                                    Cite as 2016 Ark. 287

                SUPREME COURT OF ARKANSAS
                                        No.   CR-15-983

JASON CARROLL NEAL                                Opinion Delivered   June 30, 2016
                               APPELLANT
                                                  APPEAL FROM THE SALINE
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. 63CR-14-232A]

STATE OF ARKANSAS                                 HONORABLE BOBBY D.
                                  APPELLEE        MCCALLISTER, JUDGE

                                                  REVERSED AND REMANDED.


                            KAREN R. BAKER, Associate Justice


       Appellant Jason Carroll Neal appeals the order of the Saline County Circuit Court

denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of

Criminal Procedure (2015). On appeal, Neal argues that the circuit court erred in finding that

(1) Neal was not deprived of due process upon his expulsion from the drug-court program

without a hearing; and (2) Neal did not receive ineffective assistance of counsel. We reverse

the circuit court’s order denying Neal’s petition for postconviction relief and remand for a

hearing consistent with this opinion.

       Neal entered a plea of guilty to breaking and entering, possession of firearms by certain

persons, and possession of drug paraphernalia.1 The guilty-plea statement states that the


       1
         The guilty-plea statement does not contain a file-mark stamp; however, it is dated
August 4, 2014. Additionally, despite Neal’s simultaneous plea of guilty to all three charges,
the possession-of-firearms and possession-of-drug-paraphernalia charges arise from a separate
case filed in Saline County Circuit Court, 63CR-14-465.
                                   Cite as 2016 Ark. 287

maximum punishment for each of the charges is as follows: twenty years’ imprisonment for

the possession-of-firearms charge, six years’ imprisonment for the possession-of-drug-

paraphernalia charge, and six years’ imprisonment for the breaking-and-entering charge. We

note that, despite these maximum sentences equaling 384 months’ imprisonment, the guilty-

plea statement contained a provision stating, “I understand that the negotiated plea I am

entering includes a recommended sentence of: 420 month’s ADC.”2

       Also, at the time of the entry of the guilty plea, Neal executed the “Saline County

Adult Drug Court Admission Form and Order CR-14-465 & CR-14-232A.” The drug-

court admission form contained an express waiver of rights, including a waiver of Neal’s right

to “any later Rule 37 Motions claiming ineffective assistance of counsel or any other

constitutional grounds for release.” The form also stated, “I understand the Plea Agreement

I am signing below is approximately 25% longer than would be available if I were not a Drug



       2
       During oral arguments, the State argued that the guilty-plea statement contained a
mere scrivener’s error because Neal was charged as a habitual offender and thus the
recommended sentence of 420 months’ imprisonment was correct. Noticeably absent from
the record are felony informations or charging instruments for any of the three charges.
Thus, we are unable to determine whether Neal was, in fact, charged as a habitual offender.

         Further, we note that Arkansas Code Annotated section 5-4-104(a) (Supp. 2015)
provides that “[n]o defendant convicted of an offense shall be sentenced otherwise than in
accordance with this chapter.” We have held, since the enactment of our criminal code, that
sentencing shall not be other than in accordance with the statute in effect at the time of the
commission of the crime. State v. Joslin, 364 Ark. 545, 222 S.W.3d 168, (2006) (citing Taylor
v. State, 354 Ark. 450, 125 S.W.3d 174 (2003); State v. Murphy, 315 Ark. 68, 864 S.W.2d 842
(1993)). Where the law does not authorize the particular sentence pronounced by a trial
court, the sentence is unauthorized and illegal, and the case must be reversed and remanded.
Joslin, supra (citing Taylor, supra; State v. Stephenson, 340 Ark. 229, 231, 9 S.W.3d 495, 496
(2000)).

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Court Participant. I hereby agree to the terms of the Judgment and Commitment Order, and

I affirmatively state: I understand the Judgment and Commitment will be entered and the

sentence will begin immediately if I am expelled from Drug Court for any reason. I

understand the Judgment and Commitment is held in Abeyance and not dated or filed with

the Circuit Clerk unless I am expelled from Drug Court.” Further, the form stated that Neal

waived his “right to have legal notice, a hearing and/or any other rights I may have regarding

due process prior to Drug Court sanctions (which sanctions may include but are not limited

to: . . . expulsion from Drug Court and execution of original sentence).”

       On April 6, 2015, Neal was sentenced to 420 months’ imprisonment for his alleged

violation of the drug-court program. However, there is no record of the program rules or

a hearing on the alleged violation although Rule 24.7 of the Arkansas Rules of the Criminal

Procedure and Administrative Order Number 4 both require verbatim transcripts of the

proceedings. The entirety of the April 6, 2015 sentencing proceeding is as follows:

       COURT:        Mr. Neal, in being sent out of the 90-day program you basically have
                     given us no choice on this one. Um, at this point in time, we’re
                     imposing your sentence. It’s 420 months in the Arkansas Department
                     of Corrections.

       NEAL:         You Honor, can I ask you a question?

       COURT:        Sir?

       NEAL:         Can I ask a question?

       COURT:        Sure.

       NEAL:         When I - what I got wrote up for initially was dropped. They - then
                     they in turn came and wrote me up, changed the write-up to a CR17.
                     The lieutenant told me, said, Look, Neal, I done investigated it. We

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know y’all was horse-playing, but they’re going to charge you with
something that’s cardinal rule so that you have to do some hold time.
I said, Okay. I understand. He said, just do the hold time and go back.
I said okay.

I go to court, and in that court proceeding it’s just like this one.
They’ve got - they push the tape recorder. It’s being recorded,
everything. They read my charge. They let me say something. I
stepped out. I come back in and they said they’re finding me guilty of
the CR 17. I said okay. They said, do you want to say anything that
might cause us to give you - I said, yes. I said, I’ve been here 60 days.
Y’all interviewed me last week to be number two in charge. I didn’t
get a write-up or nothing the whole time I was there. Me and Jamie -
Jamie’s the coordinator. They interviewed me to be assistant
coordinator. That would never have happened if I’d been cutting up
like - you know that I mean?

I - I did - they never had to tell me to tuck my shirt in, shave or
nothing. I did everything I was supposed to do. Yes, on the Friday
night at 8:00 getting out of the shower about eight dudes in there,
locker room, horse-playing. We were cutting up. And I was found
guilty of that. I admit that. I did - and I was found guilty of
horse-playing. And I admit that. I did do that. We were just cutting
up.

They found me guilty of the CR17, but on the tape recording they -
one of the options was to kick me out of the program. They said, this
is what can happen if you’re found guilty. I said - then they read it off.
This is all recorded. I said, okay.

When they brought me back in and said they found me guilty, they
said, 15 days in the hole and loss of privilege meaning I couldn’t go in
the commissary or nothing else when I got out. And that’s on the tape
recording. At that time, I went and I did 13 days of it. Ms. Gorham
showed up to pick me up.

On - on the recording - if they were gonna - if they would have kicked
me out of the program for what I did, they would have had to have said
that in the court proceeding, that - what they - they found me guilty
and this is what they were doing. Your Honor, I promise you, they
gave me 15 days in the hole and that was it. This is on the tape. This
is all on recording. I’m not - I didn’t get - I went and did my - sat in

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                     the hole. I didn’t have nothing but a Bible. I sat right there and read
                     it. The only time I seen anybody was when they brought me a tray
                     other than that. That 15 days was all they wanted. They did not tell
                     me I was kicked out.

                     Now, what happened from the time that I got - went into the hole til
                     the time Ms. Gorham showed up to get me - when they told me to
                     dress out, I thought I was going back and I had two days left. In the
                     court proceeding - I’m just asking you this: if they say this is what we’re
                     - this what your sentence is, is that not what it is? Or -

       COURT:        You’re - and I’m going to answer it and we’re gonna be done in about
                     two seconds. The process of ADC punishment and ADC inter-
                     workings is not something I have any control over. As I understand it,
                     we were told - and there’s no question about it. We were told to come
                     get you.

                     It has - again, as I understand it, it has to do not only with that incident,
                     but in general, Jason, you’re not fit for this program because you don’t
                     want to - you don’t want to do the things to get through this program
                     that you have to do. And you end up with your negativism pulling
                     everyone down. And we’re done. You can take him.

       NEAL:         Well, I never had a chance to being with -

       COURT:        Mr. Mallory -

       NEAL:         - if that’s the - if that’s the case.

       COURT:        Mr. Mallory -

       NEAL:         You did exactly what I said y’all were gonna do. You gave me 35 years
                     so that you could snow me in. I hope you’re happy. When God judges
                     you, I hope you get the same thing.

       On April 22, 2015, Neal filed a motion to set aside the judgment and commitment.

However, the record demonstrates that the circuit court failed to act on this motion. On May

28, 2015, Neal filed a petition for postconviction relief pursuant to Rule 37.1 of the Arkansas

Rules of Criminal Procedure. In his petition, Neal argued that the procedure established by

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the court for participation in the drug-court program is in violation of his right to due process

because it allows for expulsion from the drug-court program without notice and a hearing and

that he received ineffective assistance of counsel.

          On August 20, 2015, the circuit court entered an order denying Neal’s petition for

postconviction relief without a hearing. On September 9, 2015, Neal filed his notice of

appeal.

          We will reverse the circuit court’s decision granting or denying postconviction relief

only when that decision is clearly erroneous. Williams v. State, 369 Ark. 104, 251 S.W.3d 290

(2007). “A finding is clearly erroneous when, although there is evidence to support it, the

appellate court, after reviewing the entire evidence, is left with the definite and firm

conviction that a mistake has been committed.” Id. at 292 (quoting Howard v. State, 367 Ark.

18, 26, 238 S.W.3d 24, 31 (2006)).

          On appeal, Neal argues that the circuit court erred in denying his petition for

postconviction relief because his right to due process was violated when he was expelled from

the drug-court program without a hearing, and these due-process rights were so fundamental

that they could not be waived. To support his argument, Neal cites to Tornavacca v. State,

2012 Ark. 224, 408 S.W.3d 727. In response, the State argues that we should overrule

Tornavacca because it permits a petitioner to raise due-process claims for the first time in a

petition for Rule 37 relief. For the reasons that follow, we decline the State’s invitation to

overrule Tornavacca but instead extend its protections to the present case.

          In Tornavacca, as in the present case, Tornavacca claimed a right to due process when


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he was subsequently expelled from the drug-court program. In holding that Tornavacca’s

due-process claim qualified as an issue that may be raised in a Rule 37 proceeding, we

explained,

               Moreover, “for many years, Arkansas has allowed collateral attacks upon a final
       conviction and appeal by means of a postconviction challenge to determine whether
       a sentence was void because it violated fundamental rights guaranteed by the
       Constitutions or laws of Arkansas or the United States.” Buckley v. State, 349 Ark. 53,
       66, 76 S.W.3d 825, 833 (2002) (citing Davis v. State, 345 Ark. 161, 44 S.W.3d 726
       (2001) (holding that Rule 37 does not permit a petitioner to raise questions that might
       have been raised at the trial or on the record on direct appeal, unless they are so
       fundamental as to render the judgment void and open to collateral attack)). We have
       acknowledged that some issues are “so fundamental as to void the judgment
       absolutely” and that such issues will not be waived for purposes of postconviction relief
       by the failure to raise them at trial. Rowbottom v. State, 341 Ark. 33, 36, 13 S.W.3d
       904, 906 (2000) (quoting Finley v. State, 295 Ark. 357, 363, 748 S.W.2d 643, 647
       (1988)). We have applied this exception to claims of double jeopardy in Rowbottom,
       and the denial of a trial by a twelve-member jury in Collins v. State, 324 Ark. 322, 920
       S.W.2d 846 (1996). Similarly, this court made it clear in Swagger v. State, 227 Ark. 45,
       296 S.W.2d 204 (1956), that a judgment is void where there is an absence of due
       process. See also Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965) (holding that the
       failure to observe the constitutional safeguards of due process renders a criminal
       conviction illegal and void).

2012 Ark. 224, at 12–13, 408 S.W.3d at 736.

       Next, the State argued that Tornavacca had waived his rights of due process in the

drug-court program when he entered the guilty pleas. We stated that “[i]t is true that a

criminal defendant may knowingly and voluntarily waive many of the most fundamental

protections afforded by the Constitution.” Id. at 13, 408 S.W.3d at 737 (citing Echols v.

State, 354 Ark. 414, 125 S.W.3d 153 (2003) (Imber, J., concurring) (citing United States v.

Mezzanatto, 513 U.S. 196 (1995))). We held that Tornvacca’s waiver was a waiver only of

his right to trial on the underlying charges, and his waiver did not include his right to due


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process prior to being expelled from the drug-court program. Id. at 13–14, 408 S.W. 3d at

737. However, we ultimately affirmed the circuit court because Tornavacca received a full

hearing on this claim that he was improperly expelled from the drug-court program during

his Rule 37 proceedings. Id. at 15, 408 S.W.3d at 737.

       Here, unlike Tornavacca, Neal’s Rule 37 claims were denied without a hearing. Thus,

the issue of whether a defendant can prospectively waive due process is squarely before us.

Although this is an issue of first impression for this court, we find the Supreme Court of New

Hamphsire’s decision in State v. LaPlaca, 27 A.3d 719 (N.H. 2011) helpful to our analysis.

In LaPlaca, the court held that a defendant could not execute a knowing, voluntary waiver

of his right to a hearing on the imposition of sentence following removal from a drug-court

program because the defendant did not know the accusations regarding the termination of the

program at the time the waiver was executed. Further, the court explained that it was

impossible for the defendant to have full knowledge of the allegations against him when the

facts giving rise to those allegations had yet to occur. Id. at 725. “The defendant’s advance

waiver of the right to any and all hearings was akin to pleading guilty to any future allegations

brought against him because the effect of such a waiver eliminated the obligation of the State

to prove the allegations against him, and deprived him of the opportunity to contest them.”

Id. Accordingly, the court held,

               It would subvert the requirements of due process to uphold the defendant’s
       prospective waiver of his right to a hearing. When the defendant faces the potential
       imposition of a full sentence of incarceration, an advance waiver of any and all hearing
       rights presents a serious risk of an erroneous deprivation of the defendant’s significant
       liberty interest. To allow this course in the present case would be inconsistent with the
       community’s sense of justice, decency and fair play.

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Id. at 725–26; see also Staley v. State, 851 So. 2d 805 (Fla. Dist. Ct. App. 2003) (stating “[the

defendant] simply could not have knowingly and intelligently waived his right to contest

allegations against him without knowing what those allegations were”).3

       Here, applying that same analysis, we extend the holdings of Tornavacca and LaPlaca to

the present case and hold that the right to minimum due process before a defendant can be

expelled from a drug-court program is so fundamental that it cannot be waived by the

defendant in advance of the allegations prompting the removal from the program. Neal was


       3
         Further, we note that several other jurisdictions have held that drug court participants
are entitled to hearings because drug court terminations affect liberty interests and therefore
the Due Process Clause—the right cannot be prospectively waived. See National Drug
Court Institute, The Drug Court Judicial Benchbook § 8:4, at 163–64 (2011). “The
consequences of termination from drug court are comparable to those sustained in a
probation revocation . . . . the best practice is to accord drug court participants the same due
process rights enjoyed by probationers.” Id. (citing People v. Anderson, 833 N.E.2d 390 (Ill.
App. Ct. 2005); State v. Cassill-Skilton, 94 P.3d 407, 410 (Wash. Ct. App. 2004); Hagar v.
State, 990 P.2d 894, 899 (Okla. Crim. App. 1999)). In Gosha v. State, 931 N.E.2d 432 (Ind.
Ct. App. 2010), the court explained that termination from drug court requires the written
notice of the claimed violations, the disclosure of the evidence against the defendant, the
opportunity to be heard and present evidence, the right to confront and cross-examine
witnesses, and a neutral and detached hearing body. See also Harris v. Commonwealth, 689
S.E.2d 713, 713 (Va. 2010) (“Consequently, because Harris had no opportunity to participate
in the termination decision, when deciding whether to revoke Harris’ liberty and impose the
terms of the plea agreement deprived Harris of the opportunity to be heard regarding the
propriety of the revocation of his liberty interest.”). Finally, in Gagnon v. Scarpelli, 411 U.S.
778, 790 (1973), the United States Supreme Court required a probationer be accorded a
preliminary and final revocation hearing. Before the preliminary hearing, the probationer
must be notified of the hearing, its purpose and the alleged violation, the limited right to
confront and call witnesses, and the probationer’s right to be present, as well as given a
written report of the hearing. At the probation revocation hearing, similar elements are
required, including (1) written notice of the violation; (2) disclosure of the evidence against
the probationer; (3) an opportunity to be present and testify; (4) the right to confront and
cross-examine adverse witnesses; (5) a neutral magistrate; and (6) a written finding of the
evidence relied upon and the reasons for revocation. National Drug Court Institute, The
Drug Court Judicial Benchbook, § 8:4.

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allegedly expelled from the drug-court program for horseplaying. During the sentencing

proceeding, Neal argued that he had already been disciplined for the violation. Further, as

noted above, the circuit court changed the justification for expulsion from the drug-court

program as follows:

              You’re – and I’m going to answer it and we’re gonna be done in about two
       seconds. The process of ADC punishment and ADC inter-workings is not something
       I have any control over. As I understand it, we were told – and there’s no question
       about it. We were told to come get you.

              It has – again, as I understand it, it has to do not only with that incident, but
       in general, Jason, you’re not fit for this program because you don’t want to – you
       don’t want to do the things to get through this program that you have to do. And you
       end up with your negativism pulling everyone down. And we’re done. You can take
       him.

       Because Neal was not given a hearing4 or an opportunity to contest his expulsion from

the drug-court program, it is unclear to this court precisely how the decision to expel Neal

from the drug-court program was made or on what basis.5 Neal sought to challenge the

allegations against him during the sentencing proceeding; however, the decision to expel Neal



       4
         The dissent states Neal “already had that hearing.” This statement is inaccurate, the
circuit court conducted a sentencing hearing.
       5
         We note that Arkansas Code Annotated section 16-98-303(e) states that each judicial
district may develop a training and implementation manual for drug-court programs with the
assistance of the:
        (1) Department of Human Services;
        (2) Department of Education;
        (3) Department of Career Education;
        (4) Department of Community Correction; and
        (5) Administrative Office of the Courts.

This manual is also noticeably absent from the record.

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from the drug-court program had already been made, outside of Neal’s presence. As in

LaPlaca, Neal was denied the opportunity to contest the allegations against him based on the

“waiver” contained in the drug-court admission form, a document that was executed before

Neal was aware of which allegations would be made against him. Thus, Neal’s advanced

waiver amounted to a deprivation of his right to due process when he could not have

knowingly and intelligently waived his right to contest allegations against him without

knowing what those allegations were. Staley, supra.

       The dissent takes issue with our analysis concerning Neal’s expulsion from the drug-

court program and contends that the drug-court program and the Arkansas Department of

Community Correction (“ADCC”) residential treatment program are two separate programs.

However, this is not supported by the record. The Saline County Adult Drug Court

Admission Form states that the “Drug Court Participant” consents “to be supervised by the

ADCC.” Further, the Drug Court Act authorizes the establishment of a drug-court program

in each judicial district. Pursuant to Arkansas Code Annotated section 16-98-303(b)(1), a

drug-court program may utilize services from several different agencies, including the ADCC,

and those services may include the ADCC “residential treatment program.” The Drug Court

Act merely authorizes drug courts, funding, and agency support. However, absent from the

Drug Court Act, is any authority for ADCC or any other provider to expel a drug-court

participant from a drug-court program.

       Moreover, the dissent’s reliance on Carroll v. Hobbs, 2014 Ark. 395, 442 S.W.3d 834

(per curiam) and Johnson v. State, 2012 Ark. 212 is misplaced. This court’s refusal to weigh


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in on the ADCC’s decision concerning parole eligibility is of no moment because parole and

the drug-court program are entirely distinct. Arkansas Code Annotated section 16-93-101(7)

defines parole as “the release of the prisoner into the community by the board prior to the

expiration of his or her term, subject to conditions imposed by the board and to the

supervision of the Department of Community Correction.” Thus, in parole, the defendant

has already been sentenced by the court and is no longer subject to the court’s jurisdiction.

In contrast, a drug-court program is more akin to probation. Probation is defined as “a

procedure under which a defendant, found guilty upon verdict or plea, is released by the court

without imprisonment, subject to the conditions imposed by the court and subject to the

supervision of the Department of Community Correction.” Ark. Code Ann. § 16-93-101(8).

Accordingly, because a drug-court program is analogous to probation, drug-court participants

should be afforded the same protections as a probationer upon revocation.

       Based on the record before us, the failure to hold a hearing prior to Neal’s expulsion

from the drug-court program amounted to a due-process violation, and the circuit court

clearly erred in denying Neal’s petition for postconviction relief on this basis. Accordingly,

we reverse the circuit court’s order denying Neal’s petition for postconviction relief and

remand with instructions for the circuit court to enter an order granting Neal’s petition for

postconviction relief, vacating the sentencing order, and ordering that a hearing be held in

accordance with this opinion to establish whether Neal should be expelled from the drug-

court program. Because we reverse on this basis, we need not address Neal’s ineffective-

assistance-of-counsel claims.


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        Reversed and remanded.

        GOODSON, HART, and WYNNE, JJ., concur.

        BRILL, C.J., and DANIELSON and WOOD, JJ., dissent.

        COURTNEY HUDSON GOODSON, Justice, concurring. I agree with the majority’s

disposition of this appeal and join it. I write separately to highlight additional due process

concerns raised by the facts of the case.

        Through our decision in this case as well as our previous decision in Tornavacca v. State,

2012 Ark. 224, 408 S.W.3d 727, this court has joined with many other states in holding that

defendants participating in drug court1 are entitled to certain fundamental protections,

including the right to notice and a hearing prior to termination from the drug court program.

As we noted in Tornavacca, these protections emanate from the twin decisions of the United

States Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972), holding that certain

minimum due-process requirements apply to parole revocations and Gagnon v. Scarpelli, 411

U.S. 778 (1973), applying those protections to probation revocations. At the heart of the

decisions in Morrissey and Gagnon was the Court’s recognition that revocation of parole or

probation results in a “grievous loss” of liberty to the defendant. Morrissey, 408 U.S. at 482.

Like defendants facing revocation of probation or parole, defendants terminated from drug

court are also sentenced to a term of imprisonment, and accordingly, they experience a similar

loss of liberty.


        1
        Although the program is called drug “court,” it is actually a nonadversarial treatment
program that includes judicial oversight and coordination between the judge, prosecutor,
defense, and treatment providers. See Ark. Code Ann. § 16-98-302 (Supp. 2015).

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       The Court in Morrissey emphasized that, at a minimum, due process requires that

defendants facing a loss of liberty be provided with “(a) written notice of the claimed

violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to

be heard in person and to present witnesses and documentary evidence; (d) the right to

confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good

cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a

traditional parole board, members of which need not be judicial officers or lawyers; and (f)

a written statement by the factfinders as to the evidence relied on and reasons for revoking

parole.” Morrissey v. Brewer, 408 U.S. at 489. In line with these requirements, Arkansas has

established procedures to provide minimum protections for defendants facing probation

revocation. Ark. Code Ann. § 16-93-307 (Supp. 2015). We have noted that these

protections are designed to comply with the decisions in Morrissey and Gagnon. Lockett v.

State, 271 Ark. 860, 611 S.W.2d 500 (1981). Additionally, the Arkansas Drug Court Act

specifically provides for minimum due process protection, stating that one goal of the program

is the “[u]se of a nonadversarial approach in which prosecution and defense promote public

safety while protecting the right of the accused to due process. Ark. Code Ann. § 16-98-302(b)(2)

(Supp. 2015) (emphasis added).

       In this case, it is clear that the procedures in the Saline County drug court program fell

far short of the necessary minimum due process protections outlined in Morrissey. First, the

record does not indicate that Neal was provided with written notice of any kind regarding the

allegations supporting his removal from the drug court program. We have held that a


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defendant has a right to written notice of the allegations against him before his probation can

be revoked and that a revocation procedure is “fundamentally unfair” if a defendant cannot

properly prepare for the hearing because he is denied advance knowledge about what charges

of misconduct are to be investigated as a basis for the proposed revocation of the probation.

Hawkins v. State, 251 Ark. 955, 957, 475 S.W.2d 887, 888 (1972). Thus, the failure to

provide written notice of impending termination from the drug court program can result in

a due process violation. See, e.g., State v. Cassill-Skilton, 122 Wash. App. 652, 94 P.3d 407

(2004); Hagar v. State, 990 P.2d 894 (Okla. Crim. App. 1999).

       Second, although Neal did speak at the sentencing hearing, he was not given the

opportunity to present evidence or witness testimony to support his position that he should

not be terminated from the program or to cross-examine adverse witnesses. Moreover, the

fact that he was allowed to address the court in the form of a question during the hearing is

of little consequence because it is clear from the colloquy between Neal and the circuit court

that the decision to terminate Neal from the program had already been made in advance of

the hearing. Indeed, the circuit court imposed Neal’s sentence before Neal spoke, stating, “Mr.

Neal, in being sent out of the 90-day program you basically have given us no choice on this

one. Um, at this point, we’re imposing your sentence.” Even after Neal argued to the court

that he was being improperly terminated from the program, the circuit court did not address

his concerns, stating instead, “I’m going to answer [your question] and we’re gonna be done

in about two seconds.” Thus, it is abundantly clear from the record that this hearing was not

a meaningful opportunity to be heard.


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         Third, I question whether the decision to terminate Neal from the drug court program

was made by a “neutral and detached hearing body” as required by the Morrissey decision.

Pursuant to the Arkansas Drug Court Act, the circuit court judge may sit on the drug court

team assigned to manage the drug court cases. Ark. Code Ann. § 16-98-303(d)(2). As a

result, the Act “requires the judge to participate in legislating the drug court program,

supervising the execution of the program, and then adjudicating the issue of whether the

probationer has violated the rules that same judge helped legislate and enforce. In the process,

the probationer is denied his due process guarantee of a hearing before an objective,

uninterested, and impartial judge.” Alexander v. State, 48 P.3d 110, 116 (Okla. Crim. App.

2002) (Lumpkin, J., concurring). At least one appellate court has recognized a violation of

a defendant’s due process rights if the circuit court does not conduct its own independent

analysis of the case but instead relies on the recommendations of the drug court team. State

v. Stewart, No. M200800474CCAR3CD, 2008 WL 4467179 (Tenn. Crim. App. Oct. 6,

2008).

         In this case, during Neal’s guilty-plea hearing, the circuit court judge acknowledged

that the drug court team, including himself, the prosecutor, and the defense attorney, regularly

talked about drug court participants out of court and without the participant present. In fact,

the court admitted that “there are times if you screw up that we’ll not only talk about you,

we’ll decide what punishment we’re going to do before we ever tell you.” Then, in

dismissing Neal from the drug court program, the circuit court stated, “[A]s I understand it,

it has to do not only with that incident, but in general, Jason, you’re not fit for this program


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because you don’t want to - - you don’t want to do the things to get through this program

that you have to do. And you end up with your negativism pulling everyone down.”

Because there was no testimony during the hearing, it is unclear precisely how the circuit

court reached its conclusion that Neal “[didn’t] want to do the things to get through this

program” or that Neal’s “negativism [was] pulling everyone down.” One can only assume

that this information and the recommendation for termination came from the private meetings

of the drug court team. Finally, although it appears that Neal sought his recusal, the same

judge presided over and denied his request for Rule 37 relief that is the subject of the instant

appeal. These circumstances raise a serious question as to the impartiality of the judge in his

role as a neutral and detached hearing body.

       Fourth, Neal did not receive a written statement by the circuit court as to the evidence

relied on and the reasons for removing him from the drug court program, as required by

Morrissey. Notably, this requirement is codified in section 16-93-307 for revocation of

probation, and such a requirement should extend to cases in which a defendant is removed

from the drug court program. Indeed, a written order is critical to allow the defendant to

appeal from the termination decision. Hagar, supra.

       Fifth, I am concerned by the apparent lack of counsel Neal received after entering the

drug court program. Most concerning is that the record does not indicate that Neal was

assisted by counsel at the sentencing hearing. In Gagnon, supra, the United States Supreme

Court noted that in certain instances, counsel may be required for a defendant facing

revocation of probation. The court stated,


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       Presumptively, it may be said that counsel should be provided in cases where,
       after being informed of his right to request counsel, the probationer or parolee
       makes such a request, based on a timely and colorable claim (i) that he has not
       committed the alleged violation of the conditions upon which he is at liberty;
       or (ii) that, even if the violation is a matter of public record or is uncontested,
       there are substantial reasons which justified or mitigated the violation and make
       revocation inappropriate, and that the reasons are complex or otherwise
       difficult to develop or present.

Gagnon, 411 U.S. at 790. In this case, it appears that Neal argued that he had not committed

the violation alleged and, accordingly, he may have been entitled to counsel under the analysis

in Gagnon. Additionally, the very structure of drug court gives me pause regarding whether

defendants are receiving adequate and zealous representation once they enter the program.

The structure of the drug court system changes the role of the defense lawyer from that of an

advocate for the defendant to a member of a non-adversarial team with, among others, the

prosecutor and judge. As one writer has argued, “[F]orced non-adversarialism can place

defense attorneys in conflict with clients as well as interfere with the provision of competent

and zealous representation as required by law.” Mae C. Quinn, Whose Team Am I on

Anyway? Musings of A Public Defender About Drug Treatment Court Practice, 26 N.Y.U. Rev. L.

& Soc. Change 37, 58 (2001). This problem comes to a crisis point and the non-adversarial

system breaks down when the drug court team seeks to terminate the defendant from the

program, such as happened to Neal in this case.

       Next, the form that Neal signed to enter the Saline County Drug Court program

required him to agree to a sentence that was 25% longer than he would receive if he were not

a Drug Court participant. Neal argues that this agreement resulted in him being sentenced

to 420 months’ imprisonment, despite the maximum sentence for his crimes being 384

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months.2 Sentencing is entirely a matter of statute in Arkansas, and a circuit judge may only

impose a sentence authorized by statute. Harness v. State, 352 Ark. 335, 101 S.W.3d 235

(2003). Furthermore, we have held that circuit judges dealing with drug court offenders are

bound by the general sentencing guidelines. Cross v. State, 2009 Ark. 597, 357 S.W.3d 895.

As we noted in Cross, “[T]he Drug Court Act reveals no provision granting drug-court judges

special sentencing authority…Furthermore, this court has recognized that a circuit judge lacks

the authority to sentence a defendant otherwise than in accordance with Chapter 4 of the

Arkansas Criminal Code.” Id. at 10, 357 S.W.3d at 901. Thus, to the extent that the Saline

County Drug Court form purports to authorize a sentence in excess of the maximum

statutory sentence, it is improper.

       As a final note, because the instant statutory scheme provides that “each judicial district

of the state is authorized to establish its own drug court program,” there is little consistency

in the various drug court programs across the state. See Ark. Code Ann. § 16-98-303(a).

These inconsistent procedures from one drug court to another suggests “local rules,” which

we have disallowed in Arkansas for almost 30 years. Weaver v. State, 296 Ark. 152, 752

S.W.2d 750 (1988) (recognizing abolishment of local rules through revocation of Ark. R.

Civ. P. 83). Additionally, because there is no uniform practice regarding the procedure or



       2
         The State argued at oral argument that Neal’s guilty plea agreement contained an
error in that it did not identify that Neal was sentenced as a habitual offender, and
accordingly, his sentence was not in excess of the maximum sentence. Regardless of this
factual dispute, the fact that the Saline County Drug Court program requires a defendant to
agree to a 25% harsher sentence without expressly limiting the sentence to the statutory
maximums allows for the possibility of an illegal sentence.

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documentation of drug court proceedings, this court is left with very little substance to review

to ensure that defendants are being treated fairly.

       In short, the facts of this case raise a myriad of concerns regarding the handling of drug

court cases. While I recognize the laudable goals of the drug court program, the benefits of

the program cannot excuse a denial of fundamental due process to even one criminal

defendant. The drug court program can succeed without sacrificing constitutional liberties.

In light of this court’s recognition that drug court participants are entitled to the protections

afforded to parolees and probationers under Morrissey and Gagnon, I believe a reworking of

the current drug court system may be necessary to ensure systematic protection of

constitutional rights for its participants.

       HART and WYNNE, JJ., join.

       RHONDA K. WOOD, Justice, dissenting. The majority reverses this case because

“the failure to hold a hearing prior to Neal’s expulsion from the drug-court program

amounted to a due process violation.” I dissent because Neal is not entitled to the relief

sought.

       I agree with the majority that Neal did not waive his future due-process rights at the

time of his plea entry. However, there is a fundamental misunderstanding regarding the roles

of the Arkansas Department of Community Correction (ADCC) residential substance-abuse

program and the Saline County Drug Court program, both of which expelled Neal. The

confusion arises from the fact that, according to the circuit court, Neal was “dismissed from

the 90-day [substance abuse] program at the Arkansas Department of Correction which was


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a requirement of his participation in drug court.”1 Neal’s sentence was imposed for failing to

complete the residential program, which was a condition of the Saline County Drug Court

program. The majority states, “Neal was allegedly expelled from the drug-court program for

horseplaying.” However, Neal was dismissed from the ADCC residential program, not the

Saline County Drug Court program, for “horseplay.” The majority uses “horseplay” to

suggest that somehow the ADCC expulsion was for a minor reason, however, as the circuit

court stated, “his failure to complete the program at the Arkansas Department of Correction

was the first that this Court had ever heard of” (emphasis added).   The majority further states

“it is unclear to this court precisely how the decision to expel Neal from the drug-court

program was made or on what basis.” However, the circuit court explained the reason for

its decision at the hearing, in its letter to counsel on the Rule 37 petition, and in the order

denying the Rule 37 petition. Neal was expelled from the Saline County Drug Court

program for failing to complete the ADCC residential program and the court’s finding that

Neal was “not fit for this program” because he did not want “to do the things to get through

this program.”2

       The Arkansas Drug Court Act created a mixture of judicial and executive authority

for drug-court programs. The legislature recognized that “[d]rug court programs may require

       1
         There are not “drug courts,” but rather, “drug-court programs.” The shortened
version leads to a lot of misunderstanding. See Ark. Code Ann. §§ 16-98-301 et seq.
       2
        The majority also contends, “the decision to expel Neal from the drug-court program
had already been made, outside of Neal’s presence.” It presumably is referring to Neal’s
expulsion from the ADCC residential substance-abuse program, not the actual court-involved
drug-court program.

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                                   Cite as 2016 Ark. 287

a separate judicial processing system differing in practice and design from the traditional

adversarial criminal prosecution and trial systems.” Ark. Code Ann. § 16-98-303(d)(1). Under

the Act, the ADCC shall provide “intensive short-term and long-term residential treatment

for drug court program participants.” Ark. Code Ann. § 16-98-303(b)(2)(A)(v). The majority

appears to misunderstand the distinction between drug-court programs and the services and

treatments within the programs. ADCC has discretion over its programs and ultimately

whether a participant should be expelled from its residential program.            “[We] have

consistently declined to dictate the operation of the Arkansas Department of Community

Correction except in circumstances where the appellant asserts an infringement upon

constitutional rights.” Smith v. May, 2013 Ark. 248, at 4 (per curiam). We have refused to

find a constitutional right to participate in specific correction programs. See id. (holding an

inmate had no right to participation in ADCC hobby-craft program). Likewise, we have

refused to weigh in on the ADCC’s decision concerning parole eligibility, although I am not

suggesting Neal is in a similar position as a parolee. Carroll v. Hobbs, 2014 Ark. 395, 442

S.W.3d 834 (per curiam); Johnson v. State, 2012 Ark. 212. These types of decisions are in the

province of the executive branch. See Johnson, 2012 Ark. 212, at 3. Neal’s continued

participation in the residential program was a decision of the ADCC. As the circuit court

explained in sentencing Neal, “the process of ADCC punishment and ADCC inter-workings

is not something I have any control over.”

       Accordingly, as with parolees, it is not for this court to decide whether Neal should

have been allowed to continue in the ADCC residential substance-abuse program. However,


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Neal did have minimal due-process rights prior to expulsion from the Saline County Drug

Court program and imposition of the sentence, which had been held in abeyance. Again,

these are important distinctions, and the circuit court explained this in its letter opinion. It

stated, “Mr. Neal admitted in open court that he was sanctioned and did not comply with the

rules of the 90-day program from which he was expelled. The drug court really had no other

option but to impose the sentence.” Because the ADCC residential-treatment program was

a “requirement” of the Saline County Drug Court program and Neal was expelled from it

and because the circuit court found that Neal was not willing to work the drug-court

program, the circuit court imposed his predetermined sentence.

       Finally, the majority cites State v. LaPlaca to support its holding that Neal ought to

receive another hearing concerning his drug-court program expulsion. 27 A.3d 719 (N.H.

2011). LaPlaca also considered the waiver issue and held that the “waiver, however, did not

relieve the State of its burden to prove, by a preponderance of the evidence, that he violated

the conditions of his suspended sentence.” Id. At 725 LaPlaca stands for the proposition that

a participant cannot prospectively waive due process and is entitled to due process at the point

of imposing a suspended sentence, and that due process is whether the participant violated a

condition of the suspended sentence, which the burden is on the State to prove.

       Neal admitted he failed to complete the residential program, which was a condition

of the Saline County Drug Court program. Therefore, the preponderance of the evidence

showed he violated a condition and the circuit court imposed a sentence that was within its

authority and discretion. This is no different than a defendant on probation, who appears for


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his revocation hearing and admits he violated a term of his probation. The majority appears

to agree that Neal is in a similar situation. Consequently, I am uncertain what relief the

majority intends to offer Neal. According to the majority, Neal is entitled to a hearing “to

establish whether Neal should be expelled from the drug-court program.” I assume the

majority means expulsion from the Saline County Drug Court program and not the expulsion

from the ADCC residential facility, but it is unclear. If the majority intends to follow LaPlaca,

then it is remanding for a hearing to determine by a preponderance of the evidence whether

Neal violated a condition of the Saline County Drug Court program. Neal already had that

hearing and we already have that answer because Neal admitted to it. He violated rules of his

residential program, which resulted in his failure to complete the residential program.

       It is also important to note that this is a Rule 37 Petition and as the circuit court noted

in his order denying relief, “Here the petitioner does not contest the facts that led to his

expulsion from drug court. He makes no claim that there were witnesses or evidence which,

if presented to the Court would have disputed his cause for expulsion from the program. He

does not set forth any action that Pete Lancaster could have taken which would have

prevented his expulsion from Drug Court.” This finding was not clearly erroneous. In

addition, at the hearing imposing the sentence, the circuit court’s finding that Neal failed to

complete the Saline County Drug Court program’s condition, and the court’s finding that

Neal was unwilling to work the court-involved program were not clearly erroneous. Neal

had due process and had the hearing for which the majority remands. For these reasons, I

dissent.


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BRILL, C.J., and DANIELSON, J., join.
Ryan C. Allen, for appellant.

Leslie Rutledge, Att’y Gen., by: Brooke Jackson, Ass’t Att’y Gen., for appellee.




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