{ "id": 51316, "name": "James M. BOHANAN II v. STATE of Arkansas", "name_abbreviation": "Bohanan v. State", "decision_date": "1999-02-11", "docket_number": "CR 98-551", "first_page": "367", "last_page": "374", "citations": [ { "type": "official", "cite": "336 Ark. 367" }, { "type": "parallel", "cite": "985 S.W.2d 708" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "315 Ark. 479", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910550 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/315/0479-01" ] }, { "cite": "332 Ark. 306", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377548 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0306-01" ] }, { "cite": "334 Ark. 573", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655517 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0573-01" ] }, { "cite": "323 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445680 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0361-01" ] }, { "cite": "294 Ark. 376", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895739 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ark/294/0376-01" ] }, { "cite": "330 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298614 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0381-01" ] }, { "cite": "300 Ark. 135", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886822 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "137" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ark/300/0135-01" ] }, { "cite": "330 Ark. 757", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298653 ], "weight": 3, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0757-01" ] }, { "cite": "332 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377597 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0241-01" ] }, { "cite": "766 S.W.2d 931", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1889856, 1889948 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0301-01", "/ark/298/0317-01" ] }, { "cite": "298 Ark. 317", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889948 ], "year": 1989, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/ark/298/0317-01" ] }, { "cite": "327 Ark. 507", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922682 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0507-01" ] }, { "cite": "254 Ark. 687", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1624134 ], "weight": 2, "year": 1973, "opinion_index": 1, "case_paths": [ "/ark/254/0687-01" ] }, { "cite": "611 S.W.2d 500", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1756196, 1756070 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/271/0860-01", "/ark/271/0859-01" ] }, { "cite": "271 Ark. 859", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756070 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/271/0859-01" ] }, { "cite": "294 Ark. 376", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895739 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/294/0376-01" ] }, { "cite": "909 F. Supp. 626", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7819636 ], "year": 1995, "pin_cites": [ { "parenthetical": "parolee in Arkansas remained under State supervision and, thus, in custody" } ], "opinion_index": 2, "case_paths": [ "/f-supp/909/0626-01" ] }, { "cite": "20 F.3d 849", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10511913 ], "year": 1994, "pin_cites": [ { "parenthetical": "a parolee is still in custody" } ], "opinion_index": 2, "case_paths": [ "/f3d/20/0849-01" ] }, { "cite": "371 U.S. 236", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 451237 ], "year": 1963, "pin_cites": [ { "parenthetical": "custody includes a person on parole" } ], "opinion_index": 2, "case_paths": [ "/us/371/0236-01" ] }, { "cite": "391 U.S. 234", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767371 ], "year": 1968, "pin_cites": [ { "parenthetical": "release of the prisoner does not deprive the court of jurisdiction under federal statute" } ], "opinion_index": 2, "case_paths": [ "/us/391/0234-01" ] }, { "cite": "28 U.S.C. \u00a7 2254", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 2 } ], "analysis": { "cardinality": 710, "char_count": 13138, "ocr_confidence": 0.764, "pagerank": { "raw": 3.1003197166055667e-07, "percentile": 0.8592921826716539 }, "sha256": "5100bfe18728c301d5523b62e91add132c53327d3e4ed79c30797c1941e60d31", "simhash": "1:d30901705037e1be", "word_count": 2184 }, "last_updated": "2023-07-14T19:29:35.905877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze and Brown, JJ., concur." ], "parties": [ "James M. BOHANAN II v. STATE of Arkansas" ], "opinions": [ { "text": "Lavenski R. Smith, Justice.\nAppellant, James Monroe Bohanan, II, appeals the decision of the Saline County Circuit Court denying his petition for relief under Ark. R. Crim. P. 37. Appellant was tried and convicted for armed robbery on October 29, 1993, and sentenced to fifteen years. He appealed his conviction, but the Court of Appeals affirmed the trial court. Bohanan v. State, No. CACR 94-227, slip. Op. (Ark. App. Jan. 18, 1995). Appellant then filed, on March 6, 1995, a pro se Rule 37 petition alleging entitlement to postconviction relief. Appellant principally contended that he had been denied effective assistance of counsel. He alleged that his attorney, who he had retained, failed to subpoena any of seven exculpatory witnesses. He also alleged his attorney did not seek exclusion of certain evidence appellant believed was illegally obtained by police. The trial court denied the petition without a hearing by order entered June 27, 1995. Appellant sought review of that denial before this court on March 3, 1997. We reversed the trial court and remanded the case because the trial court\u2019s denial did not make written findings as required by Rule 37.3(a). Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997). Upon remand, the trial court again denied appellant\u2019s petition and made written findings in its denial order entered January 27, 1998. This appeal arises from that order.\nIn response, the State filed a reply brief on September 10, 1998. The State then sought and received from this Court permission to file an additional belated reply brief. In this second reply, which was a motion to dismiss, the State raises the issues of mootness and lack of jurisdiction relative to Bohanan\u2019s appeal, contending that he was no longer \u201cin custody under sentence of a circuit court\u201d and thus was not entitled to relief under Rule 37.1. The State makes these arguments because the appellant was released from prison on parole on January 13, 1998, approximately two weeks prior to the entry of the trial court\u2019s order on January 28, 1998. Appellant contends in response that he is indeed \u201cin custody\u201d because he remains in the legal custody of the Arkansas Department of Correction.\nThe threshold issue for this appeal then is whether the legal custody maintained by the Arkansas Department of Correction of a paroled inmate is synonymous with \u201cin custody\u201d for purposes of Rule 37.1. Appellant contends legal custody is sufficient whereas the State contends physical incarceration is necessary for the \u201cin custody\u201d requirement to be met. The State is correct. We hold that a petitioner seeking Rule 37 postconviction relief must be incarcerated in order for the rule\u2019s remedies to be available to the petitioner.\nPostconviction proceedings under Rule 37 are intended to avoid persons being unjustly imprisoned. This rule enables the courts to correct a manifest injustice. As we have stated \u201cRule 37 is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed as to be void.\u201d Williams v. State, 298 Ark. 317, 320, 766 S.W.2d 931 (1989). Rule 37.1 states:\nA petitioner in custody under sentence of a circuit court claiming a right to be released, or to have a new trial, or to have the original sentence modified on the ground:\n(a) that the sentence was imposed in violation of the Constitution and laws of the United States or this state; or\n(b) that the court imposing the sentence was without jurisdiction to do so; or\n(c) that the sentence was in excess of the maximum sentence authorized by law; or\n(d) that the sentence is otherwise subject to collateral attack; may file a verified petition in the court which imposed the sentence, praying that the sentence be vacated or corrected.\n(e) The petition will state in concise, nonrepetitive, factually specific language, the grounds upon which it is based and shall not exceed ten pages in length. The petition, whether handwritten or typewritten, will be clearly legible, will not exceed thirty lines per page and fifteen words per fine, with lefthand and right-hand margins of at least one and one-half inches and upper and lower margins of at least two inches. Petitions which are not in compliance with this rule will not be filed without leave of the court.\n(Emphasis added.)\nRule 37.1 begins \u201cA petitioner in custody under sentence of a circuit court. ...\u201d It is apparent that this rule\u2019s provisions are applicable only to such persons who are \u201cin custody.\u201d Appellant contends that the proper construction of the term \u201cin custody\u201d would include not only physical custody but the legal custody of the Arkansas Department of Correction. Hence, a petitioner could be a parolee such as appellant and still be \u201cin custody\u201d for purposes of Rule 37.1. We disagree.\nWhile we have never previously held precisely that a petitioner must be incarcerated to be entitled to Rule 37 relief, such a holding is clearly consistent with our cases addressing Rule 37. The most recent case touching this subject is State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998). In Herred, the appellant was out on bond at the time he filed his Rule 37 petition, but was serving his sentence when the trial court ruled on the motion. The state contended the trial court lacked jurisdiction because the petitioner was not in custody when the petition was filed. We disagreed and concluded the court did have jurisdiction under Rule 37 because the petitioner was in custody when the court considered the merits of his motion. We thus construed \u201cin custody\u201d in that case to mean incarcerated.\nThree other recent cases indicate that in circumstances where the petitioner was not actually physically incarcerated no Rule 37 relief was available. In Kemp v. State, 330 Ark. 757, 956 S.W.2d 860 (1997), we held that petitioner was not entitled to relief under Rule 37 where he had only been fined for felony possession of a firearm receiving no jail time and therefore was not \u201cin custody.\u201d Similarly, in a case where petitioner received a fine for illegal turkey hunting, we affirmed the trial court\u2019s denial of relief. Edwards v. City of Conway, 300 Ark. 135, 137, 777 S.W.2d 583 (1989). In Edwards we stated \u201cPursuant to Ark. R. Crim. P. 37, postconviction relief is available where a prisoner is in custody under sentence of a circuit court. . . .\u201d Id. at 137.\nIn the second recent case, Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997), the court, in dicta while discussing withdrawal of a guilty plea, cited Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988), where we stated, \u201cRule 37 could have applied but did not because that remedy is confined to use by a prisoner who is in custody under sentence of the circuit court, and the parties at issue were out on bond.\u201d Johninson. at 386. Later in Johninson, while contrasting Rule 37.1 and 37.2, the Court stated, \u201cWhile relief pursuant to Rule 37.1 is limited to prisoners incarcerated under sentence, that is obviously not contemplated by Rule 37.2 . . . .\u201d Id. at 387.\nIn the third recent case, Mason v. State, 323 Ark. 361, 914 S.W.2d 751 (1996), involving juveniles on probation, we denied a motion to withdraw a guilty plea, and in a footnote referring to Rule 37 petitioners stated, \u201cArkansas Rule of Criminal Procedure 37 ... is available only when they are in custody.\u201d These statements by the Court in the above-cited cases indicate we have consistently viewed incarceration as a prerequisite to Rule 37 relief.\nThe Commentary to Rule 37 also supports a construction of the rule that would make incarceration a requirement to the granting of relief. It states, \u201cImplicit in the first clause of Rule 1, here Rule 37.1, is the notion that eligibility for relief extends only to incarcerated persons \u25a0 \u2014 \u25a0 not, for example, to persons who have completed terms of imprisonment or who have received suspended sentences.\nDespite these precedents, appellant argues that Rule 37 still applies to him and cites language from his conditional release that states: \u201cYou shall remain in legal custody of the Department of Community Punishment and subject to the orders of the Post Prison Transfer Board until discharged from your sentence, or until you are returned to the Arkansas Department of Correction by order of the Post Prison Transfer Board.\u201d Appellant also relies on Kemp, supra and attempts to distinguish it by pointing out that Kemp involved no incarceration, whereas he had not only been incarcerated but remained in \u201clegal custody.\u201d Appellant\u2019s arguments, however, are unavailing. The key and indeed crucial similarity between this case and Kemp is that in both cases neither party seeking relief was incarcerated when their case was heard by this Court. The boilerplate language contained in appellant\u2019s conditional release does not keep him \u201cin custody\u201d for purposes of Rule 37, which we hold to mean incarceration.\nAppellant also points this Court to the federal jurisprudence on habeas corpus, since our Rule 37 is patterned after it, for the effect of petitioner\u2019s parole on his appeal. We acknowledge the parallel, but we decline appellant\u2019s invitation to adopt the federal habeas standards for mootness. In Arkansas, an issue becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Quinn v. Webb Wheel Products, 334 Ark. 573, 976 S.W.2d 386 (1998); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998); Pennington v. Pennington, 315 Ark. 479, 868 S.W.2d 460 (1994). The principal purpose of Rule 37 is to avoid unjust incarceration. In circumstances such as this case, where the petitioner has been released prior to granting relief, granting the relief has no practical effect. We hold that appellant\u2019s Rule 37 petition is rendered moot by his release from custody. It is therefore unnecessary to address the merits of his ineffective-assistance claims.\nAffirmed.\nGlaze and Brown, JJ., concur.", "type": "majority", "author": "Lavenski R. Smith, Justice." }, { "text": "Tom Glaze, Justice,\nconcurring. I agree with the majority, but would emphasize the clear introductory language of Ark. R. Crim. P. 37.1, which establishes the parameter of the Rule \u2014 a petitioner in custody under sentence of a circuit court claiming a right to he released. . . . This court clearly has pointed out that the \u201cScope of the Remedy\u201d for proceedings under Rule 37 is confined to a prisoner, in custody under sentence of a circuit court. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988); Burkhart v. State, 271 Ark. 859, 611 S.W.2d 500 (1981); Hartsell v. State, 254 Ark. 687, 495 S.W.2d 523 (1973) (court interpreting Criminal Procedure Rule 1, predecessor to Rule 37, to provide postconviction relief only for a prisoner in custody of sentence and declining to enlarge scope of remedy to include a prisoner under sentence of a federal court; and further holding defendant was not precluded from seeking relief in appropriate federal forum). In Malone, this court stated defendants were not entitled to Rule 37 relief because defendants were out of custody on bonds when they filed their Rule 37 motion.", "type": "concurrence", "author": "Tom Glaze, Justice," }, { "text": "Robert L. Brown, Justice.\nL. Brown, Justice. I cannot disagree that our recent gree that our recent cases that touch and concern Ark. R. Crim. P. 37.1 indicate that physical custody is a prerequisite to petitioning for relief. This is so even though Rule 37.1 merely uses the term \u201ccustody\u201d and does not distinguish between legal custody or physical custody.\nI am mindful, however, that in this case where parole is the issue, the order of conditional release makes reference to the fact that the respondent, Bohanan, is still in legal custody. This would be sufficient custody for postconviction relief in the federal system. The federal courts have universally interpreted the term \u201ccustody\u201d as used in 28 U.S.C. \u00a7 2254 broadly and as synonymous with restraint of liberty as opposed to actual physical custody. See, e.g., Carafas v. LaVallee, 391 U.S. 234 (1968) (release of the prisoner does not deprive the court of jurisdiction under federal statute); Jones v. Cunningham, 371 U.S. 236 (1963) (custody includes a person on parole); Jones v.Jerrison, 20 F.3d 849 (8th Cir. 1994) (a parolee is still in custody); Richmond v. Duke, 909 F. Supp. 626 (E.D. Ark. 1995) (parolee in Arkansas remained under State supervision and, thus, in custody).\nWhat concerns me is the hypothetical case of a petitioner who is on parole when the mandate affirming his conviction is issued. In light of today\u2019s opinion, he cannot file a petition for Rule 37 relief. And if his parole is revoked more than sixty days after the mandate is issued, and he is incarcerated, his time for filing a petition will have elapsed. See Ark. R. Crim. P. 37.2(c). Thus, he is deprived of a postconviction remedy. This appears to be fundamentally unfair.\nThis problem, of course, does not affect Bohanan. But it suggests that it may well be time for this court to revisit Rule 37, bearing this problem in mind.", "type": "concurrence", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "Mark Burnette, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Vada Berger, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "James M. BOHANAN II v. STATE of Arkansas\nCR 98-551\n985 S.W.2d 708\nSupreme Court of Arkansas\nOpinion delivered February 11, 1999\nMark Burnette, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Vada Berger, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0367-01", "first_page_order": 393, "last_page_order": 400 }