Rodney Maurice Raglin v. State of Arkansas

Rodney RAGLIN v. STATE of Arkansas

CR 97-402                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 2, 1997


1.   Appeal & error -- postconviction relief -- motion for appointment of
     counsel granted -- rationale. -- The supreme court granted
     appellant's motion for appointment of counsel for
     postconviction appeal but did so only because not doing so
     would result in the vacation of a valid judgment that was
     upheld on appeal and the premature release of a defendant
     found guilty of a grave offense; at some point society is
     entitled to a expectation of finality in a criminal judgment.

2.   Appeal & error -- postconviction relief -- supreme court appoints counsel
     in postconviction appeals only where appellant demonstrates substantial
     merit to appeal -- court compelled to treat appellant differently to avoid
     release. -- The supreme court, noting a clear conflict between
     the federal habeas corpus action and state case law in that
     the case law did not allow for an untimely A.R.Cr.P. Rule 36.4
     petition unless the petitioner was not advised at the time of
     sentencing of his right to proceed under Rule 36.4
     (subsequently superseded), declared that appellant was
     informed of his right to proceed under the rule and should not
     be heard to complain because he failed to exercise that right;
     moreover, the supreme court appoints counsel in postconviction
     appeals only where the appellant demonstrates in the motion
     for counsel that there is substantial merit to the appeal, and
     appellant's motion stated only that "the ends of justice would
     best be served" if counsel were appointed; the court, however,
     was compelled to treat appellant differently because it was
     the federal courts' view that appellant's Rule 36.4 proceeding
     was an extension of the trial in the manner of a motion for
     new trial, making the petitioner entitled under the Sixth
     Amendment to appointment of counsel; when promulgated, Rule
     36.4 (subsequently superseded) was not intended as an
     extension of the trial but rather as a postconviction remedy;
     the supreme court was bound to act in accordance with the
     magistrate's order or permit the federal court to release
     appellant, who was convicted of an abhorrent crime.


     Motion for Appointment of Counsel; granted.
     Appellant, pro se.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Per Curiam. 
     In 1990, Rodney Raglin was found guilty by a jury of murder in
the first degree.  We affirmed.  Raglin v. State, CR 90-214
(February 25, 1991).  
     At the time Mr. Raglin was convicted, our postconviction
remedy was embodied in Criminal Procedure Rule 36.4.  Rule 36.4
required the trial court to advise the defendant at sentencing that
he was entitled to file within thirty days a motion for
postconviction relief if he was dissatisfied with his attorney's
representation.  Raglin was so advised but did not file a motion.
     At some point Raglin filed in the United States District Court
two petitions seeking writs of habeas corpus which were
consolidated, and on March 7, 1996, the magistrate issued an order
declaring that the writ would issue in one-hundred twenty days if
Raglin were not afforded a Rule 36.4 hearing in circuit court.  The
Order further provided that Raglin was to have the benefit of
counsel at the hearing and on appeal to this court if relief were
denied and an appeal taken.  
     Although no motion for postconviction relief under Rule 36.4
appears in the record, suggesting that the order of the federal
court was allowed to substitute for a motion, a hearing was held in
the trial court at which Raglin was represented by counsel.  Relief
was denied, and the appeal has been lodged here.  Because the
attorney at the hearing was relieved before the notice of appeal
was filed, appellant Raglin now seeks appointment of counsel.  The
State urges this court to appoint an attorney so that the writ of
habeas corpus will not be issued.
     We grant the motion but do so only because not doing so would
result in the vacation of a valid judgment which was upheld on
appeal and the premature release of a defendant found guilty of a
grave offense.  At some point society is entitled to a expectation
of finality in a criminal judgment.  
     There is a clear conflict between the federal action and our
case law in that our case law does not allow for an untimely Rule
36.4 petition, unless the petitioner was not advised at the time of
sentencing of his right to proceed under Rule 36.4.  See Cherry v.
State, 323 Ark. 733, 918 S.W.2d 125 (1996).  Appellant was informed
of his right to proceed under the rule and should not now be heard
to complain because he failed to exercise that right.  Moreover,
this court appoints counsel in postconviction appeals only where
the appellant demonstrates in the motion for counsel that there is
substantial merit to the appeal.  See Miner v. Furman, 318 Ark.
883, 887 S.W.2d 310 (1994).  Appellant's motion states only that
"the ends of justice would best be served" if counsel were
appointed.  Again, we are compelled to treat appellant differently
because it is the federal courts' view that the Rule 36.4
proceeding was an extension of the trial in the manner of a motion
for new trial, making the petitioner entitled under the Sixth
Amendment to appointment of counsel.  When promulgated in 1989,
Rule 36.4 was not intended as an extension of the trial, but rather
as a postconviction remedy.  In the Matter of the Abolishment of
Rule 37 and the Revision of Rule 36 of the Arkansas Rules of
Criminal Procedure, 299 Ark. 573 (1989).  We are bound to act in
accordance with the magistrate's order or permit the federal court
to release the appellant who was convicted of an abhorrent crime.
     Kelly Pace is appointed counsel for appellant.  Our clerk is
directed to set the briefing schedule for the appeal.
     Motion granted.