Collins v. State

Jeffrey Lee COLLINS v. STATE of Arkansas

CR 95-956                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 6, 1996


1.   Criminal procedure -- postconviction relief -- time to file
     notice of appeal does not expire until thirty days after
     disposition of motion for reconsideration -- appellant's
     notice was timely filed. -- Under Ark. R. Crim. P. 36.22,
     where "any motion or other application for relief" is filed in
     the trial court by a person convicted of a felony or a
     misdemeanor, the time to file a notice of appeal does not
     expire until thirty days after the disposition of all motions
     or applications; the terms of Rule 36.22 are broad and include
     a motion for reconsideration of the denial of postconviction
     relief in the category of "other application for relief";
     thus, where appellant filed a motion for reconsideration after
     the denial of his petition for postconviction relief, he had
     thirty days from the disposition of his motion for
     reconsideration in which to file a notice of appeal;
     appellant's notice of appeal was therefore timely filed five
     days after the denial of the motion for reconsideration and
     did not create a jurisdictional problem for the supreme court.

2.   Appeal & error -- postconviction relief -- review of denial of
     -- when reversed. -- The supreme court will reverse a trial
     court's denial of postconviction relief only if its findings
     are clearly erroneous or clearly against the preponderance of
     the evidence.

3.   Appeal & error -- postconviction relief -- errors so
     fundamental as to render judgment void and subject to
     collateral attack may be raised in Rule 37 proceedings --
     exception applicable to appellant's case. -- Although even
     constitutional issues must be raised in the trial court and on
     direct appeal, rather than in A.R.Cr.P. Rule 37 proceedings,
     the supreme court has made an exception for errors that are so
     fundamental as to render the judgment of conviction void and
     subject to collateral attack; this exception is limited to
     cases that comply with the time requirements of Rule 37;
     appellant satisfied the sixty-day filing requirement of
     A.R.Cr.P. Rule 37.2(c).

4.   Jury -- right to trial by twelve-member jury is fundamental
     right -- violation renders judgment void -- appellant could
     raise issue for first time in Rule 37 proceedings. -- The
     right to trial by a twelve-member jury is a fundamental right,
     the violation of which renders the judgment void and subject
     to collateral attack; the supreme court concluded that
     appellant could raise the issue of his constitutional right to
     be tried by a jury of twelve members for the first time in
     Rule 37 proceedings.

5.   Jury -- violation of appellant's jury-trial right required new
     trial -- judgment reversed and remanded. -- Where appellant,
     who was convicted by an eleven-member jury, did not waive his
     right to trial by a twelve-member jury personally in writing
     or in open court, the violation of his jury-trial right
     required that he receive a new trial, and the supreme court
     reversed the judgment and remanded for a new trial.


     Appeal from Drew Circuit Court; Don E. Glover, Judge; reversed
and remanded.
     Steven E. Cauley, P.A., by: Steven E. Cauley, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen. and Senior App. Advocate, for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 5-6-96  *ADVREP2*





JEFFREY LEE COLLINS,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



CR 95-956



APPEAL FROM THE DREW COUNTY
CIRCUIT COURT,
NO. CR 92-9-1,
HON. DON E. GLOVER, JUDGE,



REVERSED AND REMANDED.



                   Donald L. Corbin, Justice.


     Appellant, Jeffrey Lee Collins, appeals the judgment of the
Drew County Circuit Court denying his petition for post-conviction
relief under Ark. R. Crim. P. 37.1.  Jurisdiction of this appeal is
properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(5). 
Appellant raises four points for reversal.  We find merit to the
first point concerning appellant's right to be tried by a twelve-
member jury, and therefore reverse and remand for a new trial.
     Appellant was charged by information filed January 31, 1992,
with rape and two counts of third-degree carnal abuse.  The
information charged that appellant had engaged in sexual
intercourse or deviate sexual activity with D.D., who was aged
fourteen years at the time, and that appellant had engaged in
sexual intercourse with A.T., who was aged eleven years at the
time.  Following trial, the jury convicted appellant of two counts
of third-degree carnal abuse and sentenced him on each count to one
year in the county jail and fined him $1,000.00.  The jury also
convicted appellant of rape and sentenced him to twenty years
imprisonment.  Appellant appealed, and the convictions were
affirmed in a non-published opinion by the Arkansas Court of
Appeals (CACR 93-578, June 15, 1994).
     Appellant obtained new counsel and filed his petition for
post-conviction relief pursuant to Rule 37.  The trial court held
a hearing on the petition, but the record was destroyed when the
storage room where it was kept was vandalized.  In accordance with
Ark. R. App. P. Rule 6(d), appellant's counsel filed a statement of
the proceedings from the Rule 37 hearing; the state did not file
any objections.  According to the statement of the proceedings,
appellant raised three points at the hearing: that his conviction
was unconstitutional because it was rendered by a jury of eleven,
that his conviction was unconstitutional because his trial counsel
was ineffective, and that he was entitled to relief because the
victim repudiated her trial testimony.
     The trial court denied the petition for post-conviction relief
by order filed April 12, 1995.  Appellant filed a motion for
reconsideration on April 20, 1995, which the trial court denied on
May 26, 1995.  Appellant filed his notice of appeal to this court
on May 31, 1995.  
     Prior to considering appellant's arguments for reversal of the
judgment denying his petition for post-conviction relief, we
address a jurisdictional question raised by appellee.  The state
contends that appellant filed his notice of appeal late, and
therefore, this court is without jurisdiction to hear this appeal. 
The state argues that appellant's motion for reconsideration of the
order denying his post-conviction relief did not extend the time
appellant had to file his notice of appeal.  The state bases its
argument on the fact that a motion for reconsideration is not one
of the three post-trial motions listed in Ark. R. App. P. 4(b). 
The state recognizes and appellant argues that Ark. R. Crim. P.
36.22 establishes a broad rule as to what motions will extend the
time in which to file a notice of appeal.  However, the state
argues that Rule 36.22 only applies to true post-trial motions and
not to post-conviction proceedings.  The state concedes that if
Ark. R. Crim. P. 36.22 is controlling, the notice of appeal was
timely.  
     Rule 36.9 of the Arkansas Rules of Criminal Procedure provides
that appeals may be taken within thirty days of the date of entry
of an order denying a "a post-trial motion under Rule 36.22" or
"the date of entry of an order denying a petition for post-
conviction relief under Rule 37."  Ark. R. Crim. P. 36.9(a)(2) and
(a)(4).  As outlined earlier in this opinion, the trial court
entered the order denying appellant's petition for post-conviction
relief on April 12, 1995, making appellant's notice of appeal due
May 12, 1995, pursuant to Rule 36.9.  However, appellant filed a
motion for reconsideration on April 20, 1995, and the trial court
did not deny this motion until May 26, 1995.  Appellant filed his
notice of appeal five days later on May 31, 1995.
     Arkansas Rule of Criminal Procedure 36.22 provides:
          A person convicted of either a felony or misdemeanor
     may file a motion for new trial, a motion in arrest of
     judgment, or any other application for relief, but all
     motions or applications must be filed prior to the time
     fixed to file a notice of appeal. . . .  Upon the filing
     of any motion or other application for relief in the
     trial court, the time to file a notice of appeal shall
     not expire until thirty (30) days after the disposition
     of all motions or applications.  [Emphasis added.]

The terms of Rule 36.22 are broad and include a motion for
reconsideration of the denial of post-conviction relief in the
category of "other application for relief."  Thus, the last
sentence of Rule 36.22 makes it clear that, because he filed the
motion for reconsideration prior to the time fixed to file a notice
of appeal, appellant had thirty days from the disposition of his
motion for reconsideration in which to file a notice of appeal. 
Appellant's notice of appeal was therefore timely filed on May 31,
1995, five days after the denial of the motion for reconsideration,
and does not create a jurisdictional problem for this court.
     Appellant's first argument for reversal is that the trial
court erred in denying his petition for post-conviction relief
because he was denied his right under the Arkansas Constitution to
be tried by a twelve-member jury.  This court will reverse a trial
court's denial of post-conviction relief only if its findings are
clearly erroneous or clearly against the preponderance of the
evidence.  Vickers v. State, 320 Ark. 437, 441, 898 S.W.2d 26, 28
(1995).
     The pertinent underlying facts are these.  After twelve jurors
were seated in appellant's trial, the trial court inquired as to
whether counsel wanted alternate jurors or whether it was agreed by
counsel that the case would be tried to the twelve jurors already
chosen or their survivors.  The prosecuting attorney answered yes,
and appellant and his trial counsel did not respond.  The jury was
then sworn, and the trial proceeded.  During the trial, the court
received a note that the daughter of one of the jurors was being
hospitalized.  The juror was excused.  The trial resumed with no
discussion concerning the now eleven-member jury.
     Appellant asserts that he had a constitutional right to be
tried by a jury of twelve members and that he did not expressly
waive that right.  The state responds that appellant is barred from
raising this point on appeal because he did not raise it as a
"free-standing" issue before the trial court; rather, he made his
eleven-person-jury argument as one of several bases for his
ineffective-assistance-of-counsel claim.  The state further
responds that even if this point were properly before the trial
court, it would not have erred in denying the post-conviction
relief because, pursuant to Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988), a defendant cannot obtain post-conviction relief
on the basis of mere errors, even constitutional errors.
     On the record presented to us, we conclude this issue was
properly before the trial court.  The state is correct in citing
Finley, for the proposition that even constitutional issues must be
raised in the trial court and on direct appeal, rather than in Rule
37 proceedings.  However, this court has made an exception for
errors that are so fundamental as to render the judgment of
conviction void and subject to collateral attack.  Finley, 295 Ark.
357, 748 S.W.2d 643; Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934
(1980).  We have limited this exception to cases that comply with
the time requirements of Rule 37.  Prince v. State, 315 Ark. 492,
868 S.W.2d 77, cert. denied, 114 S. Ct. 1857 (1994).  As applied to
this case, Rule 37.2(c) provides that the Rule 37 petition must be
filed within sixty days of the date the court of appeals issued the
mandate, July 6, 1994.  Appellant satisfied this requirement by
filing his petition in circuit court on September 2, 1994.
     We must determine then whether the denial of the right to a
twelve-person jury is an error so fundamental as to render the
judgment of conviction void and subject to collateral attack.  The
answer to that question, in turn, answers the question of whether
appellant can raise this argument for the first time in post-
conviction proceedings.
     In Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690
(1995), this court cited Williams v. Florida, 399 U.S. 78 (1970),
and recognized that a twelve-member jury is not a necessary
ingredient of the Sixth Amendment right to trial by jury, made
applicable to the states through the Fourteenth Amendment. 
However, we referred to Byrd v. State, 317 Ark. 609, 879 S.W.2d 435
(1994), in concluding that the guarantee in Ark. Const. art. 2,  7
of a defendant's right to a jury trial meant the right to be tried
by a twelve-member jury and that such right must be waived in the
manner prescribed by law.  See also, Calnan v. State, 310 Ark. 744,
841 S.W.2d 593 (1992).  We referred to Rules 31.1 through 31.5 of
the Rules of Criminal Procedure as establishing the process for
waiver and explained that:
     [E]xcept in misdemeanor cases where only a fine is
     imposed by the court, a defendant must waive his right
     personally either in writing or in open court and the
     waiver must be assented to by the prosecutor and approved
     by the court; a verbatim record of the waiver is
     required. . . .  [I]t is the court's burden to ensure
     that, if there is to be a waiver, the defendant waives
     her right to trial by jury in accordance with the
     Arkansas Constitution and Rules of Criminal Procedure.
Grinning, 322 Ark. at 48-49, 907 S.W.2d  at 691-92.  We further
explained that the denial of the right to a jury trial is a serious
error for which the trial court should intervene and is an
exception to the contemporaneous objection rule.  322 Ark. at 49,
907 S.W.2d  at 692.  See also Calnan, 310 Ark. 744, 841 S.W.2d 593. 
We quoted the Arkansas Court of Appeals in referring to the right
to trial by jury as a "fundamental constitutional right." 
Grinning, 322 Ark. at 50, 907 S.W.2d  at 692.  Consistent with
Calnan and Grinning, we conclude that the right to trial by a
twelve-member jury is a fundamental right, the violation of which
renders the judgment void and subject to collateral attack. 
Therefore, we conclude that appellant may raise this issue for the
first time in Rule 37 proceedings.
     The facts as recited previously clearly reflect that appellant
was convicted by an eleven-member jury.  Appellant did not waive
his right to trial by a twelve-member jury personally in writing or
in open court.  Thus, the facts are equally clear that no waiver
"in the manner prescribed by law" occurred in this case.  
     The violation of appellant's jury-trial right requires that
appellant receive a new trial.  We must therefore reverse the
judgment and remand for a new trial.  Having granted the requested
relief of a new trial, we need not address appellant's remaining
arguments for reversal of the denial of his post-conviction
petition.
     Reversed and remanded.    
     Dudley, J., not participating.