape. This is all on recording. I'm not—I didn't get—I went and did my—sat in the hole. I didn't have nothing but a Bible. I sat right there and read it. The only time I seen anybody was when they brought me a tray other than that. That 15 days was all they wanted. They did not tell me I was kicked out.

Now, what happened from the time that I got—went into the hole til the time Ms. Gorham showed up to get me—when they told me to dress out, I thought I was going back and I had two days left. In the court proceeding—I'm just asking you this: if they say this is what we're—this what your sentence is, is that not what it is? Or—

COURT : You're—and I'm going to answer it and we're gonna be done in about two seconds. The process of ADC punishment and ADC inter-workings is not something I have any control over. As I understand it, we were told—and there's no question about it. We were told to come get you.

It has—again, as I understand it, it has to do not only with that incident, but in general, Jason, you're not fit for this program because you don't want to—you don't want to do the things to get through this program that you have to do. And you end up with your negativism pulling everyone down. And we're done. You can take him.

NEAL : Well, I never had a chance to being with—

COURT : Mr. Mallory—

NEAL :—if that's the—if that's the case.

COURT : Mr. Mallory—

NEAL : You did exactly what I said y'all were gonna do. You gave me 35 years so that you could snow me in. I hope you're happy. When God judges you, I hope you get the same thing.

On April 22, 2015, Neal filed a motion to set aside the judgment and commitment. However, the record demonstrates that the circuit court failed to act on this motion. On May 28, 2015, Neal filed a petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. In his petition, Neal argued that the procedure established by the court for participation in the drug-court program is in violation of his right to due process because it allows for expulsion from the drug-court program without notice and a hearing and that he received ineffective assistance of counsel.

On August 20, 2015, the circuit court entered an order denying Neal's petition for postconviction relief without a hearing. On September 9, 2015, Neal filed his notice of appeal.

We will reverse the circuit court's decision granting or denying postconviction relief only when that decision is clearly erroneous. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). “A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed.” Id. at 292 (quoting Howard v. State, 367 Ark. 18, 26, 238 S.W.3d 24, 31 (2006) ).

On appeal, Neal argues that the circuit court erred in denying his petition for postconviction relief because his right to due process was violated when he was expelled from the drug-court program without a hearing, and these due-process rights were so fundamental that they could not be waived. To support his argument, Neal cites to Tornavacca v. State, 2012 Ark. 224, 408 S.W.3d 727. In response, the State argues that we should overrule Tornavacca because it permits a petitioner to raise due-process claims for the first time in a petition for Rule 37 relief. For the reasons that follow, we decline the State's invitation to overrule Tornavacca but instead extend its protections to the present case.

In Tornavacca, as in the present case, Tornavacca claimed a right to due process when he was subsequently expelled from the drug-court program. In holding that Tornavacca's due-process claim qualified as an issue that may be raised in a Rule 37 proceeding, we explained,

Moreover, “for many years, Arkansas has allowed collateral attacks upon a final conviction and appeal by means of a postconviction challenge to determine whether a sentence was void because it violated fundamental rights

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