concurring in part and dissenting in part. I agree with the majority that Reverend Louis J. Franz has no standing to pursue an appeal on behalf of Ronald Gene Simmons. While this court is confronted for the first time with the standing and competency issues in a death penalty situation, those issues have been considered and decided in numerous cases in other jurisdictions. See Smith, Mo. Public Defender Comm’n v. Armontrout, 812 F.2d 1050 (8th Cir. 1987); Lovelace v. Lynaugh, 809 F.2d 1136 (5th Cir. 1987); Rumbaugh v. McKaskle, 730 F.2d 291 (5th Cir. 1984); Hays v. Murphy, 663 F.2d 1004 (10th Cir. 1981); Davis v. Austin, 492 F. Supp. 273 (N.D. Ga. 1980); State v. Hightower, 214 N.J. Super. 43, 518 A.2d 482 (1986); and State v. Bailey, 519 A.2d 132 (Del. Super. Ct. 1986). All of the foregoing decisions cite Gilmore v. Utah, 429 U.S. 1012 (1976), and in relying on Gilmore, those courts have either generally, or specifically, adhered to the proposition that a defendant who has been sentenced to death can make a competent, knowing and intelligent choice to abandon further litigation, and when that choice is made, it will be honored by the courts. In each of the cases set out above, the court, quoting from Rees v. Peyton, 384 U.S. 312 (1966), posed the critical issue as follows: “Whether the defendant has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” If the defendant is determined to be competent, then a next friend has no standing to pursue further proceedings when the defendant chooses not to proceed.
In the present case, the trial judge held hearings to determine Simmons’s competency, and after analyzing considerable evidence and testimony, the judge found Simmons had the capacity to waive his right to an appeal. It is this court’s duty to review the lower court’s findings under the clearly erroneous standard. Cf. Smith, Mo. Public Defender Comm’n, 812 F.2d at 1058. The majority opinion details much of the testimony taken during the hearings bearing on the competency issue, and I thoroughly agree with the finding that the trial judge’s decision is not clearly erroneous.
In reaching its decision, the majority concludes that this court must review a lower court’s determination on the issue of the waiver of an appeal in a capital case. While the court gives no basis for its holding, I have no doubt that such a decision is required by the Supreme Court’s holding in Gilmore. It is really unimportant why the majority has decided that an appellate review is necessary in order to examine the waiver issue in capital cases, but once the majority did so, I believe it should have expanded such a review to include the sentencing stage of a defendant’s trial. My reasons for suggesting such a review are several.
First, the Supreme Court has not yet decided the issue as to whether a defendant has the power to waive the right to a state appellate review. Gilmore, 429 U.S. at 1017 (Burger, C.J., concurring). Instead, the Supreme Court in Gilmore merely reviewed the record bearing on Gilmore’s competency and decided his mother did not have standing to speak for him. I believe the Supreme Court’s holding implicitly requires that an appellate review be given in such competency matters. However, little more can be gleaned from the Gilmore decision. As a consequence, the Supreme Court — as well as this court — must still decide whether appellate reviews are mandated in capital cases. This court in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), discussed this very issue and by a four-to-three vote, the majority concluded that a mandatory or automatic appeal of a judgment imposing the death penalty is not required. Justice George Rose Smith wrote a persuasive dissenting opinion asserting that a mandatory review should be provided. Nothing more on the subject has been done by either this court or the General Assembly, and the Supreme Court has not reached or conclusively decided whether such appeals are mandated by the Constitution.
In addition to the fact that a substantial constitutional question still remains unresolved concerning the question of mandatory review, Arkansas, and perhaps Ohio, are the only states that have no specific provisions for an automatic review of capital cases. See U.S. Dept. of Justice, Bureau of Justice Statistics, Bull., Capital Punishment, 1986 (Sept. 1987).1 Although Ohio has been noted as a state that does not provide for an automatic review, the case of State v. Brooks, 25 Ohio St. 3d 144, 495 N.E.2d 407 (1986), lends some argument to the contrary. While such issue was not specifically addressed in Brooks, it is important to note that Brooks’s motion to withdraw his appeal of the death sentence was denied by the Ohio appellate court even though the record reflected Brooks was competent to stand trial.2 After denying Brooks’s motion, the Ohio Court of Appeals, and later the Ohio Supreme Court, reviewed Brooks’s death sentence in detail, concluding that the sentence was proper. In sum, out of the thirty-seven states that provide for the death penalty, thirty-five of them require an automatic review. As pointed out, the Ohio courts, representative of one of the two states that have no automatic review requirement, have failed to address the issue directly, but instead opted to review a capital case even after the defendant (who was found competent to stand trial) sought to abandon his right of appeal. Thus, by the majority’s opinion Arkansas becomes the only state that actually has chosen not to review a death penalty case.
Another reason for requiring reviews in death penalty situations is reflected in this state’s present laws. Arkansas’s laws clearly provide that great scrutiny be given death penalty cases before a defendant is executed. For example, in capital felony murder cases, a separate phase of the trial is required for sentencing, at which evidence relating to aggravating or mitigating circumstances may be presented to the same jury that found the defendant guilty of the crime. Ark. Code Ann. § 5-4-602 (1987). The jury is authorized to impose the death sentence only if it unanimously returns written findings that the aggravating circumstances exist beyond a reasonable doubt, that the aggravating circumstances outweigh all mitigating circumstances, and that the aggravating circumstances justify a sentence of death beyond a reasonable doubt. Ark. Code Ann. § 5-4-603 (1987). Also, this court has held that the review of capital cases with death sentences requires the court to consult prior cases as precedent in order to determine whether there was error in the sentencing procedure, whether the evidence was sufficient to support any finding made by the jury, whether any of the findings were the result of passion or prejudice or other arbitrary factors and whether there was an abuse of discretion of either the jury or the trial judge in imposing sentence. Collins, 261 Ark. at 221, 548 S.W.2d at 212. Furthermore, this court is mandated under A.R.Cr.P. Rule 36.24 and Ark. Sup. Ct. R. 11(f) to review the entire record for errors prejudicial to the right of the appellant. Obviously, without mandatory appellate review, none of thé foregoing legal requirements can be measured when a defendant chooses to waive his right to appeal — which leads me to the final reason why I believe the appellate review of a defendant’s sentence should be required.
In my view, no criminal defendant, including Simmons in this cause, should dictate this state’s policy concerning whether death sentences should be reviewed. The question posed in these cases in no way involves the constitutionality of the death penalty itself. The courts are, however, confronted with the various constitutional and statutory requirements needed to be complied with when imposing the death penalty.
In a number of cases cited earlier in this opinion, the criminal defendants often changed their minds during their trials or appeals as to whether they desired to abandon or continue their rights of appeal. Obviously, such changes in attitude can be expected, but those changes also lead to extensions and delays in the judicial process. This court can avoid such delays by taking charge of this state’s appellate process and requiring that in every capital case where the death penalty has been imposed, the court will automatically review the lower court’s record of the sentencing phase of the trial.
The majority has — as I believe Gilmore requires — provided for review of any competency hearing required when a defendant chooses to waive his or her right of appeal. In the present case, a little more than two months have transpired between Simmons’s competency hearing and this court’s final review of that hearing. In my estimation, no delay would have been added if this court had reviewed the sentencing stage of Simmons’s trial. By adopting such a review procedure, the court would allow any defendant to waive his right of appeal concerning his guilt, but at the same time, the state’s highest court would provide a prompt review concerning whether the death penalty was constitutionally and appropriately imposed. This would ensure the scrutiny of death penalty cases that our law mandates.
Because Arkansas’s present procedure is, in my view, constitutionally suspect, this court could avoid those constitutional questions and potential pitfalls by reviewing the sentence phase of death penalty cases. Such a review would, at the same time, provide a more expeditious manner by which such capital cases may be disposed. Certainly, such a review procedure would place the process of review of capital cases in the control of the state’s judiciary, as it should be, rather than at the impulse or whim of a defendant.
This Bulletin recites Arkansas, Florida, Ohio and Vermont have no such provisions but both Florida and Vermont have since amended their laws to provide mandatory reviews.
Apparently the Ohio courts never required a hearing (or found one was necessary) to determine whether Brooks was competent to waive his right of appeal.