Richard McClure v. State of Arkansas

2023 Ark. App. 174

• Court: Court of Appeals of Arkansas
• Decided: March 29, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 174 ARKANSAS COURT OF APPEALS DIVISION II No. CR-22-342

RICHARD MCCLURE Opinion Delivered March 29, 2023 APPELLANT APPEAL FROM THE CLARK COUNTY CIRCUIT COURT V. [NO. 10CR-15-11]

STATE OF ARKANSAS HONORABLE BLAKE BATSON, JUDGE APPELLEE REVERSED AND REMANDED

STEPHANIE POTTER BARRETT, Judge

Richard McClure appeals the Clark County Circuit Court’s revocation of his suspended

imposition of sentence. On appeal, he argues that Circuit Court Judge Blake Batson erred in

denying his motion for Batson to recuse. The State concedes error. We agree, and we reverse

and remand for a new revocation hearing with a different circuit judge.

In February 2015, Clark County Prosecuting Attorney Blake Batson filed a criminal

information alleging McClure had committed domestic battering in the second degree, a Class

C felony, in January 2015 by knowingly causing physical injury to a family or household member

who was less than twelve years of age. The victim was McClure’s girlfriend’s daughter, and the

State alleged McClure had spanked the child with a rhinestone-encrusted belt, leaving bruises

and abrasions on her buttocks. A no-contact order was issued between McClure and the minor

victim. McClure moved to rescind the no-contact order, attaching his girlfriend’s affidavit

stating he was not a threat to her or her children and that the continuation of the no-contact order would impose a severe burden on their family. Batson filed a response resisting McClure’s

request to rescind the no-contact order.

On April 7, 2015, McClure entered a negotiated plea of guilty to domestic battery in the

second degree. He was placed on seven years’ probation; ordered, among other requirements,

to be electronically monitored for 120 days; pay fines and costs of $2195; submit to drug-and-

alcohol testing; complete 280 hours of community service; not possess any weapons; attend

parenting classes; and maintain full-time employment. Batson was the prosecuting attorney who

signed the sentencing order.

On October 7, 2015, prosecuting attorney Dan Turner filed a motion to revoke

McClure’s probation. McClure admitted that he had violated the terms and conditions of his

probation, and in an order filed October 30, Judge Robert McCallum sentenced him to thirty

days in the Clark County jail, with credit for thirty days served, and he was returned to probation

under the same terms and conditions previously ordered. The State filed a second motion to

revoke McClure’s probation on February 24, 2016; McClure again admitted violating the terms

and conditions of his probation and was sentenced to serve sixty days in the Clark County jail,

with the first thirty days to be served consecutively and the additional thirty days to be served on

weekends. The State filed a third motion to revoke probation on June 5, 2017. On August 8,

McClure entered a negotiated plea of guilty, and he was sentenced to five years’ imprisonment

followed by a five-year suspended imposition of sentence.

On February 5, 2021, the State filed a fourth motion for revocation, through Prosecuting

Attorney Dan Turner, alleging that on September 17, 2020, McClure had been arrested for

possession of a firearm by certain persons in violation of his suspended sentence. Batson, now

2 a circuit judge in Clark County, signed the warrant for McClure’s arrest, and he also signed the

order revoking McClure’s bond for failure to appear for his revocation hearing on April 26,

2021.

After numerous continuances, McClure’s revocation hearing was scheduled for February

22, 2022, before Judge Batson. On February 14, McClure’s counsel filed a motion pursuant to

Rule 2.11(A)(6)(a) of the Arkansas Code of Judicial Conduct requesting that Judge Batson recuse

himself because he prosecuted the case for which revocation was now being sought. At the

revocation hearing, Judge Batson addressed the motion to recuse, with McClure’s attorney

explaining that the reason for the request was that Batson was the prosecuting attorney who had

filed the original second-degree domestic-battering charge against McClure. The prosecutor

asserted there was no reason to believe Judge Batson could not be fair and impartial because

McClure had pleaded guilty in 2015, and Judge Batson had simply made the offer of probation.

Judge Batson summarily denied the motion to recuse without further comment, an order was

entered to that effect, and Judge Batson proceeded to preside over the revocation hearing,

revoked McClure’s suspended sentence, and sentenced him to five years’ incarceration.

McClure asserts on appeal that Judge Batson erred in denying his recusal motion. The

decision to recuse is within a circuit court’s discretion, and a presumption of impartiality exists.

Hawkins v. State, 2018 Ark. App. 443, 558 S.W.3d 891. We review a circuit court’s denial of a

motion to recuse under an abuse-of-discretion standard. McDermott v. Cline, 2019 Ark. App.

472, 588 S.W.3d 144. A clearly erroneous interpretation of a law or rule will constitute a

manifest abuse of discretion. Id.

3 Rule 2.11(A)(6)(a) of the Arkansas Code of Judicial Conduct, the provision under which

McClure requested Judge Batson’s recusal, requires that “[a] judge shall disqualify himself or

herself in any proceeding in which the judge’s impartiality might reasonably be questioned,”

including when “[t]he judge served as a lawyer in the matter in controversy. . . .” Section 12 of

amendment 80 to the Arkansas Constitution provides that no judge shall preside in any case in

which he or she may have been counsel. Ark. Const. amend. 80, § 12.

The State concedes error, and we hold that the circuit court abused its discretion in

denying McClure’s recusal motion. Both amendment 80 and Rule 2.11(A)(6)(a) of the Arkansas

Code of Judicial Conduct explicitly state that a judge shall not preside in a case in which he or

she served as a lawyer in the matter in controversy. Judge Batson was the prosecutor who brought

the 2015 charge against McClure that was the underlying offense forming the basis for

McClure’s 2022 revocation hearing before Judge Batson. Judge Batson had clearly served as a

lawyer in the matter in controversy. This is a direct circumstance under which a judge is required

to recuse himself or herself, and Judge Batson abused his discretion in refusing to do so. We

reverse and remand for a new revocation hearing.

Reversed and remanded.

HARRISON, C.J., and MURPHY, J., agree.

Sonia Kezhaya, for appellant.

Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.