Ward v. State

• Decision Date: 26 February 2015
• Docket Number: No. CR–00–1322,CR–00–1322
• Citation: 455 S.W.3d 830,2015 Ark. 62
• Parties: Bruce Earl Ward, Petitioner v. State of Arkansas, Respondent
• Court: Arkansas Supreme Court

2015 Ark. 62

455 S.W.3d 830

Bruce Earl Ward, Petitioner

v.State of Arkansas, Respondent

No. CR–00–1322

Supreme Court of Arkansas.

Opinion Delivered February 26, 2015

Rehearing Denied April 9, 2015

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., Little Rock, for respondent.

Opinion

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 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 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, 2014 WL 4649476 (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 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, 231 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 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 Woolen 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 in abeyance where the death penalty has been imposed. See, e.g. Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (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,...