Craig Burkhalter v. State of Arkansas

Jack Gordon GREENE v. STATE of Arkansas

CR 96-362                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 30, 1996


1.   Criminal procedure -- death penalty -- appeal may be withdrawn
     by competent appellant. -- An appeal, even when a death
     sentence is involved, may be withdrawn if done by a competent
     appellant.

2.   Criminal procedure -- death penalty -- motion to withdraw
     appeal denied. -- The supreme court declined to grant
     appellant's motion to withdraw his death-sentence appeal
     because it was not an unequivocal request.


     Motion to Withdraw Appeal; denied.
     William Pearson, for petitioner.
     No response.

     Per Curiam.
     The petitioner, Jack Gordon Greene, has filed two pro se
motions with the Court, and his attorney, William Pearson, has
filed a third motion seeking direction on how to proceed in view of
Mr. Greene's motions.  Mr. Greene's first motion is to withdraw his
appeal from his death sentence.  His second motion is styled,
"Motion Supplement of Record."  We deny Mr. Greene's motions.  Mr.
Pearson's question will be answered in the course of the opinion
that follows.
     The three motions have arisen from criminal proceedings in
Johnson County Circuit Court.  On July 26, 1991, Mr. Greene was
arrested in Norman, Oklahoma, for his role in the July 23, 1991
slaying of Sidney Burnett in Arkansas.  Mr. Greene was returned to
Arkansas to stand trial for capital murder in Johnson County.
     Apparently, after his return to Arkansas, but before the
Johnson County trial commenced, Mr. Greene was transported to North
Carolina to stand trial in an unrelated capital murder case.  The
appellate decision which arose from the North Carolina trial
suggests Mr. Greene was convicted of first-degree murder during
1992.  The North Carolina Supreme Court reversed the conviction and
ordered a new trial on January 28, 1994.  State v. Greene, 438 S.E.2d 743 (N.C. 1994).
     After his conviction in North Carolina, Mr. Greene was
extradited to Arkansas pursuant an executive agreement signed by
the governors of Arkansas and North Carolina on April 21, 1992.  It
appears extradition had been requested as early as August 22, 1991. 
In any event, Mr. Greene stood trial in Johnson County and was
convicted of capital murder and sentenced to death.
     Mr. Greene appealed to this Court, which, on June 20, 1994,
affirmed the conviction but held the exclusion of evidence of
mitigating circumstances was reversible error.  Another ground
stated for vacating the death sentence was that Mr. Greene's North
Carolina murder conviction, which the State had introduced as a
"prior violent felony," was subsequently reversed in State v.
Greene, supra.  We remanded the case to the Johnson County Circuit
Court for resentencing.  Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). 
     Mr. Greene remained on death row in Arkansas from the time of
this Court's decision to his resentencing.  On February 27, 1996,
a jury again imposed the death sentence.  Execution date was set
for April 9, 1996.  Greene's court-appointed counsel, Mr. Pearson,
filed a notice of appeal on March 11, 1996, and he filed a motion
for stay of execution and a partial record on March 22.  We granted
the motion for stay on April 1.  The entire record in the case has
now been lodged in this Court.
     Mr. Greene's first motion, filed on June 28, 1996, seeks to
withdraw his appeal from the death sentence imposed on February 27,
1996, and waive any further appeal.  In it he states he is being
held in Arkansas in violation of the extradition agreement, and he
claims he has remained on death row in violation of his right to
due process. 
     Mr. Greene's second motion seems to modify the request for
waiver of appeal presented in the first motion.  This time, Mr.
Greene asks us to reverse the death sentence and order his
extradition to North Carolina.  He claims this course of action is
required because (1) the State, during resentencing, again
introduced the North Carolina conviction as a "prior violent
felony"; and (2) the State has violated his rights, and the
extradition agreement, by refusing to return him to North Carolina
after his death sentence was vacated.  In the event the Court
denies this first request, Greene seeks to waive his appeal and
asks the Court to order his immediate execution.
     We note that the style of Mr. Greene's second motion suggests
it concerns supplementation of the record.  Prior to the submission
of the motion, Mr. Greene tendered some 100 pages of materials to
this Court.  The motion which followed does not, however, mention
those materials or give any reason for their inclusion in the
record.  
     Mr. Pearson, who is Mr. Greene's court-appointed counsel,
filed a motion on August 13, 1996, asking for direction on how to
proceed in view of Mr. Greene's requests. Mr. Pearson suggests we
should remand this case so that the Trial Court can determine, in
a competency hearing, whether Mr. Greene has knowingly and
voluntarily waived his right to appeal.  Mr. Pearson also states
that Mr. Greene has moved the Trial Court to relieve him as counsel
but that he will continue to represent Mr. Greene until the court
directs otherwise.  Finally, he repeats Mr. Greene's arguments in
support of reversing the death sentence.  He asks the Court to
"consider" and "address" the arguments that the North Carolina
conviction was improperly raised in the resentencing hearing and
that Greene is being held in violation of the extradition
agreement.  
     In previous cases we have recognized that an appeal, even when
a death sentence is involved, may be withdrawn if done by a
competent appellant.  Franz v. State, 296 Ark. 181, 754 S.W.2d 839
(1988); Remeta v. State, 294 Ark. 206, 740 S.W.2d 928 (1987).  In
those instances we prescribed the procedure to be followed to
assure that the appellant was sufficiently competent to take such
a serious step.  
     In this case, we decline to grant the motion to withdraw the
appeal because, unlike the requests in the Franz and Remeta cases,
it is not an unequivocal request.  While we recognize the
difficulties Mr. Pearson may face in representing Mr. Greene in the
circumstances presented, we consider Mr. Pearson's statement that
he will continue to represent Mr. Greene until relieved by a court
to be entirely proper.
     Motion to withdraw appeal denied.
     Glaze, J., concurs.
            TOM GLAZE, Associate Justice, concurring
     I concur only for the purpose of pointing out that the State
is not in violation of the "Executive Agreement" signed by Arkansas
and North Carolina.  The prosecution of Mr. Greene has never ended
in Arkansas, and in fact, he was retried, convicted, and sentenced
to death.  Mr. Greene has appealed that conviction and death
penalty to this court.  Arkansas is only obliged to return Mr.
Greene to North Carolina if the prosecution in this State is
terminated in any manner other than by the imposition of a judgment
and death sentence.