Digitally signed by Susan P. Williams Reason: I attest to the accuracy Cite as 2019 Ark. 373 and integrity of this document SUPREME COURT OF ARKANSAS Date: Nos. CR-87-16 & CR-87-45 2021.07.16 14:48:58 -05'00' Opinion Delivered December 12, 2019 RICK LOGAN PRO SE PETITION TO REINVEST APPELLANT JURISDICTION IN THE TRIAL COURT TO CONSIDER A V. PETITION FOR POST-CONVICTION RELIEF AND MOTION FOR STATE OF ARKANSAS PERMISSION TO REPLY TO THE RESPONDENT’S RESPONSE APPELLEE BENTON COUNTY CIRCUIT COURT [NOS. 04CR-86-100 & 04CR-86-125]
MOTION DENIED; PETITION TO ALLOW COLLATERAL ATTACK ON THE JUDGMENT OR ALTERNATIVELY TO RECALL THE MANDATE DENIED.
JOSEPHINE LINKER HART, Justice
Petitioner Rick Logan seeks permission to proceed in the trial court with a petition
under Arkansas Rule of Criminal Procedure 37.1 (1989). He argues that he is entitled to
collaterally attack his conviction because the Arkansas statute under which his arrest warrants
were issued was subsequently declared unconstitutional by Fairchild v. Lockhart, 675 F. Supp.
469 (1987), and the Arkansas Supreme Court failed to address the issue pursuant to Arkansas
Statutes Annotated sections 43-2725 to 43-2725.2, currently codified at Arkansas Code
Annotated section 16-91-113.1 Alternatively, Logan requests that this court recall the mandate
1 Section 16-91-113 provides: (a) The Supreme Court need only review those matters briefed and argued by the appellant, except that where either a sentence for life imprisonment or death for his two convictions. In addition to Logan’s petition, he has tendered a response to the State’s
response and filed a motion asking this court to allow him to file it. We deny Logan’s motion
to respond to the State’s response and deny Logan’s petition.
In 1989, this court affirmed Logan’s two convictions. Logan v. State, 300 Ark. 35, 776
S.W.2d 341 (1989) (single count of rape and a life sentence) and Logan v. State, 299 Ark. 266,
773 S.W.2d 413 (1989) (affirming six of seven counts of rape and reducing one conviction to
third-degree carnal abuse, with consecutive forty-year sentences). During the pendency of
Logan’s direct appeals, the Federal District Court for the Eastern District of Arkansas declared
has been imposed the Supreme Court shall review all errors prejudicial to the rights of the appellant.
(b)(1) It shall not be necessary to file a motion for new trial to obtain review of any matter urged for review on appeal.
(2) If a motion for new trial is submitted to the trial court, on appeal, the appellant shall not be restricted to a consideration of matters assigned therein.
(3) Formal exceptions to rulings or orders of the trial court are unnecessary; but for all purposes for which an exception has previously been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he or she desires the court to take or his or her objections to the action of the court and his or her grounds therefor. If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him or her.
(c)(1) A conviction shall be reversed and a new trial ordered where the Supreme Court finds that the conviction is contrary to the Arkansas Constitution or the laws of Arkansas, or for any reason determines that the appellant did not have a fair trial.
(2) Where appropriate, the Supreme Court shall reverse the conviction and order the appellant discharged.
(3) In all other cases, the conviction must be affirmed, but the sentence of the appellant may be reduced if it is deemed excessive.
2 unconstitutional the statute under which Logan’s arrest warrant was issued. This issue was not
addressed in either of Logan’s direct appeals, one of which involved a life sentence.
Before July 1, 1989, Rule 37.2 of the Arkansas Rule of Criminal Procedure required a
petitioner that had directly appealed a conviction to petition this court for permission to file a
Rule 37 petition. Ark. R. Crim. P. 37.2 (1986). Furthermore, such a petition had to be filed
within three years of the date of commitment, unless the grounds for relief would render the
judgment of conviction void. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985).
We first consider Logan’s motion to file his tendered response to the State’s response.
We note that our rules do not expressly contemplate the filing of a response to a response in
motion practice before this court. However, generally with regard to responses, our rules
provide that all responses must be filed within ten calendar days. Ark. Sup. Ct. R. 2-1(d). The
State filed its response on July 22, 2019, and Logan did not tender his response until August 8,
2019. Logan has not persuaded us that he should be exempted from the time requirement of
Rule 2-1(d). Accordingly, we decline to accept it.
Turning to the merits of Logan’s petition, we conclude that his reliance on Fairchild is
unavailing. As the State notes, this court in Davis v. State, 293 Ark. 472, 474, 739 S.W.2d 150,
151 (1987), stated that Fairchild found that an arrest warrant must be issued by a detached, neutral
officer who makes an independent determination of probable cause and, thus, an Arkansas
statute that allowed the clerk of the court to issue an arrest warrant based on a supporting
affidavit was unconstitutional. However, the Fairchild analysis further requires an assessment of
whether the affidavit accompanying the warrant supported a finding of probable cause or
whether an officer could nonetheless rely on the clerk’s determination in accordance with a
good-faith exception as articulated in United States v. Leon, 468 U.S. 897 (1984).
3 More importantly for our analysis, even if it was found that Logan’s arrest was illegal, it
does not follow that his charges should be dismissed. State v. Block, 270 Ark. 671, 672, 606
S.W.2d 362, 362 (1981). The Block court reversed a circuit court’s dismissal of charges when it
was shown that the defendant was arrested without a warrant. Id. It called the proposition that
a criminal “should go scot free” based on the lack of an arrest warrant “unthinkable[.]” 270
Ark. at 672, 606 S.W.2d at 362. While the Block court recognized that suppression of evidence
seized pursuant to an illegal warrantless arrest was a possible consequence, Logan has not alleged
that was required in his case. We hold that the error alleged by Logan is not a ground so basic
that the judgment is a complete nullity. Travis, supra.
Logan further alleges that, even if he is not entitled to relief under Rule 37, he is entitled
to some form of relief for the constitutional violation. He contends that, in the case in which a
life sentence was imposed, this court should have identified the defective warrant in its
mandatory review of “all errors prejudicial to the appellant” and that this court is bound to
recall its mandate because he did not receive a fair trial, he received a life sentence, and there
are extraordinary circumstances because no objection at trial was possible when the federal
district court had not yet found the warrant procedures in Arkansas to be unconstitutional.
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Digitally signed by Susan P. Williams Reason: I attest to the accuracy Cite as 2019 Ark. 373 and integrity of this document SUPREME COURT OF ARKANSAS Date: Nos. CR-87-16 & CR-87-45 2021.07.16 14:48:58 -05'00' Opinion Delivered December 12, 2019 RICK LOGAN PRO SE PETITION TO REINVEST APPELLANT JURISDICTION IN THE TRIAL COURT TO CONSIDER A V. PETITION FOR POST-CONVICTION RELIEF AND MOTION FOR STATE OF ARKANSAS PERMISSION TO REPLY TO THE RESPONDENT’S RESPONSE APPELLEE BENTON COUNTY CIRCUIT COURT [NOS. 04CR-86-100 & 04CR-86-125]
MOTION DENIED; PETITION TO ALLOW COLLATERAL ATTACK ON THE JUDGMENT OR ALTERNATIVELY TO RECALL THE MANDATE DENIED.
JOSEPHINE LINKER HART, Justice
Petitioner Rick Logan seeks permission to proceed in the trial court with a petition
under Arkansas Rule of Criminal Procedure 37.1 (1989). He argues that he is entitled to
collaterally attack his conviction because the Arkansas statute under which his arrest warrants
were issued was subsequently declared unconstitutional by Fairchild v. Lockhart, 675 F. Supp.
469 (1987), and the Arkansas Supreme Court failed to address the issue pursuant to Arkansas
Statutes Annotated sections 43-2725 to 43-2725.2, currently codified at Arkansas Code
Annotated section 16-91-113.1 Alternatively, Logan requests that this court recall the mandate
1 Section 16-91-113 provides: (a) The Supreme Court need only review those matters briefed and argued by the appellant, except that where either a sentence for life imprisonment or death for his two convictions. In addition to Logan’s petition, he has tendered a response to the State’s
response and filed a motion asking this court to allow him to file it. We deny Logan’s motion
to respond to the State’s response and deny Logan’s petition.
In 1989, this court affirmed Logan’s two convictions. Logan v. State, 300 Ark. 35, 776
S.W.2d 341 (1989) (single count of rape and a life sentence) and Logan v. State, 299 Ark. 266,
773 S.W.2d 413 (1989) (affirming six of seven counts of rape and reducing one conviction to
third-degree carnal abuse, with consecutive forty-year sentences). During the pendency of
Logan’s direct appeals, the Federal District Court for the Eastern District of Arkansas declared
has been imposed the Supreme Court shall review all errors prejudicial to the rights of the appellant.
(b)(1) It shall not be necessary to file a motion for new trial to obtain review of any matter urged for review on appeal.
(2) If a motion for new trial is submitted to the trial court, on appeal, the appellant shall not be restricted to a consideration of matters assigned therein.
(3) Formal exceptions to rulings or orders of the trial court are unnecessary; but for all purposes for which an exception has previously been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he or she desires the court to take or his or her objections to the action of the court and his or her grounds therefor. If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him or her.
(c)(1) A conviction shall be reversed and a new trial ordered where the Supreme Court finds that the conviction is contrary to the Arkansas Constitution or the laws of Arkansas, or for any reason determines that the appellant did not have a fair trial.
(2) Where appropriate, the Supreme Court shall reverse the conviction and order the appellant discharged.
(3) In all other cases, the conviction must be affirmed, but the sentence of the appellant may be reduced if it is deemed excessive.
2 unconstitutional the statute under which Logan’s arrest warrant was issued. This issue was not
addressed in either of Logan’s direct appeals, one of which involved a life sentence.
Before July 1, 1989, Rule 37.2 of the Arkansas Rule of Criminal Procedure required a
petitioner that had directly appealed a conviction to petition this court for permission to file a
Rule 37 petition. Ark. R. Crim. P. 37.2 (1986). Furthermore, such a petition had to be filed
within three years of the date of commitment, unless the grounds for relief would render the
judgment of conviction void. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985).
We first consider Logan’s motion to file his tendered response to the State’s response.
We note that our rules do not expressly contemplate the filing of a response to a response in
motion practice before this court. However, generally with regard to responses, our rules
provide that all responses must be filed within ten calendar days. Ark. Sup. Ct. R. 2-1(d). The
State filed its response on July 22, 2019, and Logan did not tender his response until August 8,
2019. Logan has not persuaded us that he should be exempted from the time requirement of
Rule 2-1(d). Accordingly, we decline to accept it.
Turning to the merits of Logan’s petition, we conclude that his reliance on Fairchild is
unavailing. As the State notes, this court in Davis v. State, 293 Ark. 472, 474, 739 S.W.2d 150,
151 (1987), stated that Fairchild found that an arrest warrant must be issued by a detached, neutral
officer who makes an independent determination of probable cause and, thus, an Arkansas
statute that allowed the clerk of the court to issue an arrest warrant based on a supporting
affidavit was unconstitutional. However, the Fairchild analysis further requires an assessment of
whether the affidavit accompanying the warrant supported a finding of probable cause or
whether an officer could nonetheless rely on the clerk’s determination in accordance with a
good-faith exception as articulated in United States v. Leon, 468 U.S. 897 (1984).
3 More importantly for our analysis, even if it was found that Logan’s arrest was illegal, it
does not follow that his charges should be dismissed. State v. Block, 270 Ark. 671, 672, 606
S.W.2d 362, 362 (1981). The Block court reversed a circuit court’s dismissal of charges when it
was shown that the defendant was arrested without a warrant. Id. It called the proposition that
a criminal “should go scot free” based on the lack of an arrest warrant “unthinkable[.]” 270
Ark. at 672, 606 S.W.2d at 362. While the Block court recognized that suppression of evidence
seized pursuant to an illegal warrantless arrest was a possible consequence, Logan has not alleged
that was required in his case. We hold that the error alleged by Logan is not a ground so basic
that the judgment is a complete nullity. Travis, supra.
Logan further alleges that, even if he is not entitled to relief under Rule 37, he is entitled
to some form of relief for the constitutional violation. He contends that, in the case in which a
life sentence was imposed, this court should have identified the defective warrant in its
mandatory review of “all errors prejudicial to the appellant” and that this court is bound to
recall its mandate because he did not receive a fair trial, he received a life sentence, and there
are extraordinary circumstances because no objection at trial was possible when the federal
district court had not yet found the warrant procedures in Arkansas to be unconstitutional.
We hold that Logan fails to establish any basis for this court to recall its mandate. We
will recall the mandate only in the most extraordinary circumstances. Key v. State, 2019 Ark.
202, 575 S.W.3d 554. For example, to establish the extraordinary circumstances required, we
consider (1) the presence of a defect in the appellate process, (2) whether federal court
proceedings have been dismissed because of an unexhausted state court claim, and (3) whether
this is a death-penalty case requiring heightened scrutiny. Id. A defect in the appellate process
is an error alleged to have been made by this court while reviewing a case in which the death
4 sentence was imposed. Id. Logan’s allegations fail to establish any such error. Accordingly, we
deny Logan’s request to recall the mandate.
Motion denied; petition to allow collateral attack on the judgment or alternatively to
recall the mandate denied.
WOOD and WOMACK, JJ., concur.
RHONDA K. WOOD, Justice, concurring. I concur because my analysis differs from
the majority’s. I agree Logan does not state a claim for relief.
The Rules in effect at the time of Logan’s convictions provide that a petition filed under
the Rule is untimely if not filed within three years of the date of commitment unless the
petitioner states some ground for relief which, if found meritorious, would render the judgment
of conviction absolutely void. Ark. R. Crim. P. 37.2(c); Munnerlyn v. State, 2018 Ark. 161, 545
S.W.3d 207. Logan, who filed the instant petition more than thirty years after his convictions,
alleges that the judgments are void.
Logan’s claim for relief is based on the allegation that the arrest warrant was defective in
his cases as there was no review by a magistrate. First, he contends that his attorneys were either
ineffective or could not have known to raise the argument during the pendency of his direct
appeal. Logan points to a federal district court case and newspaper articles to support his
contention that the statutes under which the warrant was issued had only been held
unconstitutional during the pendency of his direct appeals.
Although Logan appears to believe that his attorneys were unable to raise the warrant
issue, if it was in fact deficient, he is misinformed concerning the timing of the law in Arkansas.
In 1980, this court held that such warrants were defective when not issued by a judicial officer–
–well before Logan’s trial and appeal. Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980). To
5 the extent that Logan raises an ineffective-assistance-of-counsel claim in that regard, the issue
could have been addressed in a timely Rule 37.1 petition.
Logan’s second argument is that even if he is not entitled to relief under Rule 37, he is
entitled to some other form of relief for an alleged constitutional violation. He contends that,
in the case in which a life sentence was imposed, this court should have identified the defective
warrant in its mandatory review of “all errors prejudicial to the appellant” and corrected the
error. As such, this court is bound to recall its mandate because he did not receive a fair trial.
Logan fails to establish any basis for this court to recall its mandate. Logan would have
this court recall the mandate in order to correct what he characterizes as an error in its previous
order on appeal. We will recall the mandate only in the most extraordinary circumstances. Key
v. State, 2019 Ark. 202, 575 S.W.3d 554. Such an error is distinguished from one that should
have been raised to the trial court or one within our independent review under Arkansas
Supreme Court Rule 4-3. Id.
For these reasons, I concur.
WOMACK, J., joins.