                                    Cite as 2015 Ark. 60

                SUPREME COURT OF ARKANSAS
                                       No.   CR-91-36

BRUCE EARL WARD                                  Opinion Delivered   FEBRUARY 26, 2015
                             PETITIONER
                                                 MOT I O N TO RECALL THE
V.                                               MANDATE [PULASKI COUNTY
                                                 CIRCUIT COURT, FIRST DIVISION,
                                                 NO. 60CR-89-1836]
STATE OF ARKANSAS
                           RESPONDENT

                                                 MOTION DENIED.


                          PAUL E. DANIELSON, Associate Justice


       Petitioner Bruce Earl Ward moves this court to recall the mandate in Ward v. State,

308 Ark. 415, 827 S.W.2d 110 (1992) (Ward I), the direct appeal of his conviction for capital

murder.1 In Ward I, this court affirmed Ward’s conviction for capital murder, but reversed

his death-penalty sentence and remanded for resentencing. In the instant motion to recall the

mandate, Ward asserts that a recall is warranted because there was a defect or breakdown in

the appellate process when this court failed to recognize the circuit court’s violation of Ake

v. Oklahoma, 470 U.S. 68 (1985), and appellate counsel failed to raise the issue in Ward’s

direct appeal. We deny the motion.


       1
        Simultaneously submitted with the instant motion is Ward’s motion to recall the
mandate in his appeal following his resentence to the death penalty in Ward v. State, 338 Ark.
619, 1 S.W.3d 1 (1999) (Ward III), and his motion to recall the mandate in his appeal from
the denial of his petition for postconviction relief under Arkansas Rule of Criminal Procedure
37.5, Ward v. State, 350 Ark. 69, 84 S.W.3d 863 (2002) (Ward IV).
                                     Cite as 2015 Ark. 60

       The facts relevant to the instant motion, as taken from the record, are these.2 Ward

was charged with capital murder in connection with the death of Rebecca Doss, a clerk at a

Jackpot convenience store in Little Rock. At his plea and arraignment hearing, Ward pleaded

not guilty to the charge. At the hearing on October 9, 1989, the circuit court asked whether

there was any possibility of Ward claiming that he was not guilty by reason of mental disease

or defect. Ward’s defense counsel answered in the affirmative, but explained that he wished

to communicate more with Ward about it and would keep the court apprised.

       Ward subsequently changed his plea to not guilty by reason of mental disease or defect,

and the circuit court entered an order for Ward’s commitment to the Arkansas State Hospital

for examination and observation for a period not to exceed thirty days. The report by

Drs. Michael Simon, the supervising forensic psychologist, and O. Wendell Hall, the forensic

medical director, resulting from that examination was filed with the circuit court on

December 14, 1989, and provided, in relevant part:

       This is to certify that this is a true and correct report of the findings in the above case
       as derived from the following: 1) Historical data from outside sources; 2) Medical
       history, physical and neurological examinations; 3) Laboratory and other physical
       studies; 4) Psychological assessment by staff psychologist.

       Diagnosis: Axis I - None; Axis II - Antisocial Personality Disorder.

       The defendant appears to be aware of the nature of the charges and the proceedings
       taken against him. He is capable of cooperating effectively with an attorney in the
       preparation of his defense.




       2
       The record is the very same that was reviewed by this court in Ward I.


                                                2
                                    Cite as 2015 Ark. 60

       At the time of the commission of the alleged offense, the defendant did not lack the
       capacity to appreciate the criminality of his conduct or to conform his conduct to the
       requirements of the law.

       Ward disputed the report and requested a competency hearing, which was held on

January 18, 1990. At the hearing, Dr. Simon, who had been Ward’s evaluating psychologist,

testified that Ward spent around sixteen days on the forensic unit of the hospital, arriving on

November 29, 1989, and departing around December 14 or 16.3 During that time,

Dr. Simon said, he had interviewed Ward twice and had seen him at a staffing. Dr. Simon

testified that while he could not recall the specifics of his first interview with Ward, he

assumed that he had interviewed him, which would have included discussing why Ward was

there, if Ward understood why he had been sent to the hospital, and what the hospital’s role

was and what it was to do. Dr. Simon’s belief was that the first interview lasted anywhere

from forty-five minutes to an hour in duration.

       Dr. Simon testified that in the subsequent interview of Ward, which he surmised lasted

a little longer than the first, he had performed a verbal IQ test on Ward that he believed to

be “fairly reliable.” He stated that Ward had scored well above average, which would rule

out any kind of mental retardation. Dr. Simon further testified that he had administered a

“proverbs test” and the “Competency to Stand Trial Assessment Instrument.”


       3
         Dr. Simon guessed that the average stay at the hospital for an evaluation was between
two and three weeks. At a prior hearing held January 4, 1990, defense counsel for Ward
stated that the hospital did a “land speed record” on Ward, admitting him on November 29
and returning him to the jail on December 12. The prosecutor took credit for the quick
turnaround, stating that because he wanted a quick resolution of Ward’s trial, he “begged the
director and he made a spot for him and took him in.”


                                              3
                                     Cite as 2015 Ark. 60

       With regard to the report filed with the court, Dr. Simon testified that the historical

data to which he referred was information from Pennsylvania, where Ward had previously

spent time; he was unsure, however, of the source of the information, stating that it came

from either the Pennsylvania Department of Correction or the police. Dr. Simon further

explained that physical and neurological examinations were routine and, he assumed, had been

conducted. Finally, when asked of his psychological assessment referenced in the report,

Dr. Simon responded that Ward’s Axis II diagnosis of antisocial personality disorder was

“based on historical information, [Ward’s] history of getting in trouble with the law, [and] not

following societal rules.”

       Dr. Simon then described the typical staffing conducted prior to a report being issued.

He testified that it typically lasts an hour and one-half to two hours and that the process

includes a presentation of each participant’s information on the patient, discussion of the

patient and the information, an interview of the patient, and a final decision, typically reached

by consensus. Dr. Simon recalled that he was present at Ward’s staffing along with Dr. Hall;

Dr. Bunton, Ph.D., psychologist; Marlo Gurgley, social worker; and Jim Gregory, social

worker intern; but, he stated, there could have been more. He further testified that, while

the data from the social worker usually includes information on the patient obtained from

other sources, such as family, and past records, including medical and criminal, a history on

Ward, other than his criminal history, was lacking because of Ward’s refusal to allow contact

with his family.




                                               4
                                    Cite as 2015 Ark. 60

        Dr. Simon testified that he neither observed any psychotic behavior by Ward, nor

observed any behavior to indicate the presence of a mental disease or defect. He further

explained that antisocial personality disorder is not the type of disorder that would cause one

to be incompetent to stand trial or to lack appreciation for the criminality of his acts and

opined that Ward did not suffer from a mental disease or defect at the time of the incident

that would have rendered him incapable of conforming his conduct to the law, that he could

appreciate the criminality of his conduct, and that he was capable of understanding court

procedure and assisting in his defense.

        Dr. Hall also testified about his familiarity with Ward, stating that he had sat in on

Ward’s staffing and reviewed his records, many of which had been obtained from the

prosecutor’s case file. He explained that, while his personal contact with Ward was brief, he

was aware that Ward had not caused any disruption on the observation unit or been difficult

with the nursing staff. Dr. Hall observed that Ward’s case seemed to be a “straightforward”

one and that he believed Ward to be the most intelligent defendant that the unit had

examined in the last two and one-half years, or as long as Dr. Hall had been working at the

state hospital.

        Dr. Hall agreed that Ward was competent to participate in his own defense and that

he was capable of understanding the criminality of his act at the time it had allegedly been

committed. In describing Ward’s Axis II diagnosis of antisocial personality disorder, Dr. Hall

stated that it




                                              5
                                     Cite as 2015 Ark. 60

       refers to a basic kind of personality, basic patterns of behavior. It this [sic] case is a
       maladaptive behavior, way of dealing with life. . . . The past history is extremely
       important in arriving at that diagnosis. . . . Yes, [also relevant to Ward’s diagnosis of
       antisocial personality disorder was that he showed no evidence of anxiety or depression
       and his lack of worry about his present circumstance appeared notable.] . . . [It is
       relevant because i]t’s fairly common for antisocial personalities to actually show very
       little anxiety at all even in situations that most people would really be in a sweat about.
       He seems kind of unconcerned about it. . . . [A diagnosis of antisocial personality
       disorder relates to a finding of competency at the time of the incident in that t]he
       antisocial personality doesn’t have any impairment of [Ward’s] ability to think or
       reason or impair his judgment. It’s more of a way of like dealing with himself as being
       more important than other people and really being outside the rules that other people
       have to go by.

Dr. Hall also opined that he was confident with the judgment that he and the staffing

committee had reached on Ward’s culpability.

       At the conclusion of the testimony, Ward challenged the report, asserting that an

adequate evaluation had not been performed. Specifically, he pointed to the rushed nature

of the evaluation, alleging that had more time been taken, a different diagnosis might have

resulted. He then requested an independent psychiatric evaluation.

       The circuit court denied Ward’s motion, stating that he

       failed to meet the burden. . . . The burden was on you.
               As a matter of fact, specifically, the doctor—neither doctor was asked if he had
       more time would it in any way, shape, form or fashion probably alter his opinion. I
       get the distinct impression that they were not pressed for time. These are bureaucrats.
       They get paid regardless. They’re going to spend all the time necessary. I didn’t see
       anything in any question that you asked or anything to alert me that this wasn’t a
       good, straightforward evaluation.

Ward again challenged the speed of the evaluation, contesting the circuit court’s ruling that

“they had all the time in the world,” and the circuit court ruled that Ward “failed to meet the

burden that they needed more time.”


                                                6
                                       Cite as 2015 Ark. 60

       The next day, Ward filed a motion for the appropriation of funds for expert assistance,

relying on the United States Supreme Court’s ruling in Ake, supra.4 In it, he requested an

order authorizing defense expenditures in an amount not to exceed $10,000 “to enable the

accused to hire a licensed psychologist and/or a licensed psychiatrist in preparations for and

assistance during trial.” He further sought an ex parte hearing under Ake, supra. Ward

explained that he sought the funds to aid his defense counsel and to adequately explore and

establish the existence of potentially mitigating factors, such as that the murder was committed

while Ward was under extreme mental or emotional disturbance. The State countered

Ward’s motion, contending that Ward had failed to present the court with any evidence to

indicate that a reevaluation of Ward by another expert was necessary.

       The circuit court took Ward’s motion up at a hearing held February 8, 1990. At that

time, defense counsel clarified the motion, stating that it sought funds for expert assistance,

“not for the guilt or innocence phase, [but] more for the mitigation evidence at penalty phase

if we are to get there.” Ward alleged that the evaluation was “inadequate for purposes of

mitigation,” because the evaluators relied almost solely on the State’s file and did not conduct

adequate psychological and intellectual testing. Ward further pointed to the failure of the

evaluators to contact several doctors that Ward had seen in Pennsylvania and explained that




       4
           In Ake, the United States Supreme Court held that “when a defendant has made a
preliminary showing that his sanity at the time of the offense is likely to be a significant factor
at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this
issue if the defendant cannot otherwise afford one.” 470 U.S. at 74.


                                                  7
                                      Cite as 2015 Ark. 60

he wanted his “expert to talk to [those doctors], review the testing that they did, to actually

take a real history and not just rely on the State’s file.”

       The circuit court ultimately denied Ward’s motion, stating that the public defender’s

office had a budget of $650,000 and that it was up to “that office” how to spend it. Again,

Ward clarified the nature of his motion—that the motion was not for money to assist in

proving that Ward was not culpable, but was to assist in adequately preparing for the penalty

phase of his trial. However, the circuit court did not yield in its denial, reiterating its finding

that Ward failed to meet his burden that there was insufficient evidence to question the state

hospital’s evaluation and telling counsel that “[i]t’s just a figment of your imagination.”

       Ward was ultimately tried and convicted of capital murder; he was then sentenced to

death by lethal injection. Ward appealed his conviction and sentence, and this court affirmed

the conviction, but reversed the sentence of death and remanded for resentencing, on the basis

that the jury had been exposed to unsupported allegations against Ward during the penalty

phase of his trial, calling into question the jury’s sentence of death. See Ward I, 308 Ark. 415,

827 S.W.2d 110. While he was resentenced to death in 1993, this court reversed the sentence

on appeal and remanded again for resentencing because the record could not be settled. See

Ward v. State, 321 Ark. 659, 906 S.W.2d 685 (1995) (per curiam) (Ward II). Ward was

subsequently resentenced to death in 1997; he appealed, and we affirmed. See Ward III, 338

Ark. 619, 1 S.W.3d 1. He also sought postconviction relief pursuant to Arkansas Rule of

Criminal Procedure 37.5, which was denied, and this court affirmed the circuit court’s denial.

See Ward IV, 350 Ark. 69, 84 S.W.3d 863.


                                                8
                                     Cite as 2015 Ark. 60

       Ward now moves this court to recall the mandate in Ward I.5 Ward claims that the

circuit court wrongfully deprived him of assistance by an independent mental-health expert,

who would have concluded that he was incompetent at the time of trial and that he was

unable to meaningfully assist his defense counsel. He asserts that this court’s failure to notice

the circuit court’s error in doing so, during its review of his appeal in Ward I, constitutes a

defect or breakdown in the appellate process warranting a recall of the mandate therein. He

avers that a further breakdown in the appellate process occurred when his appellate counsel

failed to assert the circuit court’s error “or any other claim concerning Mr. Ward’s

competence” in his Ward I appeal. In support of, and relevant to, his motion to recall the

mandate in Ward I, Ward has submitted to this court a lengthy evaluation report, dated

April 2, 2010, by Dr. William S. Logan, as well as an affidavit from Didi Sallings, who

represented Ward along with co-counsel in his 1991 trial. In addition, Ward has submitted

a social-services report and a psychologist’s report that were completed during Ward’s

evaluation at the state hospital in 1989; however, our review of the record in this case does

not reveal that these notes were part of the record reviewed by this court in Ward I.

       In Dr. Logan’s forty-one-page report, he opines that Ward was incompetent to stand

trial in 1990 because he did not have a rational understanding of the proceedings and could

not meaningfully assist counsel in his defense. Dr. Logan states that he conducted a three-

hour psychiatric examination of Ward in 2008 and reviewed a plethora of documents relating


       5
       This court took Ward’s motion as a case, and the parties have now filed briefs for our
consideration.


                                               9
                                    Cite as 2015 Ark. 60

to Ward, including but not limited to, records from his trials, affidavits from his defense

counsel, and records from the Arkansas Department of Correction, as well as Ward’s school

records and military-service records. Dr. Logan concluded that Ward suffers from both

persecutory and grandiose delusions and hallucinations, and demonstrates disorganized speech

and thought processes, which he noted causes Ward’s counsel to have considerable difficulty

communicating with and relating to Ward. Additionally, Dr. Logan found that Ward showed

dysfunction in several areas of functioning, such as being socially isolated, socially

dysfunctional, and neglectful of his personal appearance.

       Dr. Logan opined that Ward’s symptoms had persisted for over six months, citing

concerns raised by his counsel throughout his legal troubles, and he observed that previous

evaluations conducted in Arkansas had been incomplete. Specific to Ward’s 1989 evaluation,

Dr. Logan noted as follows:

       For example, in December 1989, Mr. Ward was found competent to proceed before
       his first 1990 Arkansas trial, but the relevant report stated that Mr. Ward refused to
       cooperate with the evaluators, who were left unable to contact his family and thus, to
       assemble a complete and reliable social history. In addition, the trial court refused to
       provide funding for Mr. Ward to be evaluated by an independent mental health
       expert, not employed at the state hospital.

In concluding that Ward was incompetent to stand trial in 1990, Dr. Logan observed the

following:

       Although examiners at Arkansas State Hospital found Mr. Ward competent to stand
       trial, their examination did not focus on Mr. Ward’s reasoning or mental process, only
       his concrete understanding of his legal situation. Subsequent revelations by Mr. Ward
       reveal considerable paranoid delusional thinking about his 1990 trial and the assistance
       of his attorneys that caused him to believe the verdict was compromised by a
       conspiracy against him in which even his attorneys participated. His thinking in this


                                              10
                                      Cite as 2015 Ark. 60

       regard is consistent with a diagnosis of Paranoid Schizophrenia. While his paranoid
       schizophrenia did not compromise his literal knowledge, the delusional thinking
       characteristic of this disorder did compromise his rational understanding of the
       proceedings, and prevented him from having the ability to meaningfully assist his
       attorney in his defense.

       In conclusion, it is my opinion with a reasonable degree of medical certainty that Mr.
       Ward was suffering from Paranoid Schizophrenia at his 1990 trial and his resulting
       delusional beliefs prevented him from having the ability to understand rationally the
       legal proceedings against him and the ability to assist effectively in his own defense.

       Likewise, Didi Sallings, who helped defend Ward in his initial trial that was the subject

of our review in Ward I, described Ward as increasingly and noticeably paranoid. She stated

that, during the two years she represented and interacted with Ward, she “noticed a marked

and rapid deterioration in his mental health.”          She described Ward as “completely

uncooperative” and “virtually unable to assist in the penalty phase of his trial,” and she further

relayed that Ward precluded his defense team from contacting his parents in regard to his

familial, social, or psychological history.

       In response to Ward’s motion, the State first contends that the essence of Ward’s claim

was already rejected by this court in 2010, when it denied a prior petition seeking to have

jurisdiction reinvested in the circuit court to seek a writ of error coram nobis based on his

claim that he was incompetent at the time of his trial. The State then asserts that Dr. Logan’s

findings should be viewed with “great suspicion” in light of the fact that he examined Ward

only one time and some eighteen years posttrial. But too, the State claims, the issue of Ward’s

competence to stand trial was settled years ago when no diagnosis was made calling into

question his competency; therefore, it maintains, Ward’s competency is not a basis for



                                               11
                                     Cite as 2015 Ark. 60

recalling the mandate in Ward I. Neither, according to the State, is Ward’s claim that he was

entitled to the appointment of an independent mental-health expert. The State posits that

Ward’s right to an examination under Ake was protected when he was evaluated by the state

hospital, because it is independent of both the judiciary and the prosecuting attorney’s office.

Moreover, the State maintains, there was never any showing by Ward that his sanity would

be a factor at his trial; therefore, it claims, this is not a circumstance for which this court

should recall the Ward I mandate.

       This court has recognized the inherent power of an appellate court to recall its

mandate. See Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233. While we have done so, we

have emphasized that the power should be used sparingly as a last resort; it is to be “held in

reserve against grave, unforseen contingencies.” Nooner, 2014 Ark. 296, at 9, 438 S.W.3d

at 240 (quoting Robbins v. State, 353 Ark. 556, 563, 114 S.W.3d 217, 222 (2003)). Because

the recall of a mandate of this court is an extremely narrow remedy, it will “be granted only

in extraordinary circumstances as a last resort to ‘avoid a miscarriage of justice’ or ‘to protect

the integrity of the judicial process.’” Id. at 7, 438 S.W.3d at 239 (quoting Robbins, 353 Ark.

at 563, 114 S.W.3d at 222).

       Recalling a mandate is a discretionary act, or “an act of grace by the state that is not

constitutionally mandated.” Id. at 9, 438 S.W.3d at 240 (quoting Wooten v. Norris, 578 F.3d

767, 784 (8th Cir. 2009)). To ensure that our discretionary act is not exercised arbitrarily, this

court recognizes three relevant factors to be considered when it has been presented with a

motion to recall the mandate in a death-penalty case: (1) the presence of a defect or


                                               12
                                      Cite as 2015 Ark. 60

breakdown in the appellate process; (2) a dismissal of proceedings in federal court because of

unexhausted state-court claims; and (3) the appeal is a death case requiring heightened

scrutiny. See id.; see also Roberts v. State, 2013 Ark. 57, 426 S.W.3d 372. While we do

consider these factors, strict satisfaction of all three factors is not required because this court

has the inherent authority to recall its mandate in extraordinary circumstances. See Nooner,

2014 Ark. 296, 438 S.W.3d 233.

       As already set forth, Ward claims that a defect or breakdown in the appellate process

occurred to warrant a recall of the mandate in Ward I. We have explained that we will recall

a mandate or reopen a case only to address an “error in the appellate process,” meaning “an

error that this court made or overlooked while reviewing a case in which the death sentence

was imposed.” Nooner, 2014 Ark. 296, at 8, 438 S.W.3d at 239 (emphasis in original). Such

an error is to be distinguished from one that should have been raised in the circuit court and

does not fall within one of the exceptions found in Wicks v. State, 270 Ark. 781, 606 S.W.2d

366 (1980), or within our independent review of death cases pursuant to Arkansas Supreme

Court Rule 4-3 and Rule 10 of the Arkansas Rules of Appellate Procedure–Criminal. See

id. Stated more simply, the recall of a mandate is “intended to give this court an opportunity

to address an issue that it should have addressed before.” Engram v. State, 360 Ark. 140, 148,

200 S.W.3d 367, 370 (2004) (emphasis in original omitted). We conclude that Ward has

failed to demonstrate such an error.

       While Ward asserts that this court failed to recognize error on the part of the circuit

court in denying him funds under Ake and forcing him to be tried while mentally


                                                13
                                      Cite as 2015 Ark. 60

incompetent, his argument is simply without any merit. At the conclusion of his competency

hearing, Ward did orally request an independent psychiatric evaluation, asserting that had a

lengthier and more intensive evaluation been conducted, a different diagnosis might have been

had. The circuit court denied that request, ruling that Ward had not presented sufficient

evidence to question the evaluation’s validity.

       We cannot say that the circuit court’s denial of Ward’s oral request was error that this

court should have recognized and addressed in its decision in Ward I. Although Ward did not

cite to Ake at the time of his oral motion, it is in that case that the United States Supreme

Court held as follows: “[W]hen a defendant has made a preliminary showing that his sanity

at the time of the offense is likely to be a significant factor at trial, the Constitution requires

that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot

otherwise afford one.” 470 U.S. at 74. In discussing the Supreme Court’s decision, we have

recognized Arkansas Code Annotated § 5-2-305, which provides the statutory procedures that

are to be followed when the defense of mental disease or defect is raised. See, e.g., Creed v.

State, 372 Ark. 221, 273 S.W.3d 494 (2008). Addressing both the decision and the statute,

we have observed the following:

       We have repeatedly held that a defendant’s right to examination under Ake is
       protected by an examination by the state hospital as provided by this statute. Sanders
       v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), cert. denied, 513 U.S. 1162 (1995); Day
       v. State, 306 Ark. 520, 816 S.W.2d 852 (1991); Coulter v. State, 304 Ark. 527, 804
       S.W.2d 348, cert. denied, 502 U.S. 829 (1991); Wainwright v. State, 302 Ark. 371, 790
       S.W.2d 420, cert. denied, 499 U.S. 913 (1991); Branscomb v. State, 299 Ark. 482, 774
       S.W.2d 426 (1989). An evaluation performed under this section does not normally
       require a second opinion, Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995), and
       further evaluation is discretionary with the trial court. Rucker v. State, 320 Ark. 643,


                                                14
                                      Cite as 2015 Ark. 60

       899 S.W.2d 447 (1995). Stated simply, the State is not required to pay for a defendant
       to shop from doctor to doctor until he finds one who will declare him incompetent
       to proceed with his trial. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). In
       the present case, appellant was examined at the state hospital, and, thus, the
       requirements under Ake were satisfied.

Dirickson v. State, 329 Ark. 572, 576–77, 953 S.W.2d 55, 57 (1997).

       First, there is the fact that Ward did not assert his incompetence to stand trial as a basis

for his oral request for an independent evaluation; to the contrary, he simply stated that an

independent evaluation might yield “a different diagnosis” given more time for the evaluation.

Whether the diagnosis sought would have gone to Ward’s competency to stand trial or sanity

at the time of the offense was never specified or developed by Ward before the circuit court.

But, in addition, Ward was examined at the state hospital; therefore, the requirements of Ake

were satisfied. While he now asserts that he was incompetent to stand trial, the record in

Ward I is simply devoid of any assertion by Ward of his incompetence to stand trial after he

was evaluated by the state hospital. It is patently clear that for this court to have even possibly

overlooked an error, error must have in fact occurred in the first instance.

       In addition to the circuit court’s denial of Ward’s oral motion for an independent

evaluation, the circuit court also denied Ward’s written motion for funds under Ake; however,

the premise of Ward’s motion seeking funds was in no way related to any claim of his

incompetence to stand trial. To the contrary, and as already set forth above, Ward’s Ake

motion specifically requested funds to hire a mental-health professional to assist in developing

mitigation for the penalty phase of Ward’s trial. Ward made no assertion of his need for funds

to seek another opinion on his competence to stand trial, either in his motion or in his


                                                15
                                     Cite as 2015 Ark. 60

arguments to the circuit court. The sole basis for his request for funds, as made clear to the

circuit court, was for assistance in exploring and establishing the existence of potentially

mitigating factors. As was the case with his oral motion for an independent evaluation, Ward

did not assert his incompetence to stand trial as a basis for funds under Ake; therefore, the

error he now asserts could neither have been discovered, nor overlooked, by this court in its

appellate review because the error did not transpire.6

       In the instant case, Ward claims that in its appellate review, this court overlooked the

circuit court’s error in denying him an independent evaluation and forcing him to proceed

to trial while incompetent. The record makes clear, however, that Ward was evaluated by

the state hospital and did not assert his incompetence thereafter as a basis for receiving funds

or an independent evaluation. Because this court cannot have overlooked error that did not

exist, Ward has failed to establish a breakdown in the appellate process that warrants a recall

of the mandate in Ward I. Accordingly, we deny Ward’s motion.

       Motion denied.

        Jennifer Horan, Federal Defender, by: Josh Lee; and Joseph W. Luby, Death Penalty
Litigation Clinic, for petitioner.
        Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for respondent.




       6
         Likewise, Ward’s claim that a defect in the appellate process occurred when his
appellate counsel failed to raise his perceived constitutional error or challenge his
incompetence on appeal fails. While we offer no opinion as to whether Ward’s ineffective-
assistance claim, if meritorious, could even be considered as a breakdown in the appellate
process, it is axiomatic that appellate counsel could not raise on appeal an error that did not
occur.


                                              16
