dissenting.
Mr. Ortega timely filed a motion in this court asking for just one thing: additional time to complete his appellate brief. No other issue was before this court on this case. Rule 4-4(f) of the Rules of the Arkansas Supreme Court expressly provides for the filing of such a motion for extension of time.to file a brief, and Mr. Ortega complied with the requirements of the rule. Yet, the majority has summarily dismissed his case, purportedly because he could not prevail on the merits. Remarkably, the conclusion that Mr. Ortega could not prevail on the merits of his appeal was made before Mr, Ortega even filed his brief.
The Arkansas Constitution gives Mr. Ortega the right to appeal the circuit court’s denial of his petition for Rule 37 relief. See Ark. Const, amend. 80, § 11. The due process that Mr. Ortega is entitled to is defined by our various rules of appellate procedure. This includes the previously mentioned Rule 4-4, which gives every appellant the right to request additional time to file his or her brief. While summary dismissal of an appeal is possible under our rules, that drastic consequence may be invoked only if an appellant fails to timely file a brief. Ark. Sup. Ct. R, 4-5. Accordingly, summary dismissal of 'Mr. Ortega’s appeal after he timely filed a motion for an extension of time to file his brief does not comport with our rules. I.t is inconceivable that any of my colleagues, experienced jurists all, would intentionally set out to deprive Mr. Ortega his right to due process; however that, is the effect of the majority opinion.
InRelief pursuant to a Rule 37 petition is defined by Rule 37.4, which states that “the circuit court may set aside the original judgment, discharge the petitioner, re-sentence him or her, grant a new trial, or otherwise correct the ■ sentence, as may appear appropriate in.the proceedings. It is an extraordinarily rare remedy; virtually no one has received Rule 37 “relief’ since the Rule was adopted by this court on October 29, 1990. I am aware of only two cases in which a prisoner received Rule 37 relief: Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002), and Rackley v. State, 2014 Ark. 39, 2014 WL 346713. Flores is atypical in that Flores’s appellate attorney preserved an ineffective-as’sis-tance-of-counsel claim in a posttrial motion and argued it in his direct appeal.1 Flores was also represented by counsel.
Rackley, on the other hand, involved a pro se petition for Rule 37 Relief in which Rackley asserted that his trial counsel was ineffective because he represented both father and mother in a child sexual-abuse prosecution and this had presented an irredeemable conflict. After the circuit court summarily dismissed his petition, this court reversed and remanded the case for an evidentiary hearing and factual findings. Rackley v. State, 2010 Ark. 469, 2010 WL 4922390 (per curiam). After the circuit court again denied Rackley Rule 37 relief, this Imcourt reversed and remanded the case for a new trial in an opinion signed by Justice Cliff Hoofman.
I am mindful that occasionally, this court reverses summary dismissal "of a Rule 37 petition and orders the circuit court to make specific findings of fact. That disposition is little more than direction to comply with the mandatory language of Rule 37.3(a), which states:
(a) If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.
(Emphasis supplied.) The fact that'rfe-manding- for factual- findings was the so-called “appellate relief’ touted by the concurring justice is troubling indeed.2
Considering the clarity of Rule 37.3(a), when this court remands a Rule 37 case to a circuit court to make mandatory factual findings, it seems to indicates that at least some of the trial courts of this state hold this remedy in very low regard. This is particularly troubling because 11 of the 19 cases cited by the concurring justice are death-penalty cases. Engram v. State, 2013 Ark. 424, 430 S.W.3d 82; Sanders v. State, 2011 Ark. 127, 2011 WL 1176243; Green v. State, 356 Ark. 59, 146 S.W.3d 871 (2004); Collins v. State, 365 Ark. 411, 231 S.W.3d 717 (2006); Johnson v. State, 356 Ark. 534, 157 S.W.3d 161 (2004); Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001); McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001); Echols v. 11State, 344 Ark. 513, 42 S.W.3d 467 (2001); Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001); Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999); Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). Because the petitioners in those cases are under sentences. of death,. Rule 37.5 provides special exemption from many of the procedural defaults that snare convicted persons facing lesser sanctions.
Rule 37 could be an invaluable tool for this court to assess whether the State of Arkansas is providing competent counsel as the state and federal constitutions require. However, as a long-serving supreme court justice once noted that Rule 37 was adopted to keep this issue out of federal courts. In my view, this was a grave error.
Effective counsel means more than, simply posting a lawyer with a law license at the defense table. In the real world, there are few Perry Mason moments where the real perpetrator is discovered and the defendant is set free. However, competent defense counsel is essential in helping the finder of fact to decide the nature and level of culpability for a particular criminal act. The most obvious example is the determination of whether a homicide was first-degree murder or a lesser offense, possibly even manslaughter. The determination of the proper level of culpability directly corresponds to the length of a prison sentence. Ours is an adversarial system; without a competent defense, a criminal defendant could easily receive a much greater sentence than the law contemplates. There is no state interest in keeping a person in prison beyond the time set by the legislature for a particular crime. Moreover, with Arkansas’s prison population exceeding 19,000, unjustly long sentences are something that we simply cannot afford.
| ^However, rather than trusting federal habeas proceedings, we have instituted a state-court process that generally does not provide indigent incarcerated people with assistance of counsel to draft their petition in which the allegations of ineffective-assistance of counsel must be raised. Furthermore, without an additional filing, it is unlikely that these pro se petitioner will even have a copy of his trial transcript to work with. In the case before us, Mr. Ortega stated as one of his grounds for requesting additional time the fact that he did not have access to his trial transcript. Finally, those incarcerated persons who receive an evidentiary hearing almost always have the proceeding presided over by the same trial judge who presided over the criminal trial.
While Rule 37 allows petitions to be handwritten, the petitioner is limited to no more than ten pages regardless of whether it is typed or handwritten. Ark. R. Crim. P. 37.1(b). Furthermore, each page is limited to thirty lines and fifteen words per line. Id. Inexplicably, Mr. Ortega submitted his petition on a preprinted form that required him to state his grounds for asserting ineffective assistance of counsel on just fifteen lines. The form also provided additional space of 23 lines for other asserted reasons for postconviction relief. Accordingly, it is not surprising that the circuit court — and a majority of this court — found Mr. Ortega’s petition wanting. In my view, this form requires further investigation. A copy of this form should be forwarded to the Supreme Court Committee on the Unauthorized Practice of Law.
I have not decided the merits of Mr. Ortega’s case because it is inappropriate to do so. The issue at this point in the appellate process is whether we grant Mr. Ortega | ^additional time to complete his brief. Until Mr. Ortega files his brief, he has not perfected his appeal,
I respectfully dissent.
. The issue that Flores prevailed on, that he was forced to go to trial in jail clothing, was not otherwise cognizable on direct appeal because, as the Flores court noted, “Trial counsel failed to file any pretrial motions, failed to make any trial motions, failed to object to any evidence presented at trial. Trial counsel’s inaction waived all possible issues, constitutional or procedural, to be raised on appeal." 350 Ark. at 206, 85 S.W.3d at 900-01.
, I note that in two of the cases cited by the concurring justice, even this so-called “appel- - late relief” was not afforded the petitioner. In those cases the denial of Rule 37 relief was affirmed.