dissenting.
1⅞|1 respectfully dissent. This court has long recognized its inherent authority to recall its mandate, see Boynton v. Asha-branner, 75 Ark. 415, 422, 88 S.W. 1011, 1011 (1905), and that authority is not limited or controlled by the supposed three-factor test noted by the majority. The three-factor test for recalling a mandate set out in Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006), and noted in the majority opinion and in the concurring opinion, misstates the law. This court in Lee derived the three factors from Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003); however, in Robbins, this court made it clear that each petition to recall a mandate is examined on its own merits — that such cases are “one of a kind, not to be repeated.” Robbins, 353 Ark. at 564, 114 S.W.3d at 223. A general test cannot be created from a case that clearly states it is one of a kind. Each petition to recall a mandate must be separately examined to determine whether justice requires that the mandate be recalled under the unique facts of that particular case.
Further, neither Robbins nor Lee is controlling in this case. In Robbins, this court recalled the mandate because of fundamental error in the jury’s completion of the sentencing forms. This court in Robbins cited Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). In Willett, this court reversed a death sentence and remanded for resentencing for the same error. The facts in Robbins and Willett are not at all similar to the present case. In Lee, Rule 37 counsel was intoxicated while representing Lee in the Rule 37 hearing. In recalling the mandate, this court in Lee concluded that under “these particular and unusual circumstances,” Lee’s representation did not meet the qualifications of competency required of counsel ^appointed under Rule 37.5. Lee, 367 Ark. at 93, 238 S.W.3d at 57. It is clear that under Lee, where an attorney is intoxicated and unable to represent a client, the client is essentially left without competent counsel. The facts in the present case are not analogous to the facts in Lee.
While Wooten argues that he was effectively left without counsel, that argument fails because it is based on his counsel’s alleged failure to make the proper choices as to what to put on as evidence in the guilt phase and as mitigation in the penalty phase of trial. The result of this decision is that when an attorney fails to make the proper choices as to what defense to present and what mitigation evidence should be presented, a criminal defendant has been denied competent counsel as required under Rule 37. That is incorrect.
Much is made of Attorney James Claw-son’s status as a disbarred attorney in Oklahoma and his misconduct in Arkansas. The concurrence’s argument is based on the conclusion that Clawson was not qualified to represent Wooten in Arkansas because he had been disbarred in Oklahoma. However, at the time Clawson undertook Wooten’s representation, he was a licensed attorney in Arkansas. The concurrence is wrong. The question is not whether Claw-son was subject to disbarment in Arkansas based on the disbarment in Oklahoma, but is whether his conduct in representing Wooten effectively left him without counsel. It also should be noted that the drunk-driving and bankruptcy-fraud issues raised in the concurrence all occurred after the initial denial of Wooten’s initial Rule 37 petition on September 11,1997, and, therefore, after his representation of Wooten.
On appeal, Wooten’s case on his Rule 37 petition was reversed and remanded for the | ^circuit court to enter written findings as required by Rule 37.3(a), and, if necessary, to hold an evidentiary hearing to make the required findings. See Wooten v. State, 338 Ark. 691, 696, 1 S.W.3d 8, 11 (1999). Attorney Alvin Schay replaced Clawson and handled the second appeal after remand on the Rule 37 proceedings. In that appeal, Wooten argued that trial counsel’s “failure to put on mitigation evidence constituted ineffective assistance of counsel and left him a virtual stranger to the jury.” Wooten v. State, 351 Ark. 241, 245, 91 S.W.3d 63, 66 (2002). According to Wooten, this failure to provide adequate mitigation evidence amounted to “a breakdown of the adversarial process.” Id., 91 S.W.3d at 66. Wooten is again arguing that there was a breakdown in the proceedings. He also claims that his Rule 37 counsel was incompetent for failing to challenge the lack of mitigation evidence at trial. However, that issue has already been tried in the circuit court and reviewed on appeal. To say that Wooten never had his day in court on mitigation is simply incorrect. Clawson did raise and obtain a ruling in the circuit court on this issue. The appeal was handled by Schay, who has not been accused of failing to represent Wooten or of abandoning him.
The elephant in the room here is the question of why Wooten’s defense was mis-identification given that the overwhelming evidence identified Wooten as the perpetrator. Eyewitnesses viewed Wooten up close more than once shortly before the crimes were committed. There was pretrial identification of Wooten. Molly Porter described the characteristics of Wooten’s eye-teeth in identifying him as the perpetrator. Because Wooten’s defense was misidentification, rather than some other defense, such as mental incapacity, the |24impression is that trial counsel was not acting as effective counsel. But, Wooten did not assert the affirmative defense that he lacked the capacity to conform his conduct to the requirements of the law at the time the crimes were committed. Further, he did not assert that he was not competent to stand trial. Competence to stand trial is presumed, and the criminal defendant bears the burden of proving incompetence. Mask v. State, 314 Ark. 25, 32, 869 S.W.2d 1, 3 (1993). Thus, competence was not at issue in Wooten’s trial.
The United States Court of Appeals for the Eighth Circuit concluded that trial counsel “pursued a theory of mistaken identity.” Wooten v. Norris, 578 F.3d 767, 770 (8th Cir.2009). In his concurring opinion to that decision, Judge Bright stated that “[Wooten] received poor representation at trial.” Wooten, 578 F.3d at 786. Implicit in the Eighth Circuit’s analysis is the belief that Wooten’s attorney should have provided Wooten a very different defense. Failure of counsel to provide a defendant with a different defense from that which an appellate court believes would have been more effective cannot be a basis for recalling a mandate. Certainly Robbins and Lee do not support recalling a mandate based on such a basis.
It is doubtless that Wooten now regrets trying his case on misidentification, given that he was found guilty. However, the defense presented at trial was the defense that Wooten chose. A careful review of the record in this case reveals that Wooten’s defense was entirely consistent from the moment he first contacted police until this case was submitted to the jury on guilt.
Wooten called law enforcement and reported that someone had shot at him. He then | pjjtold law enforcement that a person who looked and dressed like him, took his six-wheeler and drove off. Wooten further told law enforcement that he heard shots and shortly thereafter found his six-wheeler. The evidence found in the six-wheeler, according to Wooten, was left there by the man who looked like him and dressed like him. Wooten required that this defense be followed at trial. Contrary to the conclusions of the Eighth Circuit Court of Appeals, the record on direct appeal reveals that counsel carefully prepared and tried the case, but that it was prepared on the theory of misidentification as Wooten required. While that may have been the weakest defense available, it is inaccurate to say that Wooten received poor representation. A review of the record on appeal reveals that counsel undertook substantial work on identification and other issues in preparation for trial. Wooten was able to, and did, participate in his defense. The idea that he was somehow left in the dark is not supported by the record.
The conclusion reached by the majority in this case is also based on the premise that because Wooten’s Rule 37.5 petition was not verified, he did not know its contents; therefore, he could not know that the circuit court was not asked to address his trial counsel’s alleged ineffectiveness in failing to present evidence of his mental illness and familial abuse in mitigation.1 This premise is faulty.
| ^Verification is a red herring. Verification by a criminal defendant in a Rule 37 proceeding is not verification that he or she read the petition and concluded that all issues that should be raised, have been raised. Rather, by verifying the Rule 37 petition, the criminal defendant makes a declaration under an oath that the statements that are contained in the petition are true. The affidavit form set out in Arkansas Rule of Criminal Procedure 37.1(c) bears this out, requiring that the petitioner state under oath that “[t]he facts in the petition are true, correct, and complete.” “[Vlerification is ‘[a] formal declaration made in the presence of an authorized officer, such as a notary public, or ... under oath but not in the presence of such an officer, whereby one swears to the truth of the statements in the document.’ ” Solis v. State, 371 Ark. 590, 594, 269 S.W.3d 352, 355 (2007) (quoting Shaw v. State, 363 Ark. 156, 157, 211 S.W.3d 506, 507-08 (2005)). Consistent with verification being an oath to the truthfulness of a document, in the context of postconviction proceedings, verification is required so the criminal defendant may be held criminally liable for perjury if the statements in the petition are not true. See Howard v. State, 366 Ark. 453, 236 S.W.3d 508 (2006).
Typically, where the petition for post-conviction relief is not verified, the denial of relief is simply affirmed by this court based on the lack of verification. Collins v. State, 365 Ark. 411, 414, 231 S.W.3d 717, 719 (2006). But, where the death penalty-has been imposed, | mwe have remanded the case for the petitioner to file a verified petition in the circuit court and, within fifteen days, to file a supplemental record in this court. See Howard, 366 Ark. at 455, 236 S.W.3d at 509. As the court’s opinion in Howard reveals, the lack of a verification alone does not result in a reversal and remand for a new Rule 37.5 petition and hearing below. There is no support in our precedent for the idea that a mandate should be recalled and a new Rule 37 proceeding be granted in a death case due to a lack of verification by the criminal defendant.
Collins does not hold that the failure to verify the Rule 37 petition in a death case is reversible error requiring a new Rule 37 proceeding. In Collins, this court held that there was a “breakdown in the post-conviction proceedings,” but the failure to verify the petition was a single issue among several issues raised in that case. Collins, 365 Ark. at 415, 231 S.W.3d at 720. By the time the Rule 37.5 petition in Collins was heard below, six years had passed since the mandate issued on his direct appeal. At no time over the course of those years, despite appointment of various counsel, were qualified counsel appointed to represent Collins in a Rule 37.5 proceeding. Additionally, several petitions for postconviction relief were filed, but none were verified by Collins. Collins began filing pro se petitions, which did not comply with the rule. Thereafter, new counsel began to act on Collins’s behalf, but no appointment was reflected in the record. Finally, a hearing was held in 2004, but while there was a transcript of the hearing in the record, no petition relating to that hearing was contained in the record. This court concluded that in that hearing, the court was not acting on a written l2SRule 37.5 petition. This was confirmed by the circuit 'court’s reference in the hearing to notes and a request that counsel draft a memorandum memorializing the hearing and the points raised. Under such a morass of multiple failures in the Rule 37.5 proceedings, this court concluded that there was a “breakdown in the postconviction proceedings.” Collins, 365 Ark. at 415, 231 S.W.3d at 720. This court did not hold that, standing alone, a lack of verification in a death case requires reversal and remand for new proceedings. In Collins, this court remanded for the appointment of qualified counsel, a verified petition that complied with Rule 37.5, and permitted Collins to raise any and all issues he wished to in a new proceeding. The comparison of Wooten’s case to Collins’s case is not valid.
Unlike Collins and Lee, Wooten has had an opportunity to present issues on post-conviction relief. Wooten offered mitigation evidence at trial. The focus of the testimony offered from the assistant jail administrator was that Wooten had adjusted to incarceration and would do well working a job within the prison system if he were sentenced to life without parole. Stanley Courtwright similarly testified that Wooten had been a good worker. While the Eighth Circuit Court of Appeals is critical of the brevity of the mitigation evidence, it is not questioned that the decision of what to present was considered, including the credibility of the witnesses. Further, the issue of whether trial counsel was ineffective in the choice of mitigation evidence was raised by attorney Alvin Schay in Wooten’s postconviction proceedings, and postconviction relief was denied.
Considering the outcome in this case, a different trial strategy might have been morej^effective. However, that is not a basis for the extraordinary relief sought. It cannot be the basis for recalling the mandate and providing a new Rule 37 petition. Lee clearly limited such relief to a situation where the criminal defendant was effectively left without counsel. Wooten had counsel in Clawson and in Schay. The decision reached in the present case opens the door in every death-penalty case to grant relief based on a failure of counsel to pursue a different strategy at trial. Wooten rigidly held himself and his counsel to the theory that it was another who committed the crimes. Clearly, he was unwilling to admit to the commission of the crimes, which would have been required for him to avail himself of the defense that his attorneys are now being labeled as grossly incompetent for failing to provide. Counsel certainly could not have simultaneously pursued the defenses of misidenti-fication and lack of capacity. Wooten chose to defend on identity. The consequences of that choice are now manifest. The evidence of identification was overwhelming, and Wooten has shown no prejudice.
Today, the majority recalls a mandate and permits Wooten to file a second Rule 37 petition because, as of this date, no verified petition has been filed. A hearing and appeal will presumably follow. Porter v. State, 389 Ark. 15, 2 S.W.3d 73 (1999), is cited in support of the decision to permit a second Rule 37 petition. However, Porter is not on point. First, Porter does not concern the lack of a verification; second, the relief granted was not the opportunity to file a second Rule 37 petition. In Porter, a death-penalty case, Porter was found to have been without counsel at the time the Rule 37 petition was due, which was good cause for his | .^failure to timely file a petition. The relief sought was to file a Rule 37 petition in the first instance.
The law on point in the present case is found in Howard. The relief due Wooten, for an unverified Rule 37 petition in a death-penalty case, is to remand for him to verify the existing petition already filed in this case and leave to file a supplemental record in this court to include that verified petition in the record on appeal. That would entitle Wooten to have his appeal from the Rule 37 hearing heard on appeal by this court and avoid a perfunctory affir-mance based on the lack of verification.' However, Wooten’s appeal was heard by this court, so the issue of the lack of verification is moot. The majority is creating new law on verification that is cut out of whole cloth.
Wooten was convicted of capital murder, criminal attempt to commit murder, and aggravated assault for an incident that occurred over sixteen years ago. He timely filed a Rule 37 petition and then argued that his counsel at trial was ineffective for failure to pursue the correct defense and for putting on mitigation evidence that left him a virtual stranger before the jury. He alleged there was a breakdown in the Rule 37 process. Those issues have already been litigated and reviewed on appeal. The majority, in reaching its conclusion, ignores postconviction procedures and our standard of review. Certainly, this court has the inherent authority to recall a mandate. But, this ease is not Robbins or Lee. It is not a case where justice requires the recalling of the mandate. I would deny the petition.
WILLS, J., joins.. The premise that verification assures this court that the petitioner has seen the petition and confirmed agreement with its contents raises a rather thorny question that threatens longstanding precedent regarding an attorney, as an officer of the court, and his or her representation of a client. The rule is that an attorney who appears in court is presumed to represent the client, and the client bears the burden of proving this not to be the case. Shields v. QHG of Springdale, Inc., 2009 Ark. 88, at 7, 302 S.W.3d 598, 602. A rule that requires a verification to prove that the attorney is presenting in court those issues that the client wishes undermines the attorney-client relationship and the trust that this court has historically placed in attorneys as officers of the court.