Mini reviews, week of 10-2-14

 

By Robert S. Tschiemer

www.tschiemerlegalbriefing.com

 

Klowski v. State, 2014 Ark. 403

          The Arkansas Supreme Court affirmed a conviction of thirty-eight counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child, concluding the State did not have to prove he “knowingly” possessed it on his computer. A three-justice dissent read the statute differently.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/329083/Electronic.aspx

Butler v. Butler, 2014 Ark. App. 507

The Arkansas Court of Appeals affirmed a contempt ruling and rejected the argument that it was a non-final order because of an allowance of time to pay before the incarceration.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/329018/Electronic.aspx

Buckley v. State, 2014 Ark. App. 516

          The Arkansas Court of Appeals reversed a conviction for failure to appear and remanded, where the only evidence supporting the State’s charge was that his attorney testified she told him of the hearing date. Admission of this testimony violated the attorney-client privilege. A concurrence, by Judge Harrison, opined that Arkansas should provide for a “conduit” exception to third-party communications to an attorney who relays it to their client.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/329003/Electronic.aspx


Addition by Gerry Schulze

Sims v. DWS, 2014 Ark. App. 312

         The Arkansas Board of Review found that Sims was discharged from his job at Bismarck Public Schools for misconduct in connection with the work.  Sims appealed, and the Arkansas Court of Appeals reversed.  The Court found that reasonable minds could not conclude that the conduct alleged was sufficient to deny unemployment benefits.  There was no substantial evidence to support the board's finding.

          







 

Mini Reviews, week of 9-11-14

 

By Robert S. Tschiemer

www.tschiemerlegalbriefing.com

Judicial Discipline and Disability Commission v. Maggio, 2014 Ark. 336

          Judge Maggio is formally removed from the bench and may no longer hold judicial office in Arkansas.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/328466/Electronic.aspx

Simpson v. Calvary SPVI, LLC, 2014 Ark. 363

          In answering  certified questions, the Arkansas Supreme Court concluded that an unlicensed entity that buys accounts for collection may not escape collection licensure requirements by hiring an Arkansas attorney to sue the debtor.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/328504/Electronic.aspx

State v. Thomas, 2014 Ark. 362

          The Arkansas Supreme Court reversed a circuit court dismissal order where mental health providers had averred he was incompetent. The statute would permit dismissal only after the defendant regained competency.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/328470/Electronic.aspx

Regional Care of Jacksonville, LLC v. Henry, 2014 Ark. App. 361

          The Arkansas Supreme Court affirmed an order denying a motion to compel arbitration, because there was no mutuality of obligation; billing disputes were not subject to mandatory arbitration.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/328469/Electronic.aspx

Bell v. State, 2014 Ark. App. 458

          The Arkansas Court of Appeals ruled that a circuit court did not abuse its discretion in refusing to instruct the jury that it might consider a “suspended sentence”, in addition to probation.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/328457/Electronic.aspx

Brown v. Brown, 2014 Ark. App. 455

          The Court of Appeals held that a child support obligation was not invalidated by a transferring the case from one county to another.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/328477/Electronic.aspx

Davis v. State, 2014 Ark. App. 452

          In affirming a denial of a continuance, the Court of Appeals noted the requirements, including an affidavit, must be met.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/328458/Electronic.aspx

Fowler v. State, 2014 Ark. App. 460

          In affirming a criminal conviction of driving with .08 BAC, resulting in death, a criminal defendant’s argument that he had .16 taken in the hours after the wreck, not .08, did not convince the appellate court to reverse the conviction.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/328460/Electronic.aspx

Weire v. Styles, 2014 Ark. App. 459

          In reversing a summary judgment order and remanding for trial, the Court of Appeals observed the record showed plaintiff said the bleacher plank was not connected, and defendant averred there was no problem with the racetrack’s spectator bleachers. This demonstrated that there were factual issues.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/328480/Electronic.aspx

We take turns presenting cases.  We all have different ways of preparing.  Since the meeting is a day or two after the cases are handed down, any preparation has to be quick.

Some of us do written summaries of the important cases.  We may choose to put our summaries online.  

There will be typographical and other errors.  These summaries are prepared in a big hurry.  But for those of us who want to put them online, this is how we do it.

Gerry

                  R.  David Lewis

                                               Attorney at Law

                                        1109 Kavanaugh Boulevard

                                        Little Rock, Arkansas 72205.

                             P: (501) 664-0818       F: (501) 664-3884

                         rdavidlewis@yahoo.com        Also licensed in California


SUPREME COURT'


'CRIMINAL LAW RULE 37

ADKINS V STATE Pet filed rule 37 petition and motion for transcript pro se at the same time, circuit court dismissed it as not being verified as required by rule 37c but supreme court reversed the dismissal because the verification on the motion for transcript said the allegations in the rule 37 petition were true and therefore the requirement of verification was met.

CHUNESTUDY V STATE CRIMINAL LAW RULE 37

Convicted of rape of his daughter in Greene County, petition alleges lawyer was negligent for not moving for directed verdict at clost of evidence. Trial court denied motion on grounds such a motion would not have been successful. We affirm. There was evidence he committed rape of his daughter who was under 18 so such a motion would not have been granted.

Petition also alleges lawyer was negligent by not calling a witness to rebut testimony of an expert witness for the state about behavior typical of vitims of child abuse but appellant does not show there was a specific witness who could have been called or show how he was prejudiced so he failed to make a showing counsel was ineffective,.

            He alleges counsel was ineffective for failing ot recall the victim and cross examine her about inconsistencies and her pregnancies but does not disclose what inconsistencies there were or what a doctor would have said about pregnancies.

            He then alleges insufficient investigation and that counsel did not issue any subpoenas but named only one person who could have been called but didn't allege that that witness would have provided any specific information.                

            He alleges court erred in not appointing counsel for him for the hearing but the supreme court has not held a state must provide counsel for a defendant at a hearing attacking his conviction. Besides the petition does not allege sufficient facts to show counself was not functioning as counsel guaranteed by 6th amendment or that there was any specific issue he was not able to raise at the hearing without a lawyer or a copy of transcript of trial.

            This guy had sex with his daughter for years and later married her.

CRIMINAL LAW RULE 37

EWELLS V STATE Petition was dismissed as untimely.It was second petition. Can't raise second rule 37 unless first one was dismissed without prejudice and it wasn't. Also have to file a rule 37 within 60 days of appellate mandate affirming conviction and this one was late.

FROST V STATE Motion for nunc pro tunc order was a request for postconviction relief and was simply a request to modify the sentence and a court is without jurisdiction to modify a sentence once it has been put into execution. If it is a collateral attack on the judgment it is untimely as it was not filed within 60 days of mandate

GARDNER V HOBBS Habeas corpus alleges double jeapardy by conviction of capital murder and the underlying offense but that does not violate double jeapardy. Habeas must demonstrate lack of jurisdicion or that judgment is void on its face and this does neither. He also alleges ineffective assistance of counsel but that is not grounds for habeas relief.

GUNDERMAN V STATE Convicted in 2012, files motion for belate appeal in 2014. Motions for belated appeal must be made within 18 months and he filed the motion within that time but not the record without which the motion could not be filed so motion was untimely and it is dismissed.

ADMINSTRATIVE ORDER 17 Application fee of 125 to take the professional practicum. Wtf?

IN RE ARKANSAS BAR EXAMINATION FEE is raised from 400 to 500.

INGRAM V STATE Writ of certiorai to complete the record with 6 exhibits but because it is clear appeallant could not prevail on appeal we dismiss appeal and motions alleges counsel failed to ask for hearing as to his state of mind when the crime was committed but a review of record shows the medical exam did cover those issues and he was found competent and counself vigourously crossexamined the witness on those issues. He failed to show a different expert would have come to a different conclusion. Conclusory claims are not sufficient.Alleges counsel didn't raise a cultural defense regarding disciplinary measure but doesn't demonstrate facts that would have established a cultural defense.

ANARIAN JACKSON V STATE Petition for error corum nobis Alleges state violated brady by suppressing statements of a witness that defendant was in Dallas at time of crime but defendant was aware of that defense and there is no evidence the evidence was withheld from defense.

MAZUREK V PIAZZA Petition for mandamus to get piazza to rule on motion for modification of order denying postconviction relief. Piazza filed a response wo which was appended a copy of his order disposing of the motion saying he never saw the motion to which we respond a court must have in place a system whereby a judge is notified pleadings filed in a case in his court.As for request to require respondent to correct the original order that is not by mandamus.

PENNINGTON V HOBBS  Habeas corpus, he can't proceed unless he can prove lack of jurisdiciotn or commitment invalid on its face. He alleges that as a minor he can't be sentenced to life under Miller but Miller only prohibits mandatory life sentences for minors and this wasn't mandatory because the jury could have given him 5-50 or life.

ROWAN V, STATE  Rule 37 alleges lawyer'sfailure to secure the witnesses that pet requested left him no alternative but to plead guilty but he did not show prejudice because his claims concerning the witnesses that couself failed to secure were conclusory in nature. It is incumbent on pet to name the witness, provide a summary of the testimony, and establish the testimony would have been admissible into evidence.None of his persons were named, there was no summary of testimoney, and no showing the tesimony would have been admissible.He has not shown his plea was not voluantarily entered.

WHITE V. STATE WRIT OF ERROR CORUM NOBIS says he is innocent, the victime has recanted and appellant has a witness who has written a letter that says the victim told him she had lied about his conduct  and victim's mother had manipulated him into silence but a claim of recanted testimony is not cognizable in error corum nobis. [why not-it was fact not known at time of trial]