Ward v. State

                                   Cite as 

                SUPREME COURT OF ARKANSAS
                                       No.   CR-16-858

BRIAN F. WARD                                     Opinion Delivered   June 8, 2017

                               APPELLANT          APPEAL FROM THE PULASKI
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. 60CR-09-4467]
STATE OF ARKANSAS
                                                  HONORABLE HERBERT T.
                                 APPELLEE         WRIGHT, JUDGE

                                                  REVERSED AND REMANDED.



                            JOSEPHINE LINKER HART, Justice

       By per curiam opinion handed down on January 14, 2016, this court denied Brian F.

Ward’s pro se petition for a writ of error coram nobis. However, in the same opinion, this

court held that Ward’s sentence, fifteen years in the Arkansas Department of Correction plus

fifteen years suspended imposition of sentence, was illegal. We remanded this case to the

circuit court for resentencing. On remand, the circuit court imposed the same sentence and

Ward appealed. He argues that the circuit court erred in refusing to follow this court’s order

and mandate in Ward v. State, 

, 

, (Ward I), to sentence him on his

second-degree sexual-assault conviction. We reverse and remand.

       Upon remand, a sentencing hearing was held. Ward asserted that when the supreme

court handed down its decision, pursuant to Arkansas Supreme Court Rule 2.3, the State had

eighteen days in which to ask for a rehearing to correct any error of law or fact, and the

eighteen days had elapsed without a petition for rehearing being filed. Consequently, he
                                   Cite as 

argued further, the mandate rule prohibited the circuit court from deviating from the appellate

court’s mandate. Accordingly, the supreme court’s decision that Ward’s sentence cannot

exceed twenty years had to be followed because of the mandate rule.

       The State asserted that Ward’s status as a habitual offender was acknowledged by the

supreme court in its decision. It argued that, consequently, it would not be “inconsistent”

for the circuit court to sentence Ward up to the maximum allowed by statute: thirty years.

       The circuit court agreed with the State. It asserted that “the supreme court, with all

their power, cannot change the statute.” It then “remiposed” the sentence that the supreme

court had held was illegal. The circuit court stated further that

       I understand there is some question about whether or not I am or am not following
       the supreme court’s mandate. And Again, they created this problem. They’re gonna
       have to explain what it is . . . And I may be disregarding the mandate. They’re going
       to have to tell me that. My understanding of the mandate is I’m required to
       resentence him within the statutory range, and the statutory range for a Class B felony
       with a small habitual is five to 30 years, not five to 20 years.

       On appeal, Ward argues that the circuit court erred in failing to follow the mandate.

He contends that, when this court remands a case with specific instructions in its opinion,

the circuit court has no jurisdiction to deviate from our mandate; the circuit court only has

authority to execute the mandate. Accordingly, the circuit court may not examine our

decision for any purpose. Citing Furnas v. Kimbrell, 

, 

, Ward argues further that when we review whether a circuit court has followed the

mandate on remand, we only determine whether the circuit court followed the instructions

in our opinion and the mandate and executed our instructions. Furnas, 

,

. We agree.

                                              2
                                    Cite as 

       It is obvious from the record that the circuit court looked behind our opinion in Ward

I. This exceeded the circuit court’s jurisdiction. On remand, the circuit court was vested

with jurisdiction only to the extent conferred by our opinion and mandate. Dolphin v. Wilson,

, 

 (1998). Under the limited jurisdiction afforded the circuit

court on remand, the correctness of our prior opinion in Ward is not the issue. Because our

mandate confers only the limited jurisdiction described previously, the circuit court did not

have the power to correct any perceived error.1 We therefore reverse and remand this case

for the entry of a sentencing order that conforms with Ward I.

       Reversed and remanded.

       KEMP, C.J., and WOOD and WOMACK, JJ., dissent.

       RHONDA K. WOOD, Justice, dissenting. The sole issue on appeal is whether the

circuit court exceeded its authority when it resentenced Ward. I would hold the court did not

exceed its authority; therefore, I dissent. The mandate, in its entirety, reads as follows:

       This post conviction criminal appeal was submitted to the Arkansas Supreme Court
       on the record of the Pulaski County Circuit Court and briefs of the respective parties.
       After due consideration, it is the decision of the court that the judgment of the circuit
       court is affirmed in part and remanded for resentencing in part for the reasons set out
       in the attached opinion.
       It is clear to me that the mandate remanded the matter “for resentencing,” which is

precisely what the circuit court did in this matter. The mandate references the opinion, but


       1
        In our review in Ward I, we had before us the circuit court’s order stating, [T]he
Defendant had a prior conviction for attempted capital murder in case 60CR-92-3202 and
the judgment and commitment order which likewise suggested that Ward had only a “prior”
conviction for attempted capital murder. To be a habitual offender under Arkansas Code
Annotated section 5-4-501, a defendant had to commit more than one felony.

                                               3
                                   Cite as 

only for explanation of “the reasons” it was remanding. The mandate did not state the circuit

court was to resentence within a certain parameter. Nor did it state the circuit court was to

resentence “consistent with our opinion,” language contained in the Dolphin case cited by the

majority. Dolphin v. Wilson, 

, 

 (1998). Ward I’s mandate did not

contain similar language.

       Even if we take into account that the circuit court should have looked to the spirit of

the opinion as some of our past decisions suggest, that would not change the result. See Casey

v. Planned Parenthood, 

, 857 (3d Cir. 1994). The opinion held that “sentencing is

a matter of statute” and stated “we remand the matter to the trial court for resentencing on

the second-degree sexual assault conviction.” Ward v. State, 

, 

 (per curiam). The express language of the opinion did not set a parameter. The “spirit”

of the opinion rested on the belief that Ward’s sentence was illegal, a belief that even Ward

does not maintain. He concedes as much in his brief:

       Appellant Ward acknowledges that in 2010, when he pleaded guilty to second degree
       sexual assault, this offense was a Class B felony. (

, 8; R. 26, 29) 

(b)(i) (Repl. 2006). Appellant Ward committed second degree sexual assault
       in 2009. (

; R.3) In 2009, the maximum sentence of imprisonment for a Class
       B felon, enhanced as a habitual offender with more than one, but fewer than four,
       prior felony convictions, was thirty years. 

(a)(C)(2) (Repl.
       2006).


       In the past, when a circuit court upon remand found that the “spirit” of the majority

opinion had a faulty premise—that hairs had not been adequately retested—the circuit court

explained that the testing had occurred and did not order subsequent retesting. See Johnson v.


                                              4
                                   Cite as 

State, 

, 

 (2006). We affirmed this decision on a subsequent appeal

on the issue of exceeding the authority of the mandate. 

, 

.

Likewise, the Ward I opinion contained a faulty premise—when determining the maximum

allowable sentence, the opinion did not provide for the increased range based on Ward’s plea

as a habitual offender with more than one prior felony. On remand, the circuit court

explained that Ward did so plead and resentenced him to a term allowed by law. The sole

directive in the mandate and the opinion was for resentencing, without a mention of specific

range. The spirit was to ensure Ward’s sentence was legal. The circuit court’s action

complied with both the letter and spirit of the mandate. I would affirm.

       KEMP, C.J., and WOMACK, J., join in this dissent.

       William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,
for appellant.

       Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.




                                              5