                                   Cite as 2013 Ark. 450

                SUPREME COURT OF ARKANSAS
                                       No.   CR-12-60

TERRY EDWARD HAYES                                Opinion Delivered   November 7, 2013

                               APPELLANT          APPEAL FROM THE WASHINGTON
                                                  COUNTY CIRCUIT COURT
V.                                                [NOS. CR09-286-1, CR09-1315-1]

STATE OF ARKANSAS                                 HONORABLE WILLIAM A. STOREY,
                                                  JUDGE
                                 APPELLEE
                                                  REMANDED TO SETTLE THE
                                                  RECORD.


                                        PER CURIAM

       This is an appeal from the denial of postconviction relief under Rule 37 of the

Arkansas Rules of Criminal Procedure. Terry Edward Hayes is in the custody of the

Arkansas Department of Correction after being convicted of first-degree terroristic

threatening, felon in possession of a firearm, and intimidating a witness. After a hearing, the

circuit court denied Hayes the relief that he had requested. He filed a notice of appeal from

that ruling. Hayes then filed a motion to reconsider, arguing that the circuit court failed to

rule on a number of points that he had raised. After the motion to reconsider was deemed

denied, Hayes filed a supplemental notice of appeal. He now argues that 1) this case must

be remanded to the circuit court with instructions to rule on claims that it had ignored in

its order and for failing to rule on his motion for reconsideration, and 2) the circuit court

erred in denying him relief due to ineffective assistance of counsel. However, because of

gaps and inconsistencies in the transcript, we are not able to determine whether we have

jurisdiction. We therefore remand this case to settle the record.
                                   Cite as 2013 Ark. 450

       We first recount the procedural history of this case, as it is necessary for us to

determine whether we have jurisdiction. Jurisdiction is a matter that we are obligated to

raise on our own motion. See Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. While the jury

was deliberating during the penalty phase of the trial, Hayes, who had been released on

bond, failed to return to the courtroom. Bond was revoked and a failure-to-appear warrant

was issued. After the jury made its sentencing recommendations, but before the trial judge

formally pronounced sentence, Hayes discharged his trial counsel, Jim Rose. Hayes retained

new counsel, the law firm of Keith, Miller, Butler, Schnieder & Pawlik, who represented

him at formal sentencing and apparently on the pending failure-to-appear charge.

       In the course of their representation of Hayes on the new charge, a psychological

evaluation was requested. The evaluation, dated October 21, 2009, revealed that Hayes

suffered from bipolar disorder, severe depression, and alcohol dependence, and psychiatrist

Robin Ross opined that as of that date, Hayes “lacked the capacity to assist effectively in his

own defense.” Hayes’s new counsel filed a motion for a new trial, which the circuit court

denied without a hearing. Hayes timely filed a notice of appeal.

       The Arkansas Court of Appeals affirmed in part and reversed in part Hayes’s

conviction. Hayes v. State, 2011 Ark. App. 79, 381 S.W.3d 117. The court of appeals held

that the court-ordered psychological evaluation of Hayes, conducted on October 21, 2009,

was evidence of his lack of competence at the time of his trial, which concluded on

September 24, 2009, and thus, the trial court erred in failing to hold a hearing on his motion

for a new trial. Id. The case was reversed and remanded to the trial court.


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         Based on the record before us, what happened next is not entirely clear. The circuit

court docket sheet found in the transcript, but not in Hayes’s brief, reflects that on February

24, 2011, the court of appeals mandate issued, affirming in part and reversing in part and

remanding the case to the circuit court. On March 9, 2011, the circuit court entered an

order.    It is listed as “ORDER GRANTING DEFS MOTION TO W/DRAW

MOTIONS FOR A NEW TRIAL & MOTIONS FOR A NEW TRIAL ARE

DENIED.” This order does not appear in the transcript. Nonetheless, on April 25, 2011,

Hayes’s appellate counsel, Jeff Rosenzweig, who is also Hayes’s Rule 37 counsel, filed a

Rule 37 petition, in which he stated that “Hayes ceased his appeal in these cases.” However,

in the circuit court’s order denying Rule 37 relief, the circuit court recites that “Defendant

appealed his convictions to the Arkansas Court of Appeals and after review, the convictions

were affirmed.” Regardless of whether Hayes made a knowing and intelligent waiver of his

right to further proceedings pursuant to the court of appeals mandate, the circuit court’s

finding is not supported by any court proceeding that appears in the transcript. Likewise the

issue of appellant’s competence is not addressed in the Rule 37 petition.

         Arkansas Rule of Criminal Procedure 37.2(a) provides that no proceeding under the

rule shall be entertained while the direct appeal of a judgment is pending. The court of

appeals remanded the case to address certain issues. However, the record fails to reflect the

proceedings or findings of fact resolving the issues raised on remand. Absent a complete

record of the circuit court’s actions on remand, we are unable to determine whether we may

exercise jurisdiction to proceed under Rule 37.2. Therefore, we remand for the circuit


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court to make specific findings and to settle the record. Appellant is directed to file a

supplemental record with any motions, responses, and orders, along with a transcript of any

hearing that is held pursuant to this order. The clerk is directed to set a schedule for the

parties’ substituted briefs.

       Remanded to settle the record.

       Jeff Rosenzweig, for appellant.

       Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.




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