Branning v. State
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Cite as 2010 Ark. 401
SUPREME COURT OF ARKANSAS
No.
CR09-15
Opinion Delivered
CHRISTOPHER BRANNING,
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
October 28, 2010
A P P E A L FR O M T H E B O O N E
COUNTY CIRCUIT COURT,
NO. CR2004-244-4,
HON. GORDON WEBB, JUDGE,
R E V E R SED AN D R EM A N D E D ;
APPELLANT’S MOTION TO TAKE
JUDICIAL NOTICE MOOT.
PAUL E. DANIELSON, Associate Justice
Appellant Christopher Branning appeals from the circuit court’s order dismissing his
petition for postconviction relief. He alleges the following on appeal: (1) that the circuit court
erred when it dismissed his petition on the grounds that he was on parole at the time of the
hearing although he was incarcerated when the order was entered; (2) that the circuit court
erred when it failed to provide him Rule 37 relief or hold a hearing on the hearing’s
originally-scheduled date of May 16, 2008, regardless of the fact that he was unable to attend
that hearing; (3) that the circuit court erred when it refused to allow his father to stand in his
place as his attorney-in-fact at the May 16, 2008 hearing; (4) that the circuit court erred by
continuing his originally-scheduled hearing from May 16, 2008 to July 25, 2008; and (5) that
Cite as 2010 Ark. 401
this court’s decision in Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999), which was
relied upon by the circuit court, is unconstitutional and an incorrect interpretation of
legislative intent. We agree with Branning that the circuit court erred when it dismissed his
petition on the grounds that he was on parole at the time of hearing although he was
incarcerated when the order was entered. Therefore, for that reason, we reverse and remand
the circuit court’s order of dismissal.
Branning was convicted of second-degree stalking, two counts of first-degree terroristic
threatening, and misdemeanor violation of a protection order, for which he was sentenced to
concurrent terms of 120 months, 72 months, 72 months, and 259 days, respectively, in the
Arkansas Department of Correction. This court affirmed the conviction and sentence. See
Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007).
On January 12, 2007, Branning was paroled; however, he filed a timely petition for
postconviction relief on January 18, 2007. The circuit court held a hearing on Branning’s
petition on May 16, 2008. Branning was not able to be present at the time of the hearing as
he had been arrested on two unrelated misdemeanor charges and was temporarily being held
at the Arkansas Department of Community Correction for allegedly violating conditions of
his parole. Therefore, the circuit court rescheduled the hearing so that Branning could be
present.
The circuit court held a hearing on the petition on July 25, 2008. At that time,
Branning remained on parole and was no longer being held at the Arkansas Department of
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Community Correction. At the hearing, the circuit court announced that the petition would
be dismissed as Branning was not in custody at the time he filed the petition, nor was he in
custody at the time of the hearing on the petition. Therefore, the circuit court found, he was
not eligible for the postconviction relief he sought.
The circuit court’s written order denying the petition for postconviction relief was not
filed until January 5, 2009. Before that order was entered, Branning’s parole was revoked.
Additionally, he had filed a timely notice of appeal and an amended notice of appeal. We turn
now to the merits of Branning’s argument on appeal.
Branning argues that the circuit court erred in dismissing his petition, as he was in
custody at the time the written order was entered on January 5, 2009. The State avers that the
circuit court was correct in dismissing the petition because Branning had not been in custody
when his petition was filed, nor when the hearing on the petition was held.
Postconviction proceedings under Rule 37 are intended to avoid persons being
unjustly imprisoned. See Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999). “Rule 37
is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed
as to be void.” Id. at 369, 985 S.W.2d at 709 (quoting Williams v. State, 298 Ark. 317, 320,
766 S.W.2d 931, 933 (1989)). Rule 37.1 begins, “A petitioner in custody under sentence of
a circuit court . . . .” See Ark. R. Crim. P. 37.1(a)(2010).
This court has previously construed “in custody” to mean physically incarcerated. See
Bohanan, supra. Our precedent is clear that a person on parole is not eligible to proceed under
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Rule 37. See id. See also State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998). The question
presented in the instant case is when must a petitioner be in custody to be eligible for
postconviction relief.
In Bohanan, this court held that the appellant’s Rule 37 petition was moot because he
was released from prison on parole approximately two weeks prior to the entry of the circuit
court’s order denying the petition and, therefore, granting the relief had no practical effect.
Here, while Branning was not in custody when he filed his petition, nor at the hearing on the
petition, he was in custody before the circuit court’s order was filed and, therefore, relief
would have had a practical effect.
In Herred, the appellant had filed his petition three days before he began serving his
sentence. While the State argued that the circuit court lacked jurisdiction to grant Rule 37
relief because Herred was not in custody when he filed his petition, we held that, because he
was in custody when the circuit court ultimately disposed of his motion, the court had
jurisdiction to consider it. See Herred, supra. Again, here, Branning was not in custody when
he filed his petition or when the court held the hearing on July 25, 2008. However, he was
in custody at the time the circuit court’s final order was entered on January 5, 2009.
The State argues that because Branning was not in custody at the July hearing, he was
not in custody at the time that the court considered the merits of his petition. However, the
language this court used in Herred was that the circuit court there had jurisdiction of the
appellant’s petition because that appellant was in custody when the court “ultimately disposed
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of his motion.” 332 Ark. at 251, 964 S.W.2d at 397. While the circuit court in the instant
case verbally announced its findings at the July hearing, a written order was not entered until
January 5, 2009. This court has specifically held that an oral order is not effective until entered
of record. See Hewitt v. State, 362 Ark. 369, 208 S.W.3d 185 (2005). Therefore, the circuit
court did not ultimately dispose of Branning’s petition until July 5, 2009, at which time
Branning was in custody.
For this reason, we hold that the circuit court erred in denying Branning’s petition for
postconviction relief. Because we conclude that Branning’s first point for reversal has merit,
we need not address his remaining allegations of error.
Reversed and remanded; Appellant’s motion to take judicial notice moot.
C ORBIN and W ILLS, JJ., dissent.
D ONALD L. C ORBIN, Justice, dissenting. I respectfully dissent. While I understand why
the majority reaches its conclusion, I disagree with this court’s continued reliance on State v.
Herred, 332 Ark. 241, 964 S.W.2d 391 (1998), because I believe that case to be an anomaly
in our postconviction law that should be overruled.1
Arkansas Rule of Criminal Procedure 37.1 provides postconviction relief for
constitutional violations and other collateral attacks upon a conviction, including ineffective
1
While I joined the majority in Herred, upon further consideration, I now conclude that
this was in error. I now agree with Justice Glaze in his concurrence that the matter should
have been dismissed for lack of jurisdiction.
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assistance of counsel. The rule is accessible to a “petitioner in custody under sentence of a
circuit court.” Ark. R. Crim. P. 37.1(a) (2010). This court has held that “in custody” for
purposes of Rule 37.1 is limited to physical incarceration. Bohanan v. State, 336 Ark. 367, 985
S.W.2d 708 (1999). There, this court held that a “petitioner seeking Rule 37 postconviction
relief must be incarcerated in order for the rule’s remedies to be available to the petitioner.”
Id. at 369, 985 S.W.2d at 709. Further, we have noted that being in custody is a “prerequisite
for Rule 37 relief.” Coplen v. State, 298 Ark. 272, 273, 766 S.W.2d 612, 612 (1989). In
Burkhart v. State, 271 Ark. 859, 611 S.W.2d 500 (1981), this court held that the appellant was
not entitled to Rule 37 relief where he was not in custody at the time he filed his petition.
Despite the plain wording of Rule 37.1 and this court’s case law on the “in custody”
issue, this court in Herred, 332 Ark. 241, 964 S.W.2d 391, rejected an argument by the State
that the circuit court lacked jurisdiction of a Rule 37 petition where the appellant was not in
custody at the time he filed his petition. There, this court recognized that our case law
required a person to be in custody but concluded, nonetheless, that because the appellant was
in custody when the trial court ultimately disposed of his motion, the circuit court had
jurisdiction.
The problem with our decision in Herred is that it ignores the fact that if there is no
jurisdiction at the time of the filing of the petition, because the petitioner is not in custody,
then the circuit court cannot somehow later acquire jurisdiction. Herred in no way explains
how a jurisdictional defect can be cured after the filing of the petition, it just concludes that
the court ultimately had jurisdiction, which I think is in error.
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Here, Appellant was not in custody at the time he filed his motion, nor was he in
custody at the time the circuit court held a hearing on the petition and ruled from the bench
that he was dismissing the petition because Appellant was not in custody. It was only some
five months later when the circuit court entered its written order that Appellant was back in
custody. Thus, Appellant was not in custody at the time of filing or at the time the court
considered the petition, and the circuit court correctly dismissed Appellant’s petition for lack
of jurisdiction.
W ILLS, J., joins in this dissent.
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