Jeremy Clay Thompson v. State of Arkansas

• Court: Court of Appeals of Arkansas
• Decided: May 20, 2026
• Status: Published

Opinion

Cite as 2026 Ark. App. 320 ARKANSAS COURT OF APPEALS DIVISION II No. CR-25-349

JEREMY CLAY THOMPSON Opinion Delivered May 20, 2026 APPELLANT APPEAL FROM THE SALINE COUNTY CIRCUIT COURT V. [NO. 63CR-22-637]

STATE OF ARKANSAS HONORABLE BRENT DILLON APPELLEE HOUSTON, JUDGE

AFFIRMED

BRANDON J. HARRISON, Judge

Jeremy Clay Thompson returns to this court with an appeal of the Saline County

Circuit Court’s order denying his Rule 37 petition. We affirmed his conviction on direct

appeal in Thompson v. State, 2024 Ark. App. 474, 699 S.W.3d 178. We set out the facts in

more detail there. Briefly, Thompson’s jury trial was set to begin the morning of 10 May

2023. Thompson was present as the court drew names for twelve prospective jurors. Before

voir dire began, Thompson’s appointed lawyer moved for a continuance at his request to

retain private counsel. The circuit court said no. Thompson stayed through jury selection

but left the courthouse during a brief recess before the picked jury was sworn. He could

not be found or haled back. The trial “progress[ed] to a verdict” in his absence. Ark. Code

Ann. § 16-89-103(a)(2)(A)(i) (Repl. 2005). The jury returned a guilty verdict and

recommended sentence the same day, but the court did not impose sentence until May 18.

We held that Thompson had not preserved his arguments for direct appeal. Thompson filed a Rule 37 petition alleging his trial counsel provided ineffective

assistance in two respects. He renews both arguments on appeal. The circuit court denied

the petition without a hearing; we affirm.

Arkansas Rule of Criminal Procedure 37.3(a) states that

[i]f the petition [for postconviction relief] 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.

If the court concludes from that paper record that a petitioner is entitled to no relief, no

evidentiary hearing is needed. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. But it must

provide sufficient written findings to illustrate that the petitioner’s claims are meritless. Ark.

R. Crim. P. 37.3(a). We review the decision to deny postconviction relief for clear error.

Mancia, supra.

Thompson argues counsel should have objected to holding the trial without him

because the jury had not been sworn, so jeopardy had not yet attached. See Crist v. Bretz,

437 U.S. 28 (1978). He concludes that, as a result, the circuit court did not yet have

discretion under section 103(a)(2)(A) to proceed with trial. He argues the circuit court then

violated section 103(a)(2)(B) by rendering judgment in his absence.

Under this statute, unless the death penalty is sought:

(a)(1) If the indictment is for a felony, the defendant must be present during the trial.

(2)(A)(i) If he or she escapes from custody after the trial has commenced or is present at the beginning of the trial and then causes himself or herself to be unable to appear at trial or if on bail shall absent himself or herself during the trial, the trial may either be stopped or progress to a verdict at the discretion of the court.

2 ....

(B) However, judgment shall not be rendered until the presence of the defendant is obtained.

Ark. Code Ann. § 16-89-103.

The foundation for Thompson’s first argument is his assumption that, in a jury trial,

“trial has [not] commenced” and the “beginning of the trial” has not occurred under section

103(a)(2)(A)(i) until the jury is sworn—the point when jeopardy attaches under the Fifth

Amendment. Martinez v. Illinois, 572 U.S. 833, 839 (2014). But double jeopardy is just

one constitutional right in play at a criminal trial. Other rights related to a defendant’s

presence attach sooner. Indeed, the Supreme Court of the United States has held that “[f]or

every purpose . . . involved in the requirement that the defendant shall be personally present

at the trial, where the indictment is for a felony, the trial commences at least from the time

when the work of impaneling the jury begins.” Hopt v. Utah, 110 U.S. 574, 578 (1884) (emphasis

added).

The statute is addressed to a defendant’s right to be personally present. If the point

a jury trial commences under section 103(a)(2)(A)(i) is a question of law, the answer is in

Hopt, not the double-jeopardy cases: trial commences when the work of impaneling the

jury begins. That would be curtains for Thompson’s first point on appeal. Except for the

jurors’ oath, the work of impaneling the jury was done before he left the courtroom.

If “commencement” is a fact question instead, the analysis is different, but the result

is the same. In Johnson v. State, 270 Ark. 247, 604 S.W.2d 927 (1980), our supreme court

rejected a virtually identical argument under this statute, then codified as Ark. Stat. § 43-

2101 (Repl. 1977). The court treated it as asking whether, on that record, the defendant’s

3 departure was a voluntary waiver of the right to be present. He had crawfished during a

recess between a suppression hearing in his case and his scheduled bench trial. Reviewing

for clear error in a direct appeal, the supreme court affirmed the circuit court’s finding that

“the trial had commenced at the time [the defendant] voluntarily absented himself.” Id. at

251, 604 S.W.2d at 939. It emphasized that the matter “was specifically set for trial[,]” not

a pretrial hearing, and had been set for months. Id. at 250–51, 604 S.W.2d at 928–29. The

court noted that the defendant had expressed to counsel the morning of the trial that he was

not satisfied with the judge and asked counsel to get him disqualified. Id. at 250, 604 S.W.2d

at 929. Later decisions from both appellate courts have also treated this like a fact question

about waiver. Reece v. State, 325 Ark. 465, 928 S.W.2d 334 (1996); Parrish v. State, 65 Ark.

App. 66, 984 S.W.2d 460 (1999); see also Ridling v. State, 348 Ark. 213, 72 S.W.3d 466

(2002).

On these facts, the result is the same. Thompson’s 10 May 2023 jury trial had been

set since 19 December 2022. He signed the order that set it. He showed up that day and

pressed to postpone the trial so he could retain private counsel. The circuit court said no

and picked a jury. Before the fateful recess, the court told the parties, “Once we come back

from the break, we will swear the jury. I’ll give the opening instruction and we’ll

commence.” The court asked if all would be ready. Thompson’s counsel and the

prosecutor said yes. The train was leaving the station, destination: verdict. Thompson

decided to stay on the platform and wave (and waive) it goodbye. The circuit court did

not clearly err by finding Thompson’s trial had already commenced under section

103(a)(2)(A)(i) by then.

4 Thompson’s argument that the circuit court violated the requirement that “judgment

shall not be rendered until the presence of the defendant is obtained[,]” Ark. Code Ann. §

16-89-103(a)(2)(B), requires even less discussion. After the jury that had convicted

Thompson returned its recommended sentence on May 10, the circuit court thanked and

dismissed the jurors and adjourned. It did not pronounce sentence. And even if it had, the

sentence could be modified until the judgment was filed. Bradford v. State, 351 Ark. 394,

401–02, 94 S.W.3d 904, 909 (2003). Thompson was arrested on a failure-to-appear warrant

May 16. He was present at his sentencing on May 18; the sentencing order was filed the

same day. Judgment was not “rendered” under section 103(a)(2)(b) until then.

The circuit court did what section 16-89-103 required. Both arguments Thompson

contends counsel should have made are meritless. Failure to make a meritless argument is

not ineffective assistance. Krieger v. State, 2025 Ark. App. 147, 708 S.W.3d 817.

Affirmed.

ABRAMSON and VIRDEN, JJ., agree.

Jeremy Thompson, pro se appellant.

Tim Griffin, Att’y Gen., by: James Hill, Ass’t Att’y Gen., for appellee.