Friar v. Erwin , 2014 Ark. 487 ( 2014 )


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  •                                     Cite as 
    2014 Ark. 487
    
                    SUPREME COURT OF ARKANSAS
                                           No.   CR-14-380
    
    ROBERT FRIAR                                       Opinion Delivered   November 20, 2014
                                  PETITIONER
                                                       PETITION FOR WRIT OF
    V.                                                 MANDAMUS OR, IN THE
                                                       ALTERNATIVE, WRIT OF
                                                       CERTIORARI
    HONORABLE HAROLD S. ERWIN,
    JACKSON COUNTY CIRCUIT                             [NO. CR-2013-75]
    COURT, CRIMINAL DIVISION
                     RESPONDENT                        HONORABLE HAROLD S. ERWIN,
                                                       JUDGE
    
                                                       WRIT OF MANDAMUS DENIED;
                                                       WRIT OF CERTIORARI GRANTED
                                                       IN PART; DENIED IN PART.
    
    
                                KAREN R. BAKER, Associate Justice
    
    
           The present case stems from one count of capital murder, two counts of attempted
    
    capital murder, seven counts of terroristic acts, and one count of possession of a firearm by
    
    certain persons filed against the petitioner, Robert Friar, in Jackson County Circuit Court,
    
    Arkansas, on April 17, 2013. The incident that gives rise to the charges occurred on February
    
    27, 2013. If found guilty, the State intends to seek the death penalty. On March 5, 2014,
    
    pursuant to Ark. Code Ann. § 5-2-305, the State filed a motion for an order for a mental-
    
    health evaluation of Friar. On March 10, 2014, Friar responded to the motion objecting to
    
    the request asserting that Friar was not raising “mental disease or defect as a defense, nor will
    
    [Friar] claim a lack of fitness to proceed,” but would seek “to bar the State from seeking the
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    death penalty due to his mental retardation.”1 On April 17, 2014, the circuit court, the
    
    Respondent here, held a hearing on the motion and orally ruled that the circuit court would
    
    grant the State’s motion and would enter orders for the examinations. On April 23, 2014,
    
    Friar filed a motion to reconsider the orders for mental-health evaluations of Friar. On April
    
    25, 2014, the circuit court entered two separate orders, an “Order for Fitness-To-Proceed
    
    Examination of Defendant” and an “Order for Criminal Responsibility Examination of
    
    Defendant.” From those orders, on April 29, 2014, Friar filed a petition for writ of
    
    mandamus and emergency petition for stay or, in the alternative, for expedited consideration
    
    with this court. On May 1, 2014, the circuit court responded. On May 2, 2014, we granted
    
    the stay and took the petition for writ of mandamus as a case.2 On June 13, 2014, Friar filed
    
    a petition of writ of mandamus or in the alternative a writ of certiorari directing the circuit
    
    court to rescind its orders for fitness-to-proceed and criminal-responsibility evaluations of
    
    Friar. On July 30, 2014, the circuit court responded, and Friar replied on August 13, 2014.
    
    This court has jurisdiction pursuant to Ark. Sup. Ct. R. 6-1(a) (2014) as Friar requests this
    
    court to grant an extraordinary writ.
    
           Friar presents three points in his petition for extraordinary writ: (1) the circuit court
    
    
    
           1
            On January 14, 2014, Friar filed a motion to bar the State from seeking the death
    penalty due to Friar’s mental retardation.
           2
            In his original petition, Friar only requested we issue a writ of mandamus. However,
    we have treated petitions for mandamus as petitions for writs of certiorari. Ark.
    Democrat-Gazette v. Zimmerman, 
    341 Ark. 771
    , 20 S.W.3d 301(2000)(we treat the petition
    for mandamus as one for certiorari); see Childress v. Humphrey, 
    329 Ark. 504
    , 
    950 S.W.2d 220
    (1997) (per curiam)(petition for mandamus treated as petition for certiorari).
    
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    failed and refused to follow the plain mandatory language of Ark. Code Ann. § 5-2-305
    
    (Repl. 2013) in ordering simultaneous fitness-to-proceed and criminal-responsibility
    
    examinations of Friar; (2) the circuit court failed and refused to follow the plain mandatory
    
    language of Ark. Code Ann. § 5-2-305 in ordering a fitness-to-proceed examination of Friar;
    
    and (3) the circuit court failed and refused to follow the plain mandatory language of Ark.
    
    Code Ann. § 5-2-305 in ordering a criminal-responsibility examination of Friar.
    
           Friar has requested that this court issue a writ of mandamus directing the circuit court
    
    to rescind the orders. In State ex rel. Purcell v. Nelson, we explained the function of the writ
    
    of mandamus:
    
                   The primary function of the writ of mandamus is to require an inferior court
           or tribunal to act when it has improperly failed or declined to do so. It is never applied
           to control the discretion of a trial court or tribunal. Nor can it be used to correct an
           erroneous exercise of discretion.
    
    
    246 Ark. 210
    , 215–16, 
    438 S.W.2d 33
    , 37–38 (1969) (internal citations omitted).
    
           Alternatively, Friar has requested that this court issue a writ of certiorari directing the
    
    circuit court to rescind the orders. A writ of certiorari is also extraordinary relief. “In
    
    determining its application, we will not look beyond the face of the record to ascertain the
    
    actual merits of a controversy, or to review a circuit court’s discretionary authority.” S. Farm
    
    Bureau Cas. Ins. Co. v. Parsons, 
    2013 Ark. 322
    , at 5, 
    429 S.W.3d 215
    , 218. A writ of
    
    certiorari lies to correct proceedings erroneous on the face of the record when there is no
    
    other adequate remedy; it is available to the appellate court in its exercise of superintending
    
    control over a lower court that is proceeding illegally where no other mode of review has
    
    been provided. Casement v. State, 
    318 Ark. 225
    , 
    884 S.W.2d 593
     (1994) (citing Lupo v.
    
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    Lineberger, 
    313 Ark. 315
    , 316–17, 
    855 S.W.2d 293
    , 293–94 (1993)).
    
           There are two requirements that must be satisfied in order for the court to grant a writ
    
    of certiorari. First, there can be no other adequate remedy but for the writ of certiorari. No
    
    other adequate remedy exists where the issuing court has no legal authority to support its
    
    order. Ark. Game & Fish Comm’n v. Herndon, 
    365 Ark. 180
    , 183, 
    226 S.W.3d 776
    , 779
    
    (2006). Second, the writ of certiorari lies only where (1) it is apparent on the face of the
    
    record that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) there
    
    is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the
    
    proceedings are erroneous on the face of the record. Id. Accordingly, a writ lies when the
    
    judge has acted in excess of his or her authority. See Conner v. Simes, 
    355 Ark. 422
    , 
    139 S.W.3d 476
     (2003).
    
           Additionally, as the parties have noted, Friar’s petition for extraordinary writ involves
    
    our interpretation of Ark. Code Ann. § 5-2-305. We note that the question of the correct
    
    application and interpretation of an Arkansas statute is a question of law, which this court
    
    decides de novo. Broussard v. St. Edward Mercy Health Sys., Inc., 
    2012 Ark. 14
    , 
    386 S.W.3d 385
    . “When reviewing issues of statutory interpretation, we are mindful that the first rule
    
    in considering the meaning and effect of a statute is to construe it just as it reads, giving the
    
    words their ordinary and usually accepted meaning.” Voltage Vehicles v. Ark. Motor Vehicle
    
    Comm’n, 
    2012 Ark. 386
    , at 7, 
    424 S.W.3d 281
    , 286. We construe the statute so that no word
    
    is left void, superfluous, or insignificant, and meaning and effect are given to every word in
    
    the statute if possible. Id. “When a statute is clear, we give it its plain meaning, and this court
    
    
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    will not search for legislative intent; rather, that intent will be gleaned from the plain meaning
    
    of the language used.” Id. at 7–8, 424 S.W.3d at 286. It is for this court to decide what a
    
    statute means. Chase Bank USA, N.A. v. Regions Bank, 
    2013 Ark. 129
    .
    
                                     Fitness-To-Proceed Examination
    
           With these standards in mind, we turn to the merits of Friar’s petition. First, we
    
    address Friar’s assertion that the circuit court erred in ordering the fitness-to-proceed
    
    examination because the circuit court was required to make a finding of reasonable suspicion.
    
    Friar contends that facts were not presented upon which the circuit court could make a
    
    reasonable-suspicion finding prior to ordering the examination.
    
           The circuit court’s order provides in pertinent part:
    
                   Pursuant to Ark. Code Ann. § 5- 2-305, this Court finds reasonable suspicion
           to believe that the defendant may not be fit to proceed and therefore ORDERS [an
           examination.]
    
           The applicable statute, Ark Code Ann. § 5-2-305, provides in pertinent part:
    
           (a)(1) Subject to the provisions of §§ 5-2-304 and 5-2-311, the court shall immediately
           suspend any further proceedings in a prosecution if:
           ...
                   (B)(i) Any party or the court raises the issue of the defendant’s fitness to
                   proceed.
    
                   (ii) The court shall order a fitness-to-proceed examination if it finds there is a
                   reasonable suspicion that a defendant is not fit to proceed.
    
           The circuit court contends that it did not err because the plain language of the statute
    
    authorizes the circuit court to make the reasonable suspicion finding and requires the circuit
    
    court to order the examination once a finding is made. Specifically, the circuit court asserts
    
    that the language in subsection (a)(1)(B)(i), “[a]ny party or the court raises the issue of the
    
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    defendant’s fitness to proceed,” plainly authorizes the circuit court to raise the issue. The
    
    circuit court further responds that the following subsection, (a)(1)(B)(ii), which states, “The
    
    court shall order a fitness-to-proceed examination if it finds there is a reasonable suspicion that
    
    a defendant is not fit to proceed,” means that once the court finds such suspicion, the circuit
    
    court must order the examination.
    
           With our rules of statutory construction in mind, in reviewing Ark. Code Ann. § 5-2-
    
    305, we agree with the circuit court. The plain language of subsection (a)(1)(B)(i) authorizes
    
    the circuit court to raise the issue of Friar’s fitness to proceed and requires the circuit court
    
    to order the examination once a finding of reasonable suspicion has been made. Here, the
    
    record demonstrates that the State and the circuit court both raised the issue of fitness to
    
    proceed and the circuit court’s order clearly stated that “this Court finds reasonable suspicion
    
    to believe that the defendant may not be fit to proceed.” Accordingly, the reasonable-
    
    suspicion finding was made, and the examination ordered. Therefore, we deny Friar’s request
    
    for this court to rescind that order on this basis.
    
                                  Criminal-Responsibility Examination
    
           We now turn to Friar’s next basis for extraordinary relief. Friar asserts that the circuit
    
    court erred in ordering a criminal-responsibility examination of Friar. The circuit court’s
    
    “Order for Criminal Responsibility Examination of Defendant” states in pertinent part,
    
                  The Defendant filed a Motion to Bar the State from Seeking the Death Penalty
           due to the Defendant’s Mental Retardation on January 22, 2014.
    
                   The definition of “mental retardation” in A.C.A.§ 5-4-618( a)( 1)( A) is set out
           as follows:
    
    
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                  “Significantly subaverage general intellectual functioning accompanied by a
                  significant deficit or impairment in adaptive functioning manifest in the
                  development period, but no later than age eighteen( 18) years of age.”
    
                  This is essentially the same as the definition of “mental disease or defect”
           contained in A.C.A §5-2-301(6)(A)(ii):
    
                  “A state of significantly subaverage general intellectual functioning existing
                  concurrently with a defect of adaptive behavior that developed during the
                  developmental period.”
    
                 Therefore the issue of Mental Disease or Defect has been raised by the
           Defendant’s Motion to Bar the State from Seeking the Death Penalty due to the
           Defendant’s Mental Retardation.
    
                 Pursuant to Ark. Code Ann. § 5-2-305, the State of Arkansas has petitioned
           the Court for a criminal responsibility examination and opinion.
    
           It is therefore ORDERED[.]
    
           Two statutes are applicable to the criminal-responsibility order at issue, Ark. Code
    
    Ann. §§ 5-2-304 and 5-2-305. First, Ark. Code Ann. § 5-2-304, “Notice of defense,”
    
    provides in pertinent part,
    
           (a) When a defendant intends to raise mental disease or defect as a defense in a
           prosecution or put in issue his or her fitness to proceed, the defendant shall notify the
           prosecutor and the court at the earliest practicable time.
    
    
    Next, Ark. Code Ann. § 5-2-305, “Mental health examination of defendant,” provides in
    
    pertinent part:
    
           (a)(1) Subject to the provisions of §§ 5-2-304 and 5-2-311, the court shall immediately
           suspend any further proceedings in a prosecution if:
    
                  (A)(i) A defendant charged in circuit court files notice that he or she intends to
                  rely upon the defense of mental disease or defect.
    
                  (ii) After the notice of intent to raise the defense of not guilty for reason of mental disease
    
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                   or defect is filed, any party may petition the court for a criminal responsibility
                   examination and opinion.
    
    Id. (emphasis added).
    
           Relying on the plain language of Ark. Code Ann. § 5-2-305(a)(1)(A)(ii), Friar asserts
    
    that the circuit court is without authority to order the criminal-responsibility examination
    
    because Friar must give notice of the intent to raise the defense of not guilty for reason of
    
    mental disease or defect. Once notice is filed, then and only then can an examination be
    
    ordered. Friar further contends that the circuit court does not have authority to raise the issue
    
    of criminal responsibility on its own nor can any party raise the issue.
    
           The circuit court responds that it was justified in its decision to order the criminal
    
    responsibility examination because the notice of mental-retardation defense in Ark. Code
    
    Ann. § 5-4-618 necessarily includes notice of a mental disease or defect defense for purposes
    
    of the required notice. Friar replies that notice that Friar intends to claim that he is ineligible
    
    for the death penalty due to his low IQ and adaptive skills under Ark. Code Ann. § 5-4-618
    
    does not effectively invoke a not guilty plea due to mental disease or defect under Ark. Code
    
    Ann. § 5-2-305.
    
           The plain language of Ark. Code Ann. § 5-2-305 provides that (1) after a defendant
    
    is charged in circuit court, (2) if the defendant files notice of intent to raise the defense of not
    
    guilty for reason of mental disease or defect, then (3) any party may petition the court for the
    
    defendant to submit to a criminal-responsibility examination and opinion. Ark. Code Ann.
    
    § 5-2-305 plainly and unambiguously states that “[a]fter the notice of intent to raise the defense of
    
    not guilty for reason of mental disease or defect is filed, any party may petition the court for a
    
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    criminal responsibility examination and opinion.”
    
           Here, the record demonstrates that, at this juncture, Friar has not filed a “notice of
    
    intent to raise the defense of not guilty for reason of mental disease or defect.” Therefore, the
    
    circuit court has acted without jurisdiction in ordering Friar to submit to a criminal
    
    responsibility examination. Having found that the circuit court erred, we move to Friar’s
    
    request to issue a writ of mandamus or in the alternative a writ of certiorari. First, a writ of
    
    mandamus is not warranted as the circuit court has not improperly failed or declined to act
    
    when required. Satterfield v. Fewell, 
    202 Ark. 67
    , 
    149 S.W.2d 949
     (1949); Thompson v. Foote,
    
    
    199 Ark. 474
    , 
    134 S.W.2d 11
     (1939); Hammond v. Kirby, 
    233 Ark. 560
    , 
    345 S.W.2d 910
    
    (1961). However, Friar has met the elements for this court to issue a writ of certiorari. First,
    
    Friar has no other adequate remedy. No other adequate remedy exists where the issuing court
    
    has no legal authority to support its order. Ark. Game & Fish Comm’n v. Herndon, 
    365 Ark. 180
    , 183, 
    226 S.W.3d 776
    , 779 (2006). Second, as discussed above, the circuit court has
    
    acted in excess of its authority in issuing the criminal-responsibility-examination order.
    
    Therefore, we agree that an extraordinary writ is appropriate under these circumstances and
    
    grant the writ of certiorari and rescind the circuit court’s criminal-responsibility-examination
    
    order. Finally, as we have granted the writ on the criminal responsibility order, we need not
    
    reach Friar’s argument regarding simultaneous examinations because the issue is moot.
    
           Writ of mandamus denied; writ of certiorari granted in part; denied in part.
           HANNAH, C.J., not participating.
           Teri Chambers, Arkansas Public Defender Commission, for petitioner.
           Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for respondent.
    
    
    
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