Opinion
Delivered July 13, 1987
The time has come to reexamine the need for postconviction relief procedure as provided for in Rule 37, Rules of Criminal Procedure.
It is not required of a state to have such a procedure. Pennsylvania v. Finley, No. 85-2099, slip op. at 4 (U.S. May 18, 1987).
Attorneys are provided free on appeals from denial of Rule 37 relief from the trial courts. This also is not a requirement. Pennsylvania v. Finley, supra.
Seldom is relief or a new trial granted under Rule 37. Yet, we are being inundated with petitions, mostly from inmates of the Arkansas Department of Correction, seeking relief under Rule 37. Each petition must be reviewed and considered, however involved, and most are lengthy and detailed. We have a fulltime lawyer and secretary serving to handle such petitions and assist the court. We have had to add another part-time lawyer to the staff. All of this work is related to petitions filed by prisoners. In 1986, 189 such petitions were filed with written opinions issued in the majority of the cases, usually finding them meritless. They are invariably handwritten, lengthy (a recent one was 100 pages long), and generally attempt to retry the case or attempt to prove their lawyer incompetent. The three year time limitation in which petitions may be filed is ignored. Also the rule that states only one petition may be filed is often ignored.
Grounds for relief vary according to our recent decisions. Ineffective assistance of counsel has become de regueur. Although we said in Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), a writ of coram nobis was being granted under extremely limited circumstances, coram nobis became the new byword. We still get petitions citing Penn v. State, supra, in cases which are not remotely close to that case. Now the petitioners are using Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1987), as a reason for relief. Ricarte was limited to cases in which a specific objection was made. In other words, petitioners use arguments that are fashionable rather than relevant or meaningful.
We know some relief should exist to set aside void convictions; however, the remaining grounds for relief should be reexamined.
Every criminal defendant in Arkansas is entitled to a competent lawyer and an appeal. If he cannot afford a lawyer, the state will provide one for him and a free record. But there should not be two appeals.
The federal courts, through the habeas corpus procedure, probably consider as many, if not more, petitions after an appeal as we do. Rule 37 is becoming merely an attempt to gain a second review of a case.
The review of criminal convictions has become virtually an interminable process. For example, in a given case there is the direct appeal, which we or the court of appeals decide. A petition for review can be filed with us for any decision the court of appeals makes. A rehearing petition may be filed in any event. If a United States constitutional issue is involved, the United States Supreme Court may be asked to review our decision, and in most criminal cases the United States Constitution is a consideration.
Then there is Rule 37. If we grant a hearing (sometimes the petition is filed with the trial court), it is remanded to the trial court. If the trial court denies relief, an appeal may be lodged with us. A free record and lawyer will be provided. If we deny relief, again the United States Supreme Court may be asked to review our decision, if a United States constitutional issue is involved.
Then, if these avenues are exhausted, a person can begin with similar relief provided in the federal courts. A petition may be filed with the United States District Court. If relief is denied, an appeal may be taken to the United States Court of Appeals, and ultimately to the United States Supreme Court again.
Cases in which the death penalty is imposed demonstrate that review can be drawn out for years and years. The process has to be fair, but it should not be duplicitous and interminable.
We refer to the Supreme Court Committee on Rules of Pleading, Practice and Procedure in Criminal Cases for consideration of the question of whether and under what circumstances should we provide for and maintain a postconviction proceeding.
PURTLE, J., concurs.
JOHN I. PURTLE, Justice, concurring. I concur with the Per Curiam that Rule 37, Rules of Criminal Procedure, needs careful reconsideration in light of the complexity of the current use of the Rule. However, I wish to express a word of caution to the Supreme Court Committee on Criminal Rules against going too far. There should be reasonable limitations, both as to grounds for relief and length of petitions, on requests for Rule 37 relief.
It is true the petitions are usually lengthy and frequently handwritten. I'm sure the inmates would prefer to dictate the petitions and have them typewritten. This would, of course, be more convenient for the Court. It is also true that the petitions generally attempt to retry the case or attempt to prove the trial lawyer incompetent. Moreover, the petitions frequently argue issues that were or should have been addressed on direct appeal. Nevertheless, the courts must address the statutory and constitutional rights of people who are unfortunate enough to be in prison. Furthermore, I can understand that practically every inmate would rather have freedom. They should not be penalized for attempting to claim what is theirs as a matter of right.
The appellate process in Arkansas, like that in the other forty-nine states, is extended by the federal courts. It is absolutely necessary for federal courts to have the right to determine whether an individual has been denied any rights guaranteed by the Constitution. However, it is not necessary that the procedures in the state and federal courts make the appellate process interminable. Perhaps if the federal courts did not intrude so deeply into other affairs of the states, they would have more time to expedite these appeals.
The convenience of the courts should be considered. However, that convenience must give way to the rights of individuals. I do not interpose objections to a reasonable streamlining of Rule 37, but I would strenuously oppose any attempt to emasculate it.