Cite as 2022 Ark. App. 219
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-21-604
Opinion Delivered May 11, 2022
RANDY MITCHELL
APPELLANT APPEAL FROM THE SHARP
COUNTY CIRCUIT COURT
V. [NO. 68CR-19-70]
HONORABLE ROB RATTON, JUDGE
STATE OF ARKANSAS
APPELLEE APPEAL DISMISSED WITHOUT
PREJUDICE
KENNETH S. HIXSON, Judge
Appellant Randy Mitchell brings this interlocutory appeal after the Sharp County
Circuit Court denied his motion for declaratory judgment in his criminal case. On appeal,
appellant contends that the circuit court erred in denying his motion for declaratory
judgment because there was substantial evidence to support the motion. We dismiss this
appeal without prejudice for lack of jurisdiction.
I. Relevant Facts
Appellant was charged by amended criminal information with terroristic threatening
in violation of Arkansas Code Annotated section 5-13-301 (Repl. 2013), a Class D felony;
violating of an order of protection in violation of Arkansas Code Annotated section 5-53-
134 (Repl. 2016), a Class A misdemeanor; and intimidating a witness in violation of
Arkansas Code Annotated section 5-53-109 (Repl. 2016), a Class C felony. The State further
sought an enhanced sentence under the habitual-offender statute, Arkansas Code Annotated
section 5-4-501(a) (Supp. 2021). This interlocutory appeal concerns only the second charge—
violating an order of protection—in which the State alleged the following:
The said defendant in the 11th District of SHARP County, did unlawfully and
feloniously on or about April 17, 2019 commits the offense of violation of an order
of protection if a circuit court or other court with competent jurisdiction has issued
a temporary order of protection or an order of protection against him or her pursuant
to the Domestic Abuse Act of 1991, § 9-15-101 et seq.; He or she has received actual
notice or notice pursuant to the Arkansas Rules of Civil Procedure of a temporary
order of protection or an order of protection pursuant to the Domestic Abuse Act of
1991, § 9-15-101 et seq.
On May 17, 2021, appellant filed a motion styled “Motion for Declaratory
Judgment.” In this motion, he alleged that the purported service of the underlying order of
protection he was alleged to have violated was invalid because it is unsigned by the server, it
is not signed under penalty of perjury, the server did not declare it to be true and correct at
the time of filing, and the filed proof of service is defective and in invalid on its face. In his
brief in support, appellant alleged that he is entitled to a declaratory judgment under
Arkansas Code Annotated section 16-111-101 (Repl. 2016) and Jegley v. Picado, 349 Ark. 600,
80 S.W.3d 332 (2002). Therefore, appellant requested “a declaratory judgment that the
proof of service filed in this case regarding the order of protection is defective, and it should
be excluded from evidence.” A hearing on this motion and other pretrial matters was held
on June 15, 2021.
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At the hearing, the State asserted that all the motions were premature and were
evidentiary matters that should be raised at trial. However, the circuit court agreed to hear
testimony on the matter. Appellant testified that he lived at a different address than what is
listed as the address where he was allegedly served with notice of the order of protection.
Appellant acknowledged that he knew that he was accused of violating an order of
protection; however, he testified that he had not seen a copy of the order of protection. A
one-page document was admitted into evidence that included two sections labeled proof of
service and declaration of server. The proof-of-service section was completely filled out and
stated that appellant was served in person on November 6, 2018, at 5:30 p.m. at an address
in Williford, Arkansas. Deputy Marc Boyd’s name was printed on the line that requested
the printed name of the server. However, the signature line in the declaration-of-the-server
section, where the server was to sign that he or she “declare[s], under penalty of perjury under
the laws of the State of Arkansas that the foregoing information contained in the proof of
service is true and correct,” was left blank. Appellant finally testified that he does not know
Deputy Boyd and disputed that he had been served with an order of protection by him.
Deputy Boyd testified that he remembered serving appellant with the order of
protection and acknowledged that it is his handwriting on the proof-of-service document
admitted in evidence. Deputy Boyd admitted that the signature line in the declaration-of-
server section was left blank. He explained that there could have been a hundred reasons as
to why he forgot to sign the declaration, including that he could have received a call on the
radio while he was completing the form. However, Deputy Boyd stated under oath and
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under the penalties of perjury that he, in fact, had served appellant with the order of
protection.
Chelsea Strother testified that she is the niece of Robin Mitchell, the complaining
party in the order of protection. According to Ms. Strother, appellant had communicated
with her and asked her to discuss matters with Ms. Mitchell on his behalf. Ms. Strother
testified that in the messages from appellant, “he even mention[ed] dismissing charges,
dismissing matters not only related to the divorce but with the order of protection.”
Appellant’s counsel orally argued at the hearing that appellant could not have violated
an order of protection for which he was not properly served notice. Counsel further argued
that the service here was not completed in accordance with the Arkansas Rules of Civil
Procedure. He claimed that Arkansas Code Annotated section 5-53-134 required an order
of protection to be served in accordance with Rule 5 of the Arkansas Rules of Civil Procedure
in order for appellant to be found in violation of the order of protection. He stated that
“because that’s not been done here it’s an invalid document. And that’s what I would like
to have the Court to declare.” The State acknowledged that the declaration portion was not
filled out by the server; however, it contended that a motion for declaratory judgment was
not proper in a criminal case and, alternatively, that appellant had actual service in this case
as testified under oath by Deputy Boyd. The circuit court took the matter under advisement
and allowed the parties to submit any additional caselaw to the court before it made its
ruling.
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In his posthearing brief, appellant asserted that motions for declaratory judgment are
proper in criminal cases as well as civil cases under the supreme court’s holding in Jegley,
supra. Appellant reiterated that because the proof of service is defective on its face, he is
entitled to a declaratory judgment and that the circuit court “should rule on the motion to
establish the clear facts regarding the proof of service of the violation of protection order at
the center of this case.” Appellant additionally attempted to distinguish the State’s reliance
on Israel v. Oskey, 92 Ark. App. 192, 212 S.W.3d 45 (2005), in which the supreme court
affirmed a circuit court’s entry of default judgment in a civil negligence action after finding
that there was valid service. In Israel, the server had failed to provide an affidavit to prove
her service of a summons as required by Arkansas Rule of Civil Procedure 4. The supreme
court explained that there is a distinction between service and proof of service and that
“[f]ailure to make proof of service does not affect the validity of service, because proof of
service may be made by means other than demonstration on the return of the serving
official.” Israel, 92 Ark. App. at 201, 212 S.W.3d at 51. Appellant argued that Israel is
distinguishable from the case at bar because Israel had admitted that he received service,
whereas in this case, appellant did not. Therefore, he argued that Rule 4 does not apply
because “the server [here] did make proof of service” but instead the proof was “made
without compliance.”
On July 28, 2021, the circuit court filed an order denying appellant’s motion for
declaratory judgment. This interlocutory appeal followed.
II. Jurisdiction
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Before addressing the merits of appellant’s arguments, we must first determine
whether we have jurisdiction of this interlocutory appeal. Appellant claims we have
jurisdiction in this interlocutory appeal pursuant to Rule 2(a) of the “Arkansas Rules of
Appellate Procedure.” However, appellant’s argument with citation to the Arkansas Rules
of Appellate Procedure is without merit because the supreme court divided the appellate-
procedure rules between civil and criminal cases effective on January 1, 1996. See In re Revised
Rules of App. Proc., 321 Ark. 663, 900 S.W.2d 560 (1995) (per curiam). Even though
appellant claims that his motion styled “Motion for Declaratory Judgment” was filed
pursuant to Arkansas Code Annotated section 16-111-101, our appellate courts “have
consistently held that courts should not be guided blindly by titles but should look to the
substance of motions to ascertain what they seek.” Mhoon v. State, 369 Ark. 134, 137, 251
S.W.3d 244, 247 (2007). Here, regardless of how appellant styled or titled his motion, this
is a criminal case, and the Arkansas Rules of Appellate Procedure–Criminal must govern
this appeal.
A defendant does not have any general right to an interlocutory appeal in criminal
cases. Butler v. State, 311 Ark. 334, 842 S.W.2d 435 (1992). In fact, Rule 2 of the Arkansas
Rules of Appellate Procedure–Criminal does not even address interlocutory appeals. See
Shaver v. State, 2018 Ark. App. 242, 548 S.W.3d 222. The supreme court has identified a
few narrow exceptions in which it has held that our appellate courts do have jurisdiction in
an interlocutory appeal; however, none of those exceptions are applicable here. See Samontry
v. State, 2012 Ark. 105, at 5, 387 S.W.3d 178, 182 (involving an interlocutory appeal from
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an order of the circuit court disqualifying counsel); Williams v. State, 371 Ark. 550, 558, 268
S.W.3d 868, 874 (2007) (involving an interlocutory appeal from an order rejecting a double-
jeopardy defense); Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995) (holding that an
appeal from an order granting or denying the transfer of a case from one court to another
having jurisdiction over juvenile matters must be considered by way of interlocutory appeal).
Appellant alternatively argues that we have jurisdiction because the facts of this case
merit an exception to the general rule like cases involving an order rejecting a double-
jeopardy defense. He claims that his constitutional right to due process is at stake and that
his right to due process would be lost if the case goes to trial. We disagree.
The supreme court has specifically declined to hear pretrial matters pertaining to
speedy trial, equitable estoppel, judicial estoppel, and due process in a criminal interlocutory
appeal. See Edwards v. State, 328 Ark. 394, 943 S.W.2d 600 (1997); Williams, supra. In
Edwards, the defendant raised arguments of equitable estoppel, judicial estoppel, and
violation of his due-process rights in an interlocutory appeal in addition to a double-jeopardy
argument. Edwards, supra. Although our supreme court addressed the defendant’s double-
jeopardy argument, it held that issues pertaining to equitable estoppel, judicial estoppel, and
due process were premature and did not warrant the protection of an interlocutory appeal
as does a double-jeopardy argument. Id. Instead, it concluded that those issues may be later
considered on direct appeal, if necessary. Id. As such, we decline to address the merits of
appellant’s arguments in this interlocutory appeal and dismiss his appeal without prejudice.
See Williams, supra.
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Appeal dismissed without prejudice.
GLADWIN and KLAPPENBACH, JJ., agree.
The Legal Oak Law Firm, by: Jody L. Shackelford, for appellant.
Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.
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