Sedric Maurice Simpson v. State of Arkansas

Sedric Maurice SIMPSON v. SHERIFF OF 
DALLAS COUNTY, Arkansas

CR 98-423                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 14, 1998


1.   Jurisdiction -- Arkansas Constitution confers on supreme court
     authority to entertain and grant petitions for writs of habeas
     corpus. -- Article 7, section 4, of the Arkansas Constitution
     confers on the supreme court the authority to entertain and
     grant petitions for writs of habeas corpus filed originally in
     the supreme court.

2.   Jurisdiction -- habeas corpus statute allows members of
     supreme court to issue writ "upon proper application" -- power
     of court to issue writs is coextensive with state. -- A habeas
     corpus statute, Ark. Code Ann.  16-112-102(a)(1)(1987),
     allows members of the supreme court to issue the writ "upon
     proper application" and further provides that the power of the
     Court "to issue writs of habeas corpus shall be coextensive
     with the state"; although the nature of the court's
     jurisdiction may in form be original, it is in fact appellate.
     

3.   Habeas corpus -- petition for -- when granted -- According to
     Ark. Code Ann.  16-112-103(a)(1987), a writ of habeas corpus
     shall be granted by any of the officers enumerated in  16-
     112-102(a), including members of the supreme court, to any
     person who shall apply for the writ by petition showing, by
     affidavit or other evidence, probable cause to believe he is
     detained without lawful authority or is imprisoned when by law
     he is entitled to bail.

4.   Habeas corpus -- "typical" case -- when petitioner's detention
     not seen as "without lawful authority." -- In the "typical"
     habeas corpus case, the petitioner files his or her request
     for relief after he or she has been tried for an offense,
     convicted, sentenced, and then incarcerated, through a formal
     judgment and commitment order, in a correctional facility; in
     that context, the supreme court invariably declines to view
     the petitioner's detention as one "without lawful authority,"
     and thus denies the habeas petition, unless (1) the commitment
     or judgment of conviction is invalid on its face, or (2) the
     court that committed the petitioner lacked jurisdiction over
     the cause; an application for habeas corpus cannot be made to
     perform the function of an appeal, or writ of error, in
     correcting errors and irregularities at the trial. 

5.   Habeas corpus -- extraordinary remedy -- when invoked. -- The
     writ of habeas corpus has been for centuries esteemed the best
     and only sufficient defense of personal freedom; the
     "extraordinary remedy" of the writ of habeas corpus may be
     invoked when no other effective means of relief is at hand.

6.   Habeas corpus -- detainee held in violation of Ark. Rule Crim.
     P. 28.1(a) -- no way of obtaining appellate review of trial
     judge's adverse ruling on his motion for release unless
     detainee allowed to bring petition for extraordinary writ in
     supreme court. -- A detainee who is held in violation of Ark.
     R. Crim. P. 28.1(a) has no way of obtaining appellate review
     of a trial judge's adverse ruling on his or her motion for
     release unless the detainee is allowed to bring in the supreme
     court a petition for an extraordinary writ; a person held in
     violation of Rule 28.1(a) is only entitled to release on his
     or her own recognizance, not dismissal of the charges or
     absolute discharge.  

7.   Criminal procedure -- trial judge's erroneous denial of
     detainee's request for release under Rule 28.1(a) may become
     moot issue -- alleged violation of Rule 28.1(a) not basis for
     reversal. -- If the trial judge erroneously denies the
     detainee's request for release under Rule 28.1(a), and the
     detainee is then tried and convicted and does not challenge
     the trial judge's release decision until his or her direct
     appeal, the issue would be moot; in that situation, the
     detainee would have no way to enforce the right to release
     guaranteed by Rule 28.1(a); an alleged violation of Rule
     28.1(a) is not a basis for reversal. 

8.   Habeas corpus -- possible availability of mandamus does not
     foreclose availability of habeas corpus writ to pretrial
     datainee in petitioer's situation. -- The possible
     availability of mandamus to a trial judge does not foreclose
     the availability of the writ of habeas corpus to a pretrial
     detainee who claims only that his detention is unlawful
     because he has been held there for more than nine months
     without having been brought to trial. 

9.   Habeas corpus -- pretrial detainee denied motion for release
     under Rule 28.1(a) may file petition for habeas corpus in
     supreme court. -- When a pretrial detainee has moved in the
     trial court for his release under Rule 28.1(a), and that
     motion is denied, the detainee may then file in the supreme
     court a petition for habeas corpus seeking his or her release
     under that rule; a detention in violation of Rule 28.1(a)
     qualifies as detention "without lawful authority" as that
     phrase is used in  16-112-103(a) and as it applies to a judge
     or another person or officer, such as a sheriff.

10.  Criminal procedure -- Ark. R. Crim. P. 28.1(a) -- burden on
     State to justify delay in holding petitioner more than nine
     months. -- Arkansas Rule of Criminal Procedure 28.1(a)
     requires a defendant charged with an offense in circuit court
     and incarcerated in a city or county jail in this state
     pending trial to be released on his or her own recognizance if
     not brought to trial within nine months from the time provided
     in Rule 28.2, excluding only such periods of necessary delay
     as are authorized in Rule 28.3; here, the nine-month period
     commenced on the date of petitioner's arrest and expired on
     March 20, 1998; appellant was still being detained in jail and
     had not been brought to trial; thus, the burden was on the
     State to show that the delay was the result of the
     petitioner's conduct or was otherwise justified.

11.  Criminal procedure -- State met burden of justifying delay --
     time in which pretrial motions filed by petitioner held under
     advisement excludable. -- The State satisfied its burden of
     showing that the delay was the result of the defendant's
     conduct or was otherwise justified where the petitioner had
     filed numerous pretrial motions, many of which were still
     under advisement in the circuit court; Rule 28.3(a) excludes
     the time in which a pretrial motion is held under advisement
     in computing the time for trial.   

12.  Habeas corpus -- petitioner's detention not in violation of
     Rule 28.1(a) -- petition for writ denied. -- The circuit court
     was correct in excluding at least sixty-eight days from the
     detention time for purposes of the rule; petitioner remained
     within the nine-month period that commenced on June 20, 1997,
     and his detention was not in violation of Rule 28.1(a); the
     petition for the writ of habeas corpus was denied.


     Petition for Writ of Habeas Corpus; denied.
     Robert N. Jeffrey, Public Defender, for appellant.
     Tom Wynne, Prosecuting Att'y, for appellee.


     Per Curiam.
     Sedric Maurice Simpson has petitioned this Court for a writ of
habeas corpus based on his alleged unlawful detention in violation
of Ark. R. Crim. P. 28.1(a).  We must decide whether a pretrial
detainee may claim a violation of Rule 28.1(a) through a petition
for a writ of habeas corpus filed in this Court and, if so, whether
Mr. Simpson is in fact being detained in violation of that rule. 
We hold that a pretrial detainee may seek a writ of habeas corpus
in this Court, following an adverse ruling below, for the purpose
of determining whether he or she is being detained in violation of
Rule 28.1(a).  We conclude, however, that Mr. Simpson's detention
does not violate Rule 28.1(a) and that he, therefore, is not
entitled to the writ.  
     Mr. Simpson and Ezekiel Thomas Harrison, Jr., were arrested on
June 20, 1997, in connection with the deaths of Wendy Lynn
Pennington and Lena Sue Garner.  An information was filed in the
Dallas County Circuit Court on September 5, 1997, charging Mr.
Simpson and Mr. Harrison each with two counts of capital murder and
two counts of aggravated robbery.  Since his arrest, Mr. Simpson
has remained in the Dallas County Jail awaiting trial.
     On March 23, 1998, Mr. Simpson filed a motion in the Circuit
Court asserting that, as he had been incarcerated for more than
nine months without having been brought to trial, he was entitled
by Rule 28.1(a) to be released on his own recognizance subject to
an order to appear for trial on May 26, 1998.  Under Rule 28.1(a),
"[a]ny defendant charged with an offense in circuit court and
incarcerated in a city or county jail in this state pending trial
shall be released on his own recognizance if not brought to trial
within nine (9) months from the time provided in Rule 28.2,
excluding only such periods of necessary delay as are authorized in
Rule 28.3."
     The Circuit Court denied the motion at the conclusion of a
hearing held on April 7, 1998.  Mr. Simpson then filed in this
Court a petition for a writ of habeas corpus directing the Dallas
County Sheriff to discharge him from custody pursuant to Rule
28.1(a).

                        1.  Habeas corpus
     As a threshold matter, we must determine whether a pretrial
detainee who claims that his detention violates Ark. R. Crim. P.
28.1(a) may raise that claim in this Court through a petition for
a writ of habeas corpus after having pursued the claim in a trial
court unsuccessfully.  We hold that he may.

                        a.  Jurisdiction
     In response to the petition, the Sheriff suggests that we lack
jurisdiction to consider it.  Without citation to authority, the
Sheriff argues that Mr. Simpson's action "is an original proceeding
for a writ of habeas corpus" and that "jurisdiction for an original
proceeding for a writ of habeas corpus lies in Circuit Court."
     Article 7,  4, of the Arkansas Constitution, in the following
passage, confers on this Court the authority to entertain and grant
petitions for writs of habeas corpus filed here originally:

          The Supreme Court . . .  shall have a general
     superintending control over all inferior courts of law
     and equity; and, in aid of its appellate and supervisory
     jurisdiction, it shall have power to issue writs of error
     and supersedeas, certiorari, habeas corpus, prohibition,
     mandamus and quo warranto, and, other remedial writs, and
     to hear and determine the same.  Its judges shall be
     conservators of the peace throughout the State, and shall
     severally have power to issue any of the aforesaid writs.

Ark. Const., Art. 7,  4 (emphasis added).  See also State ex. rel.
Arkansas Industrial Co. v. Neel, 48 Ark. 283, 3 S.W. 631 (1886); In
re Beard, 4 Ark. 9, 4 Pike 9 (1842)("That this court has full power
to issue writs of habeas corpus, and to try and determine the same,
cannot be denied . . . .").
     We note, as well, that a habeas corpus statute allows members
of this Court to issue the writ "upon proper application" and
further provides that the power of this Court "to issue writs of
habeas corpus shall be coextensive with the state."  Ark. Code Ann.
 16-112-102(a)(1)(1987).  Although the nature of our jurisdiction
may "in form" be "original," it is "in fact appellate."  Ark. Sup.
Ct. R. 6-1(a).  See also Bryant v. Ruff, 303 Ark. 330, 798 S.W.2d 417 (1990); Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968). 
     A summary review of our cases reveals that Mr. Simpson's is
not the first habeas petition to be filed, and considered, in this
Court as an original action.  See, e.g., In re Rook v. Sheriff, 323
Ark. 443, 914 S.W.2d 316 (1996); Renton v. State, 265 Ark. 223, 577 S.W.2d 595 (1979); Morris v. State, 229 Ark. 77, 313 S.W.2d 241
(1958); Ex parte Robins, 15 Ark. 402 (1855); Ex parte White, 9 Ark.
222, 4 Eng. 222 (1848).

                    b.  Propriety of the writ
     That we have jurisdiction to consider Mr. Simpson's petition
for a writ of habeas corpus does not answer the question whether we
should issue the writ to remedy a pretrial detention in violation
of Ark. R. Crim. P. 28.1(a).  As best we can tell, this is an issue
of first impression for this Court.
     According to Ark. Code Ann.  16-112-103(a)(1987),

     [t]he writ of habeas corpus shall be granted forthwith by
     any of the officers enumerated in  16-112-102(a)
     [including members of this Court] to any person who shall
     apply for the writ by petition showing, by affidavit or
     other evidence, probable cause to believe he is detained
     without lawful authority or is imprisoned when by law he
     is entitled to bail.  [Emphasis added.]

     As Mr. Simpson does not seek the writ on the ground that he is
entitled to bail, see Renton v. State, supra; City of Clinton v.
Jones, 302 Ark. 109, 111, 787 S.W.2d 242, 244 (1990), the question
is whether the claim of a pretrial detainee of detention in
violation of Rule 28.1(a) suffices as a claim of detention "without
lawful authority" within the meaning of  16-112-103(a).
     As mentioned, we have found no case in which we have
considered the availability of the habeas corpus remedy to a
pretrial detainee held in violation of Rule 28.1(a).  We once said
in an obiter dictum that, "if a judge refuses to release a
defendant after nine months as provided in the rule, the remedy is
to seek a writ of mandamus from this court."  Jackson v. State, 
290 Ark. 375, 386, 720 S.W.2d 282, 287 (1986).  We have not,
however, discussed whether a detention in violation of that rule
qualifies as detention "without lawful authority" as that phrase is
used in  16-112-103(a) and as it applies to a judge or another
person or officer, such as a sheriff.
     In the "typical" habeas corpus case, the petitioner files his
or her request for relief after he or she has been tried for an
offense, convicted, sentenced, and then incarcerated, through a
formal judgment and commitment order, in a correctional facility. 
In that context, we invariably decline to view the petitioner's
detention as one "without lawful authority," and thus deny the
habeas petition, unless (1) the commitment or judgment of
conviction is invalid on its face, or (2) the court that committed
the petitioner lacked jurisdiction over the cause.  See, e.g.,
Sawyer v. State, 327 Ark. 421, 422, 938 S.W.2d 843, 844 (1997);
Davis v. Reed, 316 Ark. 575, 577, 873 S.W.2d 524, 525 (1994).  As
we often say in those cases, "an application for habeas corpus
cannot be made to perform the function of an appeal, or writ of
error, in correcting errors and irregularities at the trial." 
Mitchell v. State, 233 Ark. 578, 581, 346 S.W.2d 201, 203 (1961). 
See Goodman v. Storey, Sheriff, 221 Ark. 308, 254 S.W.2d 63 (1952).
     Mr. Simpson is, however, in a position different from the
habeas petitioner ordinarily encountered.  He has not been tried or
convicted.  He has not been sentenced, and he has not been
"committed" to a correctional facility by way of a judgment and
commitment order.  There is no commitment order or judgment of
conviction, and thus we cannot determine whether such documents are
"valid on their face," and there is no suggestion that the Dallas
County Circuit Court "lacks jurisdiction over the cause."  Mr.
Simpson claims only that his detention in the Dallas County Jail is
unlawful because he has been held there for more than nine months
without having been brought to trial.
     Chief Justice John Marshall once referred to the writ of
habeas corpus as the "great writ," Ex parte Bollman, 4 Cranch 75,
95 (1807), and the writ "has been for centuries esteemed the best
and only sufficient defence of personal freedom."  Ex parte Yerger,
8 Wall. 85, 95 (1869).  Justice George Rose Smith observed nearly
fifty years ago that the "extraordinary remedy" of the writ of
habeas corpus may "be invoked when no other effective means of
relief is at hand."  Haller v. Ratcliffe, 215 Ark. 628, 629, 221 S.W.2d 886, 887 (1949).
     That is the case here.  A detainee who is held in violation of
Rule 28.1(a) has no way of obtaining appellate review of a trial
judge's adverse ruling on his or her motion for release unless we
allow the detainee to bring in this Court a petition for an
extraordinary writ.  As our cases make clear, a person held in
violation of Rule 28.1(a) is only entitled to release on his or her
own recognizance, not dismissal of the charges or absolute
discharge.  Green v. State, 313 Ark. 87, 91, 852 S.W.2d 110, 112-13
(1993); Brawley v. State, 306 Ark. 609, 614, 816 S.W.2d 598, 601
(1991) (Dudley, J., concurring); Jurney v. State, 298 Ark. 91, 93,
766 S.W.2d 1, 2 (1989).
     Thus, if the trial judge erroneously denies the detainee's
request for release under Rule 28.1(a), and the detainee is then
tried and convicted and does not challenge the trial judge's
release decision until his or her direct appeal, the issue would be
moot.  In that situation, the detainee would have no way to enforce
the right to release guaranteed by Rule 28.1(a).  As we have held,
an "[a]lleged violation of Rule 28.1(a) is not a basis for
reversal."  Matthews v. State, 313 Ark. 327, 332, 854 S.W.2d 339,
342 (1993).  See also Jackson v. State, 290 Ark. at 386, 720 S.W.2d  
at 287 (stating violations with respect to bail and release matters
"are not the sort for which we will reverse an otherwise valid
conviction"), citing Orsini v. State, 281 Ark. 348, 665 S.W.2d 245
(1984).
     Thus, absent a rule allowing a petitioner in Mr. Simpson's
position to seek a writ of habeas corpus in this Court, there is,
in Justice George Rose Smith's words, "no other effective means of
relief . . . at hand."  Haller v. Ratcliffe, supra.  We remain
mindful of our obiter suggestion in Jackson v. State, supra, that
the remedy of a pretrial detainee who is denied release under Rule
28.1(a) is to seek a writ of mandamus to the trial judge in this
Court.  We have no reason to hold that the possible availability of
mandamus to a trial judge forecloses the availability of the writ
of habeas corpus to a detainee in Mr. Simpson's position.
     We note with approval the many decisions from other
jurisdictions allowing a pretrial detainee to seek a writ of habeas
corpus in an appellate court following a trial court's refusal to
release him or her pursuant to "own recognizance" release
provisions similar to our Rule 28.1(a) or other "speedy-trial"
provisions.  See, e.g., Beicke v. Boone, 527 So. 2d 273 (Fla.App. 1
Dist. 1983); Owens v. Duryee, 285 Or. 75, 589 P.2d 1115 (1979);
State v. Hill, 299 So. 2d 625 (Fla.App. 1 Dist. 1974); State v.
Gundell, 298 So. 2d 504 (Fla.App. 1 Dist. 1974).
     A thoughtful treatment of this issue appears in the New York
Court of Appeals decision in People ex rel. Chakwin v. Warden, New
York City Correctional Facility, Rikers Island, 63 N.Y.2d 120, 480 N.Y.S.2d 719, 470 N.E.2d 146 (1984).  The release provision at
issue in the Chakwin case provided for the detainee's release on
bail or upon his own recognizance if the State was not ready for
trial within 90 days after the detainee's arrest.  The detainee was
allowed to commence habeas proceedings in the Court of Appeals for
the purpose of reviewing the trial judge's adverse release
decision.  The Court observed that, unless the detainee were
allowed to seek the writ there, he would have

     no way to effectively appeal an adverse ruling. 
     Obviously, once the defendant's case is tried the
     legality of his pretrial detention is mooted and the
     relief guaranteed by CPL 30.30 (subd. 2) would be
     academic on direct appeal from a judgment of conviction. 
     Thus, the present situation is one where "[d]eparture
     from traditional orderly proceedings, such as appeal,
     should be permitted * * * by reason of practicality and
     necessity . . . ."

470 N.E.2d   at 148.  The New York courts continue to follow the rule
announced in the Chakwin case.  See, e.g., People ex rel. Zoli v.
Warden, New York City Correctional Facility, 236 A.D.2d 643, 654 N.Y.S.2d 668 (A.D. 2 Dept. 1997); People ex rel. Greenstein v.
Sheriff of Schenectady County, 220 A.D.2d 190, 645 N.Y.S.2d 339
(A.D. 3 Dept. 1996).
     We hold that, when a pretrial detainee has moved in the trial
court for his or her release under Rule 28.1(a), and that motion is
denied, the detainee may then file in this Court a petition for a
writ of habeas corpus seeking his or her release under that rule.

                  2.  Ark. R. Crim. P. 28.1(a)
     As to the merits of Mr. Simpson's petition, we conclude the
Circuit Court was correct in declining Mr. Simpson's motion to be
released in accordance with Rule 28.1(a).  The Rule requires a
defendant "charged with an offense in circuit court and
incarcerated in a city or county jail in this state pending trial"
to be "released on his own recognizance if not brought to trial
within nine (9) months from the time provided in Rule 28.2,
excluding only such periods of necessary delay as are authorized in
Rule 28.3."  According to Rule 28.2(a), the nine-month period
commenced on June 20, 1997, the date of Mr. Simpson's arrest.  The
nine-month period expired on March 20, 1998, and Mr. Simpson is
still being detained in the Dallas County Jail and has not been
brought to trial.  Thus, "the burden is upon the State to show that
the delay was the result of the defendant's conduct or was
otherwise justified."  Bradford v. State, 329 Ark. 620, 622, 953 S.W.2d 549, 550 (1997). 
     The State has satisfied its burden.  Mr. Simpson has filed
numerous pretrial motions, many of which are still under advisement
in the Circuit Court.  According to Rule 28.3(a), the time in which
a pretrial motion is held under advisement, up to 30 days, may be
excluded in computing the time for trial.  See State v. McCann, 313
Ark. 286, 288-89, 853 S.W.2d 886, 888 (1993); Matthews v. State,
313 Ark. 327, 332, 854 S.W.2d 339, 342 (1993).  
     The Circuit Court determined that 68 days should be excluded
from the speedy-trial calculation and charged against Mr. Simpson. 
The pretrial motions filed by Mr. Simpson appear in the record and
are stamped with the date of their filing.  Our own calculations
based on the record indicate the Circuit Court was correct in
excluding at least 68 days from the detention time for purposes of
the rule.  Mr. Simpson thus remains within the nine-month period
that commenced on June 20, 1997, and his detention is not in
violation of Rule 28.1(a).  
     Writ denied.
     Arnold, C.J., Glaze, J., and Corbin, J., concur in part and dissent
in part.

     Tom Glaze, Justice, dissenting in part; concurring in part.  The
per curiam is mistaken when it says Sedric Simpson could be
entitled to a petition for writ of habeas corpus to determine if a
speedy-trial violation occurred.  He has had a proper hearing on
that issue and was denied that relief.  The record clearly reflects
that, on September 5, 1997, Simpson was charged with two counts of
aggravated robbery.  The probable cause affidavit averred that,
during a store robbery, Simpson used a twelve-gauge shotgun to
shoot two women to death.  He admitted to another person that he
had "just blown away two bitches."  
     Based upon a finding of probable cause for detention, a Ark.
R. Crim. P. 8.3 hearing was held where a judge determined that
Simpson should be detained without bail.  Subsequently, Simpson
filed forty motions, seeking various forms of relief, finally
ending with a speedy-trial motion on March 23, 1998 -- about six
months and seventeen days after he was charged, and nine months and
three days from his arrest.  At a hearing on April 7, 1998, the
circuit court ruled, after considering Simpson's numerous motions,
that a minimum of sixty days were excluded and that no speedy-trial
violation occurred.
     In sum, the record clearly reflects the court had jurisdiction
of this case and the order committing Simpson to incarceration is
facially valid.  For this reason alone, Simpson is not entitled to
habeas corpus relief.  See Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524
(1994).  Neither would Simpson be entitled to a petition for writ
of prohibition.  He had a hearing on his speedy-trial motion before
the circuit court, and the proof is abundantly clear that Simpson's
own actions were responsible for causing a delay of his trial.  If
Simpson has any relief in these circumstances, it is by an appeal
from the circuit court's ruling.  Simpson's filing a petition for
writ of habeas corpus here is merely another example of needless
delay caused by his own action.  In fact, the record shows the
circuit court has done all it can to get this case to trial, but
its greatest obstacle in doing so has been the motions filed by
Simpson.
     In conclusion, I repeat the per curiam's statement that the
majority "found no case in which [the court] had considered the
availability of the habeas corpus remedy to a pretrial detainee
held in violation of Rule 28.1(a)."  I strongly suggest the reason
is because habeas corpus is inappropriate for all the reasons
stated above.  The per curiam opinion attempts to widen the effect
of this ancient extraordinary writ to fit speedy-trial issues, and
the writ's purpose is much too narrow, as our case law has
steadfastly held.  Id.  Thus, while I would deny habeas corpus
relief in this case, I do so for reasons vastly different from
those given in the per curiam.  
     Arnold, C.J., and Corbin, J., join this opinion.