dissenting. This case arises from .a motion filed by petitioner, Andrew Engram, on November 5, 2003, to recall the mandate and to reopen his case. The majority declines to recall the mandate and reopen the case on the basis that the issue of mental retardation was not ruled upon at the competency hearing, that it was not raised in a direct appeal, and that petitioner waived any potential Rule 37 relief. I respectfully disagree. I believe that petitioner’s case falls under the first Wicks exception, which provides that we may consider an argument raised for the first time on appeal when “the trial court[ ] fail[ed] to bring to the jury’s attention a matter essential to its consideration of the death penalty itself.” See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
I. Robbins
The issue in this case is whether extraordinary circumstances exist to warrant recalling the mandate and opening appellant’s case. Appellant argues that, pursuant to our decision in Robbins VI, supra, we should recall the mandate issued onjanuary 12, 2001, and allow appellant to exhaust his claims, including the issue of mental retardation, in Pulaski County Circuit Court.
In Robbins VI, supra, we recognized that the death penalty demands unique attention to procedural safeguards, and citing both federal and state case law to support this proposition, we stated:
The United States Supreme Court has made that abundantly clear. See, eg., Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) (“This Court has repeatedly said that under the Eighth Amendment ‘the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.’ ”) (quoting California v. Ramos, 463 U.S. 992, 998-999, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983)); Zant v. Stephens, 462 U.S. 862, 884-885, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) (“[Because there is a qualitative difference between death and any other permissible form of punishment, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”) (quotations omitted); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.”); Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S. Ct. 869, 71 L. Ed. 2d 1 (O’Connor, J., concurring) (“[T]his Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.”).
This court, early on, voiced its belief in the “humane principle applicable in general to criminal cases, and especially those where life is involved,” and declined to exalt form over substance when dealing with the death penalty. Bivens v. State, 11 Ark. 455, 457 (1850).
Robbins VI, supra.
Robbins petitioned our court to recall the mandate and reopen his case because he alleged that we failed to recognize that the jury was inconsistent in completing Verdict Form 2, which deals with mitigating circumstances. Id. The State maintained that his claim was barred, particularly in light of our Rule 4-3 (h) review of Robbins’s case. Id.
We held that the mandate should be recalled and the case reopened for three reasons. Id. First, we recognized that our decision in Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995), might require resentencing, as there was an alleged comparable verdict form deficiency in Willett. Second, we acknowledged that the federal district court dismissed Robbins’s habeas corpus petition because the verdict-form issue had not been addressed in our court, notwithstanding that there had been five appellate reviews by our court. See State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000) (“Robbins V”) (holding that no Rule 4-3(h) errors, Wicks errors, or errors implicating other fundamental safeguards occurred during the trial); State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999) (“Robbins IV”) (holding that, in death-penalty cases, we must conduct an independent review of the record to determine whether errors occurred under Rule 4-3(h), whether any Wicks violations occurred, or whether fundamental safeguards were in place during the trial); State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999) (“Robbins IIF’) (recalling the mandate, staying the execution, and ordering briefing from Robbins and the State); State v. Robbins, 336 Ark. 377, 985 S.W.2d 296 (1999) (“Robbins IF’) (per curiam) (waiving his right to seek Rule 37 postconviction relief); State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998) (“Robbins F’) (per curiam) (waiving his right to an appeal). Third, we emphasized that a heightened scrutiny is required in a death-penalty case. Finally, we noted that the original verdict forms were not included in the record. We issued a writ of certiorari and ordered that the record be supplemented with the original verdict forms. Id.
Petitioner’s case is similar to Robbins VI, supra, in that his case has been dismissed in federal court to allow him to pursue additional claims, including the claim involving mental retardation, in state court. Petitioner’s case is also similar to Robbins VI, supra, in that the death penalty has been imposed.
Plowever, in this proceeding, petitioner asks us to reinvest jurisdiction in the trial court for consideration of his claim of mental retardation pursuant to Atkins, supra. In Atkins, the Supreme Court held that the executions of mentally retarded criminals constitute cruel and unusual punishment prohibited by the Eighth Amendment. The Court found that its death penalty jurisprudence provided “two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution.” Id. First, the Court noted, “there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders.” Id. The Court further stated that “[t]he reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty.” Id.
It is well-established that the issue of competency is determined by an application of statutory criteria that are not the same as those used to determine mental retardation. The standard under our law for determining competency for purposes of execution is whether a condemned person understands “the nature of and reason for the punishment.” Singleton v. Norris, 332 Ark. 196, 199, 964 S.W.2d 366 (1998) (citing Ark. Code Ann. § 16-90-506(d)(1)(A) (Supp. 1997)).
In the present case, petitioner was found to be competent at his competency hearing held on March 19, 1998, but the trial court made no finding as to mental retardation. At the beginning of the hearing, the issue of mental retardation was raised in the following colloquy:
The Court: All right. This is case 97-2685, State of Arkansas versus Andrew Engram. Mr. Fraiser is here with the prosecutor’s office and Ms. Harris and Mr. Qualls are here for the defendant. And this is a hearing on competency, is that correct, Mr. Qualls?
Mr. Qualls: That’s correct,Your Honor. Competency, responsibility and IQ to determine whether Mr. Engram is mentally retarded.
The Court: All right, then. You may proceed.
Evidence was presented by Dr. John Anderson of the Arkansas State Hospital that petitioner’s IQ was in the range of seventy-six to eighty-six. Dr. Anderson based his testimony upon information in the prosecutor’s file, social history, psychiatric interviews, the Kaufman Brief IQ Test, and the results from the MMPI. Dr. Anderson testified that he believed petitioner did not have mental retardation and that petitioner was competent to stand trial, but testified on cross-examination that petitioner could fall within a borderline range between mental retardation and average functioning.
The issue of mental retardation was raised by defense counsel at the competency hearing, but the trial court never ruled on it. Nor did defense counsel request such a finding. When the State asked the trial court to find petitioner competent, the trial court replied, “So be it,” and requested that the State prepare an order “reflecting that[.]” No such order is contained in the record.
The issue of mental retardation was not raised on direct appeal, and petitioner’s postconviction counsel failed to file a Rule 37 petition within the sixty-day limit after our mandate issued on January 12, 2001, as required by Ark. R. Crim. P. 37.2, but rather waived any potential claims at the Rule 37 hearing on June 25, 2001, which was conducted approximately five months after our mandate issued. At that hearing, petitioner’s postconviction counsel expressed a desire to proceed under habeas proceedings in federal district court without first exhausting state claims.
II. Wicks exception
Because the trial court failed to rule on the issue of mental retardation in petitioner’s competency hearing, the question is whether a Wicks exception is applicable to the present case.
We recognize claims of fundamental error through Wicks v. State, 270 Ark. 781, 785, 606 S.W.2d 366, 369 (1980). The four recognized Wicks exceptions are: (1) when the trial court fails to bring to the jury’s attention a matter essential to its consideration of the death penalty itself; (2) when defense counsel has no knowledge of the error and hence no opportunity to object; (3) when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly; and (4) under Ark. R. Evid. 103(d) the appellate court is not precluded from taking notice of errors affecting substantial rights, although they were not brought to the attention of the trial court. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003).
Petitioner has framed his argument in such a way that it falls under the first Wicks exception, which informs us that in cases in which the death penalty is imposed, we do review “the trial court’s failure to bring to the jury’s attention a matter essential to its consideration of the death penalty itself’ without the requirement of an objection by counsel. Wicks, supra. In Wicks, we cited two examples of the first exception to our objection rule. In Wells v. State, 193 Ark. 1092, 104 S.W.2d 451 (1937), the trial court failed to require the jury to find the degree of the crime, as required by statute, so the jury might have imposed the death penalty for a homicide below first-degree murder. In Smith v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943), the trial court failed to tell the jury that it had the option of imposing a life sentence.
In this case, at the time of the competency hearing, the trial court was well aware that Ark. Code Ann. § 5-4-618 (Repl. 1997), which prohibits the execution of persons with mental retardation, was already in effect. Arkansas Code Annotated § 5-4-618 provides in pertinent part:
(a) (1) As used in this section, “mental retardation” means:
(A) Significantly subaverage general intellectual functioning accompanied by significant deficits or impairments in adaptive functioning manifest in the developmental period, but no later than age eighteen (18); and
(B) Deficits in adaptive behavior.
(2) There is a rebuttable presumption of mental retardation when a defendant has an intelligence quotient of sixty-five (65) or below.
(b) No defendant with mental retardation at the time of committing capital murder shall be sentenced to death.
(c) The defendant has the burden of proving mental retardation at the time of committing the offense by a preponderance of the evidence.
(d) (1) A defendant on trial for capital murder shall raise the special sentencing provision of mental retardation by motion prior to trial.
(2) Prior to trial, the court shall determine if the defendant is mentally retarded.
Id. (emphasis added).
With regard to Ark. Code Ann. § 5-4-618, we stated in Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004):
We believe that the Court in Atkins merely reaffirmed this state’s pre-existing prohibition against executing the mentally retarded. Section 5-4-618(b), which is part of Act 420 of 1993, provides that no defendant with mental retardation at the time of committing capital murder shall be sentenced to death ...
Section 5-4~618(a)(2) establishes a rebuttable presumption of mental retardation when a defendant has an intelligence quotient of sixty-five or below. See Ark. Code Ann. § 5-4-618(a)(2) (Repl. 1997). It specifically places the burden on the defendant to prove mental retardation at the time of committing the offense by a preponderance of the evidence. See Ark. Code Ann. § 5-4-618(c). The statute then sets forth the procedure by which a defendant charged with capital murder shall raise the special sentencing provision of mental retardation.
Anderson, supra. I believe Ark. Code Ann. § 5-4-618, which was already in effect at the time of Atkins, supra, is the Arkansas Legislature’s method of assuming the “task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” Atkins, supra (quoting Ford v. Wainwright, 477 U.S. 399 (1986)).
I maintain that petitioner’s case falls within the first Wicks exception because the trial court did not make a ruling on the question whether petitioner is mentally retarded, as required by Ark. Code Ann. § 5-4-618(a) (2). Here, the trial court abused its discretion in failing to take appropriate action to ensure that the death penalty would be imposed only after a determination is made that the accused is not mentally retarded. This ruling was essential because the death penalty would not have been presented to the jury for their consideration if the trial court had ruled that the petitioner was mentally retarded under Ark. Code Ann. § 5-4-618. Therefore, I conclude that the trial court’s failure to make a determination as to mental retardation, pursuant to Ark. Code Ann. § 5-4-618, constituted a failure by the trial court “to bring to the jury’s attention a matter essential” to the imposition of the death penalty under Wicks, supra.
For the foregoing reasons, I would grant petitioner’s motion to recall the mandate, and I would remand the matter to the trial court for the limited purpose of making a determination of whether petitioner is mentally retarded in accordance with the requirements of Ark. Code Ann. § 5-4-618 and Atkins, supra.