Randy William Gay v. State of Arkansas

2021 Ark. 3

• Court: Supreme Court of Arkansas
• Decided: January 21, 2021
• Status: Published

Opinion

Cite as 2021 Ark. 3 SUPREME COURT OF ARKANSAS No. CR-19-762

RANDY WILLIAM GAY Opinion Delivered: January 21, 2021

APPELLANT APPEAL FROM THE GARLAND V. COUNTY CIRCUIT COURT [NO. 26CR-11-428] STATE OF ARKANSAS APPELLEE HONORABLE JOHN HOMER WRIGHT, JUDGE

REVERSED AND REMANDED.

JOHN DAN KEMP, Chief Justice

Appellant Randy William Gay was convicted by a Garland County Circuit Court

jury of capital murder and sentenced to death. This court affirmed his conviction and

sentence. Gay v. State, 2016 Ark. 433, at 18, 506 S.W.3d 851, 863. Gay then filed a petition

for postconviction relief in the circuit court pursuant to Rule 37.5 of the Arkansas Rules of

Criminal Procedure. After a hearing, the circuit court denied the petition, and Gay now

appeals that denial. For reversal, he asserts that (1) he was denied the right to a fair and

impartial jury, (2) he received ineffective assistance of counsel for eight reasons, (3) Form 3

of the death-penalty jury instructions prohibited the jury from exercising mercy, (4) the

sentence did not meet the statutory and constitutional requirements for imposing a death

sentence, (5) the verdict forms were ambiguous, and (6) the prosecution improperly argued

lack of remorse as a nonstatutory aggravating factor. We reverse and remand to the circuit

court for entry of an order that complies with Rule 37.5(i). Rule 37.5 sets out the postconviction procedures for death-penalty cases. See Fudge

v. State, 354 Ark. 148, 151, 120 S.W.3d 600, 601 (2003). Subsection (i) provides in part

that the circuit court shall “make specific written findings of fact with respect to each factual

issue raised by the petition and specific written conclusions of law with respect to each legal

issue raised by the petition.” Ark. R. Crim. P. 37.5(i) (2020). This court has held that this

provision imposes a “more exacting duty” on the circuit court than Arkansas Rule of

Criminal Procedure 37.3(c), which governs postconviction procedures in non-death-

penalty cases. Echols v. State, 344 Ark. 513, 519, 42 S.W.3d 467, 470 (2001). Under Rule

37.5(i), the petitioner determines the issues that must be addressed by the circuit court in a

written order, while under Rule 37.3(c), the circuit court determines the issues and then

makes specific written findings of fact and conclusions of law with respect to those issues.

See Decay v. State, 2013 Ark. 185, at 2.

Here, in the last of his eight allegations of ineffective assistance of counsel raised on

appeal, Gay argues that his trial counsel was ineffective for failing to adequately investigate

and challenge the aggravating factors of the second-degree murders of Glen Gay and Jim

Kelly. From our review of the circuit court’s order denying the postconviction petition,

there are no findings of fact or conclusions of law addressing this claim. Therefore, we hold

that the circuit court failed to make specific written findings of fact and conclusions of law—

as required under Rule 37.5(i)––on Gay’s last claim of ineffective assistance of counsel.

Accordingly, we reverse and remand on this point for entry of an order containing findings

of fact and conclusions of law in compliance with Rule 37.5(i). Id.

2 Our remand is confined to the single ineffective-assistance claim discussed herein.

No new claims may be raised on remand, and all other claims raised below but not argued

on appeal are considered abandoned. Id. To avoid lengthy delay, we direct the circuit court

to complete the order within sixty days from the date the mandate is issued.

Special Justice TIM SNIVELY joins.

WOOD, J., not participating.

Fuqua Campbell, P.A., by: J. Blake Hendrix, for appellant.

Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen.; and Rachel Kemp, Sr.

Ass’t Att’y Gen., for appellee.