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                SUPREME COURT OF ARKANSAS
                                       No.   CR-16-412

RICKEY DALE NEWMAN                                Opinion Delivered   December 1, 2016
                 PETITIONER
                                                  PETITION FOR WRIT OF
V.                                                CERTIORARI

                                                  HONORABLE GARY R. COTTRELL,
HONORABLE GARY R. COTTRELL,                       JUDGE
CRAWFORD COUNTY CIRCUIT
COURT                                             PETITION DENIED.
                RESPONDENT

                            KAREN R. BAKER, Associate Justice


       On January 28, 2016, petitioner, Rickey Dale Newman filed a motion to dismiss for

violation of right to speedy trial with the circuit court. On March 10, 2016, the circuit court

denied the motion. Newman now seeks a writ of certiorari vacating the circuit court’s order.

       A procedural history of Newman’s case is necessary to an understanding of Newman’s

petition for writ of certiorari. On June 10, 2002, Newman, was convicted in the Crawford

County Circuit Court of one count of Capital Murder and sentenced to death. On January

16, 2014, we vacated Newman’s conviction and sentence and remanded the case to the circuit

court for a new trial on the grounds that Newman was not competent to stand trial in 2002.

Newman v. State, 2014 Ark. 7, at 29. The mandate issued on February 5, 2014. On February

28, 2014, in response to the mandate, the circuit court issued an order suspending proceedings

and committing Newman to the custody of the director of the Arkansas Department of

Human Services “for detention, care, and treatment until restoration of fitness to proceed.”
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       Newman was transported for the assessment, but on the advice of his counsel,

Newman refused to cooperate. On April 21, 2014, Dr. Mark Peacock, Ph.D., of the

Arkansas State Hospital filed a report with the circuit court. In this report, Peacock stated he

could not assess “the true extent of Mr. Newman’s knowledge of the adjudicative process and

his capacity to provide effective assistance to his attorney” but that Newman’s “conversations

with staff and his conduct since admission [had] not raised suspicion that his lack of

cooperation with restoration or evaluation efforts is based in any substantially impairing

mental disease or mental defect.” Peacock further opined that Newman’s refusal to cooperate

with the mental examination was a “knowing and voluntary” act and “any ongoing efforts

to forcibly treat or ‘restore’ [Newman’s] adjudicative fitness [would] only serve to create a

potentially unsafe or openly defiant situation” that would not serve the interests of any party.

       On June 5, 2014, Newman filed a request to disqualify the prosecuting attorney and

his office. On August 27, 2014, the circuit court granted the motion and appointed a special

prosecutor. The circuit court rescheduled the trial for October 27, 2014; however, the special

prosecutor requested a continuance. The circuit court rescheduled the trial for April 6, 2015.

       On October 10, 2014, the special prosecutor filed a motion seeking a fitness

examination of Newman. This motion was based on the previous judicial findings of

Newman’s incompetence and the content of a letter, written by Newman, without the

knowledge of his counsel, and addressed to the court, in which Newman stated that he did

not feel his circumstances regarding competency had changed since it was determined he was

incompetent to stand trial in 2002. In the letter, Newman also maintained that he is innocent


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but requested the death penalty remain an option because “‘death is [his] only peace.’” On

November 6, 2014, the circuit court granted the motion, and allowed a private psychiatrist

not practicing with the Arkansas State Hospital, Bradley C. Diner, M.D., to examine

Newman. On December 29, 2014, Newman filed a motion to disqualify the special

prosecutor.

       On February 26, 2015, Diner filed a report with the circuit court in which stated he

was unable to fully assess Newman’s fitness based on records alone but that he believed

Newman’s behavior was deliberate. He ultimately recommended that Newman be sent back

to the Arkansas State Hospital for assessment:

       I am of the belief that Newman suffers from both mental disease and defect.

       I am not, however, certain that his psychiatric conditions have rendered him
       incompetent. Specifically, I am not of the opinion that Newman’s repeated request for
       the death penalty is indicative of suicidal ideation or intent and that his “suicidality”
       impedes his ability to make rational, self-protective decisions. Rather, I believe
       Newman has learned to use this behavior as a way to prolong the proceedings, tie the
       court’s hands, and ultimately prolong his life.

       Secondly, I am uncertain that his psychiatric condition precludes his ability to consult
       his attorney. . . . He has learned that his behavior confounds and complicates his case,
       thus prolonging action and simultaneously giving him power and control. This very
       behavior is indicative of understanding factually the charges against him and gives
       insight into his awareness of the consequences. There is even some indication that he
       knows he should be discussing his actions with his attorney (by virtue of stating
       repeatedly, “She doesn’t know I’m writing this.”). I believe he knows this will make
       it appear he cannot work with her, so he repeatedly does it.

       The extent to which Newman’s illness and cognitive deficits manifest and interfere
       with his competency cannot be determined by a retroactive review of records alone.
       He must be examined directly, and his behavior affect, interpersonal interactive
       quality, and cognitive skills must be observed and analyzed. . . . Unfortunately,
       Newman is currently refusing to cooperate, making that direct assessment impossible.


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       Therefore, I would recommend he be sent back to the Arkansas State Hospital for
       another competency assessment.

       On April 1, 2015, on the State’s motion, the circuit court again entered an order

committing Newman to the Arkansas State Hospital “for detention, care, and treatment until

restoration of fitness to proceed.” The court based its judgment on additional letters it had

received from Newman requesting death and Newman’s continued refusal to cooperate with

the fitness evaluation. According to the court,

       there has been no meaningful evidence presented to the Court to suggest a material
       change in defendant’s fitness, and the evidence before the court suggests there has not
       been. Although both defendant and his counsel insist that there has been a change and
       that he is competent to proceed, both have inexplicably refused to cooperate with the
       Court’s efforts to secure an appropriate mental-health evaluation to establish that
       contention . . . in light of counsel’s advice that her client not cooperate with an
       evaluation, even though counsel states that she believes he is competent, the court
       affords little weight to counsel’s view . . . If defendant were indeed competent, as his
       counsel contends, he presumably would be found competent by a mental-health
       evaluation if one were permitted to proceed on his contention that his competence has
       been restored. . . . In light of the Supreme Court’s recent finding that defendant was
       incompetent at the time of his first trial, fortified by his behavior at trial and through
       his more recent coram nobis proceedings, behavior not unlike that exhibited now, and
       in light of the fact that there is no meaningful evidence that his competence has been
       restored, the court concludes that defendant remains unfit for trial.

       On June 25, 2015, Peacock filed a report with the circuit court in which he stated, “I

believe that Mr. Newman has evidenced, more often than not, a capacity for thinking about

his case in a rational manner and tends to also maintain his understandably pathological desire

for death.” Peacock further noted that Newman “was able to identify and interact

cooperatively with his attorney” and that “Newman’s letter writing is more a product of his

personality pathology than acute psychopathology typically viewed as responsible for

substantial impairment in one’s fitness-related behavior.” Peacock further opined that

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Newman “is capable of rationally understanding the points being raised in his defense and of

displaying lengthy and meaningful periods of appropriate and controlled behavior when faced

with the facts and information pertaining to his case.” Peacock concluded that Newman was

not only capable of restoration but that had also achieved it. Subsequently, the special

prosecutor requested a hearing on the report, and a hearing was held on September 18, 2015.

Peacock testified regarding his mental evaluation of Newman. At the conclusion of the

hearing, the circuit court requested a final report from Diner, which was filed on October 2,

2015. Diner opined that Newman was fit to stand trial. The court agreed with Peacock’s and

Diner’s opinions and found Newman fit to proceed on November 4, 2015.

       On January 28, 2016, Newman filed a motion to dismiss for violation of the right to

a speedy trial, which the circuit court denied; Newman filed this petition for a writ of

certiorari.

                           Speedy Trial: Petition for Writ of Certiorari

       In the present petition for a writ of certiorari, Newman contends that we should issue

a writ of certiorari vacating the order of the circuit court that denied his motion to dismiss for

violation of his right to a speedy trial. Specifically, Newman contends that circuit court erred

by excluding from the 12-month speedy-trial period the period between when Newman was

committed for restoration on February 28, 2014, until Newman was determined competent

on November 4, 2015.

       “A writ of certiorari is an extraordinary writ, which ‘will be granted only when there

is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or when the


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proceedings are erroneous on the face of the record.’” Smith v. Fox, 358 Ark. 388, 395, 193

S.W.3d 238, 243 (2004) (internal citations omitted). This writ is appropriate only where it is

apparent from the record that there has been a ‘plain, manifest, clear, and gross abuse of

discretion, and there is no other adequate remedy.’” State v. Dawson, 343 Ark. 683, 693, 38

S.W.3d 319, 325 (2001)(internal citations omitted). With these standards in mind, we turn

to the law governing speedy trials. Arkansas Rule of Criminal Procedure 28 governs

speedy-trial determinations. It requires the State to try a defendant within twelve months,

excluding any periods of delay authorized by Ark. R. Crim. P. 28.3. See Ark. R. Crim. P.

28.1 (2002); Miles v. State, 348 Ark. 544, 75 S.W.3d 677 (2002). Further, Ark. R. Crim. P.

28.2(f) states that “if the defendant is to be retried following a collateral attack of a conviction,

the time for trial shall commence from the date of the order invalidating the conviction.”

       Here, Newman’s conviction was vacated on January 16, 2014. However, since the

court’s decision remanding the case for retrial was not effective until the mandate was issued,

the time for trial commenced running on February 7, 2014. See Ark. Sup. Ct. R. 5-2 (2015);

Clements v. State, 312 Ark. 528, 531, 851 S.W.2d 422, 424 (1993). Thus, the State had until

February 7, 2015, to try Newman unless there were periods of delay authorized by Ark. R.

Crim. P. 28.3. Pursuant to Ark. R. Crim. P. 28.3(a), the period of delay from other

proceedings concerning the defendant, including but not limited to an examination and

hearing on the competency of the defendant and the period during which he is incompetent

to stand trial shall be excluded in computing the time for trial.

       In this case, Newman was evaluated for competency multiple times, due in large part


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to his refusal to cooperate with the assessments. However, Newman asserts that under this

court’s ruling in Davis v. State, 375 Ark. 368 291 S.W.3d 164 (2009), only the time between

the date the circuit court ordered the mental evaluation and the date that the corresponding

report was filed is excusable. Thus, Newman argues the maximum excludable time totaled

249 days. This calculation represents 52 days between February 28, 2014, and April 21, 2014;

112 days between November 6, 2014, and February 26, 2015; and 85 days between April 1,

2015, and June 25, 2015. Furthermore, Newman argues that, “if every one of those days is

excluded from the speedy trial calculation, the combined effect is to extend the end of the

speedy trial period from January 16, 2015, to September 22, 2015.” Therefore, Newman

asserts, the circuit court erred in denying his motion to dismiss on January 28, 2016.

       The State responds that Newman’s argument disregards the portion of Ark. R. Crim.

P. 28.3(a) concerning the exclusion of any period during which a defendant is incompetent

to stand trial. The State concedes that when Newman filed his motion to dismiss on January

28, 2016, 720 days had elapsed from the issuance of this court’s mandate, thus establishing

a prima facie case that a speedy trail violation had occurred. However, the State further

responds that any delay was either caused by Newman or was justifiably excluded under Ark.

R. Crim. P. 28.3. The State contends that, based on the record before us, it is clear that

Newman was never ruled fit to stand trial from the time this court found him unfit to proceed

at his 2002 capital-murder trial until the circuit court found Newman fit to proceed, on

November 4, 2015. Thus, the state contends that the circuit court had no authority or

jurisdiction to resume proceedings against Newman until it determined he was fit to proceed.


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       In State v. Thomas, 2014 Ark. 362, 439 S.W.3d 690, we addressed whether a circuit

court has jurisdiction to restart a criminal proceeding before a defendant has been found

competent to stand trial. In Thomas, we determined that under Ark. Code Ann. § 5-2-310

(c)(1), “it is only after the circuit court has found that a defendant has ‘regained fitness’ that

criminal proceedings may be resumed.” Id. at 6 (citing Mauppin v. State, 309 Ark. 235, 831

S.W.2d 104 (1992)). In this case, the circuit court was unable to determine that Newman was

fit to proceed until November 4, 2015, primarily because Newman refused to submit to an

evaluation. Thus, although Peacock and Diner both reported that Newman was competent,

neither could definitively say that he was competent to proceed until he proceeded with the

mental evaluation. As a result, the circuit court could not find him fit to proceed, and

pursuant to the holding in Thomas, the circuit court could not resume criminal proceedings.

Because, the period during when Newman was not competent to stand trial is excludable for

purposes of calculating speedy-trial, we hold that the circuit court did not err in denying

Newman’s motion to dismiss.

       Accordingly, we find no error on the face of the record, and Newman has not met the

requirements for issuance of a writ of certiorari.

       Petition denied.

       Julie Brain, for petitioner.

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




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