Sidney Ward v. State of Arkansas

2019 Ark. App. 516

• Court: Court of Appeals of Arkansas
• Decided: November 6, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 516

Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.05 11:32:38 DIVISION IV -05'00' No. CR-19-345 Adobe Acrobat version: 2022.001.20169 Opinion Delivered November 6, 2019 SIDNEY WARD APPELLANT APPEAL FROM THE YELL COUNTY CIRCUIT COURT, SOUTHERN V. DISTRICT [NO. 75SCR-16-4] STATE OF ARKANSAS APPELLEE HONORABLE DAVID H. MCCORMICK, JUDGE

REVERSED AND REMANDED

N. MARK KLAPPENBACH, Judge

Sidney Ward appeals from the revocation of his suspended imposition of sentence

(SIS). Ward raises two points on appeal: (1) Judge David McCormick lacked jurisdiction

to preside over the revocation due to his prior recusal; and (2) the court abused its discretion

in sentencing him to an unduly harsh sentence. We agree that Judge McCormick lacked

jurisdiction, and we reverse and remand.

In January 2016, Ward was charged in the Yell County Circuit Court with six counts

of Class B felony theft of property. In April 2016, orders of recusal were entered by Judges

Jerry Don Ramey, Terry Sullivan, and David McCormick. Because all three of the circuit

judges of the Fifteenth Judicial District had recused, the chief justice of the Arkansas

Supreme Court entered an order assigning Judge Brad Karren of the Nineteenth Judicial

District to hear the case. The order provided that “[t]his assignment includes all ancillary

proceedings which may arise in connection with said cause, and proceedings subsequent thereto shall be held at such time or times as shall be directed and ordered by Judge

Karren.”

Ward’s charges were amended several times. In June 2018, Ward pleaded guilty

before Judge Karren to one count of theft of property and one count of healthcare fraud.

He was sentenced to 240 months’ SIS and six months of house arrest.

In October 2018, the State filed a petition to revoke alleging that Ward had violated

the conditions of his house arrest. Judge Ramey entered an order for the issuance of an

arrest warrant and an order regarding pretrial release. On November 1, 2018, the chief

justice of the Supreme Court entered an order terminating Judge Karren’s assignment “[a]t

Judge Karren’s request and because a special judge is no longer needed.” Ward subsequently

filed a motion for Judge Ramey to recuse. After initially denying the motion, Judge Ramey

granted Ward’s motion for reconsideration and recused. The revocation was then set for a

hearing before Judge McCormick, and Ward filed a motion to recuse Judge

McCormick. Following arguments by counsel, Judge McCormick denied the motion to

recuse and proceeded with the hearing on the petition to revoke. Judge McCormick

revoked Ward’s SIS and sentenced him to fifteen years’ imprisonment and five years’ SIS.

Ward argues that because Judge McCormick recused from Ward’s criminal action in

2016, he lacked jurisdiction to preside over the revocation proceeding. Ward relies on

Shaffer v. State, 2018 Ark. App. 581, 566 S.W.3d 522. In Shaffer, this court addressed

whether a circuit court judge who had recused in cases pending before him on the State’s

petition to revoke thereafter had jurisdiction to hear a later petition to revoke filed in the

same cases. We held that the judge was without authority to hear the revocations in those

2 cases after his recusal, and we reversed and remanded for further proceedings. The same

result is mandated here.

The Shaffer court discussed three cases in reaching its conclusion. In Bolden v. State,

262 Ark. 718, 721, 561 S.W.2d 281, 283 (1978), the supreme court held that after

announcing his recusal, the circuit court judge “lost jurisdiction of the case and was without

authority to act further in any judicial capacity, except to make the proper transfer of the

case or take the appropriate steps for the selection of another judge.” In Kelly v. Mississippi

County Circuit Court, 374 Ark. 396, 288 S.W.3d 243 (2008) (per curiam), the supreme court

held that two circuit court judges could not reconsider their recusals because the recusals

had ended their jurisdiction. Finally, in Green v. State, 21 Ark. App. 80, 729 S.W.2d 17

(1987), this court held that for purposes of the disqualification rules of the Code of Judicial

Conduct, a revocation was the same matter in controversy as the underlying criminal

action.

Applying these cases, we hold that Judge McCormick was without authority to

preside over the revocation proceeding. He lost jurisdiction pursuant to his recusal in the

underlying criminal action, and he could not reconsider his recusal in the subsequent

revocation proceeding.

The State argues that Shaffer is distinguishable because it alleges that the chief justice’s

order terminating Special Judge Karren’s appointment in the case effectively removed the

disqualification of the circuit judges of the Fifteenth Judicial District. The State cites

Matthews v. State, 313 Ark. 327, 331, 854 S.W.2d 339, 341 (1993), for the proposition that

“a determination of disqualification will not prevent a judge from reassuming full

3 jurisdiction if the disqualification has been removed.” In Matthews, the circuit court judge

recused from a hearing on a motion for interim attorney’s fees prior to trial. The judge later

denied a motion to recuse from the case generally, noting that the landlord-tenant

relationship between the judge and defense counsel that had prompted the earlier recusal

had ended. The supreme court held that there was no abuse of discretion because the fees

issue was severable from the merits of the criminal trial and the reason for the disqualification

had disappeared by the time the recusal motion was made.

The State contends that Judge McCormick had recused from the initial prosecution

due to the demands of his trial docket, and this was no longer a concern. At the hearing on

Ward’s motion to recuse from the revocation proceeding, Judge McCormick stated that he

“would imagine” and was “assuming” that the reason for his recusal in 2016 was that he

was told a trial in the matter would take two to three weeks. Even if we relied on the

judge’s memory regarding the reason, however, Judge McCormick’s recusal in 2016 was

not a partial recusal on a severable issue. Because he recused himself from the entire case,

Matthews is clearly distinguishable. Thus, despite the order terminating Judge Karren’s

appointment, we cannot say that jurisdiction was restored with Judge McCormick. We

reverse and remand for further proceedings consistent with this opinion and do not reach

Ward’s second point on appeal.

Reversed and remanded.

HARRISON and SWITZER, JJ., agree.

Taylor Law Partners, LLP, by: Nick Mote and W.H. Taylor, for appellant.

Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.