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                SUPREME COURT OF ARKANSAS
                                       No.   CV-14-470

                                                  Opinion Delivered   May 14, 2015

RAY HOBBS, DIRECTOR,                              APPEAL FROM THE LEE COUNTY
ARKANSAS DEPARTMENT OF                            CIRCUIT COURT
CORRECTION                                        [NO. 39CV-13-82]
                   APPELLANT
                                                  HONORABLE L.T. SIMES II, JUDGE
V.

AARON HODGE
                                 APPELLEE         REVERSED AND REMANDED.



                       JOSEPHINE LINKER HART, Associate Justice

       Ray Hobbs, the Director of the Arkansas Department of Correction (the State), appeals

from an order granting habeas-corpus relief to Aaron Hodge. Hodge was convicted of capital

murder for the shooting deaths of his mother, Barbara Flick, his stepfather, David Flick, and

his half-sister, Andria Flick, in their home at Rector. Hodge was sentenced to life

imprisonment without parole. Hodge v. State, 332 Ark. 377, 382, 965 S.W.2d 766, 768 (1998).

Hodge later sought habeas-corpus relief, and following a hearing at which no evidence was

presented, the court granted relief to Hodge, concluding that he was entitled to relief under

Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012). The State argues that the circuit court

erred in granting him relief because Miller is inapplicable. Further, the State argues that the

court erred in granting Hodge relief without making a finding of probable cause and following

the procedures outlined in our habeas-corpus statutes. After considering the latter point, we
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reverse and remand the circuit court’s decision without addressing the applicability of Miller.

       In his habeas-corpus petition, Hodge cited Miller v. Alabama, ___ U.S. ___, 132 S. Ct.

2455 (2012), where the United States Supreme Court held that a mandatory sentence of life

imprisonment without parole for those under the age of eighteen at the time the juvenile

committed a homicide crime violated the Eighth Amendment’s prohibition on cruel and

unusual punishments. Hodge attached to his petition a certified copy of an amended judgment

and commitment order reflecting that Hodge’s date of birth is April 19, 1978, and that the

offense date for the capital murder was October 8, 1995, making him, according to the order,

seventeen years old at the time he committed the homicides. Hodge argued that Miller should

be retroactively applied to his case.

       Citing Arkansas Code Annotated section 16-112-103(a)(1) (Repl. 2006), the State

asserted that it was not required to file a “return,” unless the circuit court first found that the

petition showed “by affidavit or other evidence, probable cause to believe he or she is detained

without lawful authority.” The State presented what it described as a “memorandum of

authorities to assist the Court in that determination.” The State argued that Hodge’s claim was

not cognizable under Arkansas’s habeas-corpus statutes and that, even if his claim was

cognizable, he was not entitled to relief because Miller did not apply retroactively.

       The circuit court entered an order directing the sheriff of Lee County to take custody

of Hodge from the Department of Correction and bring Hodge to the hearing. The court’s

order further stated that, “[a]lternatively, should the Department so prefer, it may itself

undertake to transport Inmate Hodge to and from the hearing.” A hearing was held at which


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the court jointly considered a petition filed by James Grubbs, who was also represented by

Hodge’s counsel.1 Hodge’s counsel presented argument to the court on behalf of Hodge and

Grubbs, but no evidence was submitted to the circuit court. The court asked the attorneys for

the State whether there was a dispute regarding whether either Hodge or Grubbs was under

the age of eighteen at the time of the offense, and the State replied, “[I]f we ultimately say it

was acceptable in a probable-cause hearing, we would want to have a certified vital record

proving their age. But, ultimately, we do believe that they were underage at the time.”

       The court requested posthearing briefs and proposed orders from both parties. In a

response to both Hodge’s and Grubbs’s petition, the State again cited Arkansas Code

Annotated section 16-112-103(a)(1), and stated that “it must be emphasized that the only

question presently before the Court is whether petitioners’ applications for the writ sufficiently

demonstrate probable cause to believe they are confined in the penitentiary without lawful

authority.” The State argued in its brief that because their Miller claims were not cognizable

and because Miller is not retroactively applicable, Hodge and Grubbs had not demonstrated

probable cause to issue the writ and that their petitions should be dismissed.

       The circuit court entered an order vacating Hodge’s sentence of life imprisonment

without parole and remanded the matter to the Craighead County Circuit Court for

resentencing proceedings. The court found that Hodge was convicted of homicides committed

before he attained the age of eighteen years and that he received a mandatory sentence of life

imprisonment without parole. The court concluded that Miller applied retroactively and that


       1
        Today, we also address the appeal of Hobbs v. Grubbs, 2015 Ark. 205.
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“habeas corpus is the proper procedural remedy.” We note, however, that the circuit court did

not make a specific ruling on probable cause to issue the writ.

       On appeal, the State argues that the circuit court erred when it found that Miller

retroactively applied. Further, the State contends that the court erred because it issued its order

granting habeas relief without first making a finding of probable cause or otherwise following

the procedures set out in our habeas-corpus statutes. In response to this latter point, Hodge

argues that he demonstrated probable cause by attaching a certified judgment-and-commitment

order to his petition showing his date of birth and the date of the offense and that the State’s

pleadings constituted a “return.” He notes that the circuit court entered an order directing the

Lee County Sheriff to take custody of Hodge and bring him to the hearing and that the court

conducted a hearing at which attorneys for the State—Hodge’s custodian—were present. He

asserts that the court made a finding of probable cause and issued the writ by virtue of the

order requiring his presence at the hearing and in its subsequent order granting him relief.

       We conclude that the State’s argument on this latter point is dispositive of this case.

Here, the circuit court did not make a specific finding of probable cause or otherwise conduct

other proceedings required by our habeas-corpus statutes. Those statutes provide that the “writ

of habeas corpus shall be issued, served, and tried in the manner prescribed by this chapter.”

Ark. Code Ann. § 16-112-101 (Repl. 2006). The “writ of habeas corpus shall be granted

forthwith . . . to any person who shall apply for the writ by petition showing, by affidavit or

other evidence, probable cause to believe he or she is detained without lawful authority.” Ark.

Code Ann. § 16-112-103(a)(1). The writ is “directed to the person in whose custody the


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prisoner is detained, and made returnable as soon as may be.” Ark. Code Ann. §

16-112-105(b)(1) (Repl. 2006). The person on whom the writ is served has the duty to “bring

with the writ all and every examination and information in his or her hands, possession,

custody or charge, relating to the commitment.” Ark. Code Ann. § 16-112-109(a) (Repl.

2006). The “party brought before any court or judge, by virtue of any writ of habeas corpus,”

may then “deny the material facts set forth in the return, or allege any fact to show either that

his or her detention or imprisonment is unlawful, or that he or she is entitled to his or her

discharge.” Ark. Code Ann. § 16-112-113(a) (Repl. 2006). Finally, the “judge before whom

the writ is returned, after hearing the matter, both upon the return and any other evidence,

shall either discharge or remand the petitioner, admit the prisoner to bail, or make such order

as may be proper.” Ark. Code Ann. § 16-112-115 (Repl. 2006).

       This case is analogous to Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. There,

Gordon sought habeas-corpus relief, likewise arguing that he was entitled to it under Miller.

Gordon alleged that his judgment and commitment order incorrectly stated his date of birth,

and Gordon appended a certified copy of his birth certificate to his petition to support the

allegation that he was a juvenile at the time he committed capital murder. As in this case, the

State filed a response in which it asserted that it was not required to file a return until the

court first made a determination of probable cause. The circuit court, however, granted

Gordon’s petition, vacated Gordon’s sentence, and reinvested jurisdiction in the circuit court

that rendered the judgment and commitment order for Gordon to be resentenced. The State

argued on appeal that the circuit court failed to follow the mandatory procedures of our


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habeas statutes, failed to issue the writ to the State, and erroneously granted relief from the

underlying commitment. This court observed that the record demonstrated that the circuit

court issued the writ but that it did not make a finding of probable cause to issue the writ. This

court held, “Although the circuit court may have implicitly found that Gordon’s petition

evidenced probable cause to issue the writ, the record demonstrates that a probable cause

finding was not made. Our habeas statutes make clear that the circuit court must first make this

probable-cause finding prior to moving forward with the remaining habeas procedures.”

Gordon, 2014 Ark. 225, at 10–11, 434 S.W.3d 364, 370. This court then concluded that a

“determination of whether probable cause is shown must be made for the circuit court to issue

the writ,” and the court remanded the case to the circuit court for findings and any further

proceedings required by the habeas statute. Id. at 11, 434 S.W.3d at 370.

       Here, as in Gordon, the State filed a response stating that it was not required to file a

return until a probable-cause determination was made. Like the circuit court in Gordon, the

court in this case made no express finding of probable cause and did not otherwise require the

State to provide a return. As argued by the State, and in accordance with Gordon, rather than

vacating Hodge’s sentence of life imprisonment and remanding for resentencing, the circuit

court first should have made a probable-cause finding. Furthermore, as argued by the State, the

circuit court failed to conduct the other proceedings mandated by our habeas-corpus statutes.

If the court had concluded that there was probable cause, the court would have then issued a

writ directed to the person in whose custody Hodge is detained. Hodge’s custodian would

have been required to make a return of the writ, and Hodge would have been able to deny the


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return. After hearing the matter, the court would then decide whether Hodge was entitled to

a discharge. Thus, we reverse and remand for proceedings consistent with this opinion.

Because we have reversed and remanded on this point, we do not address the remaining

arguments made by the State.

       Reversed and remanded.

       WOOD and WYNNE, JJ., dissent.

       RHONDA K. WOOD, Justice, dissenting. The majority has reversed and remanded

without ruling whether Miller v. Alabama applies retroactively. The basis for the majority’s

decision is our opinion in Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. I dissent because

Gordon does not control this case.

       In Gordon, there was a legitimate dispute as to the petitioner’s age at the time of the

offense. The age listed on his birth certificate was different from the age listed on his judgment

and commitment order. Gordon, 2014 Ark. 225, at 2, 434 S.W.3d at 365–66. If the former age

was accurate, the petitioner was entitled to relief; if the latter age was accurate, he was not. The

circuit court, however, without addressing this discrepancy, granted substantive relief in the

form of resentencing.

       But in this case there is no dispute about the petitioner’s age. No party has asserted that

the age listed on the judgment and commitment order was inaccurate, nor were there

competing birth dates. In addition, the State essentially conceded at the hearing that the

petitioner was underage when he committed his crimes:




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       COURT:                Is there a dispute regarding the fact that . . . Grubbs1 and
                             Hodges [sic] were under the age of eighteen at the time of
                             the offense? Is that disputed? Mr. Rosenzweig says it’s not
                             disputed.

       STATE:                Well, if we ultimately say it was acceptable in a probable cause
                             hearing, we would want to have a certified vital record
                             proving their age. But, ultimately, we do believe that they
                             were underage at the time.

       This is much different from Gordon, where the parties contested the petitioner’s age

with two competing documents. Here, no documents suggested an age discrepancy. Moreover,

everyone at the hearing in front of the circuit court, from the State to the petitioners, thought

the only issue the court had to decide was whether Miller applied retroactively; the circuit

court addressed this issue in its order; and unlike Gordon, the State never filed a motion for

reconsideration after that order was entered. I would therefore address the merits of this appeal

and decide whether Miller applies retroactively.

       WYNNE, J., joins.

       Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellant.

       D’Lorah L. Hughes; and Jeff Rosenzweig, for appellee.




       1
        The circuit court considered petitions from both Hodge and James Grubbs at the
same hearing. See Hobbs v. Grubbs, 2015 Ark. 205.
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