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                  SUPREME COURT OF ARKANSAS
                                        No.   CR-15-417


   KARL D. ROBERTS                                Opinion Delivered March   17, 2016
                                APPELLANT
                                                  APPEAL FROM THE POLK
   V.                                             COUNTY CIRCUIT COURT
                                                  [NO. CR-1999-70]
   STATE OF ARKANSAS
                                   APPELLEE HONORABLE J.W. LOONEY,
                                            JUDGE

                                                  REVERSED AND REMANDED.


                          RHONDA K. WOOD, Associate Justice

          Karl Roberts appeals the circuit court’s finding that he has the capacity to choose

between life and death and to knowingly and intelligently waive his right to postconviction

relief.    He also asserts that mandatory review should be extended to postconviction

proceedings in capital cases and that a rejection of his attempt to rescind his waiver violates

the “solid footing” doctrine. We hold that the circuit court erred when it found that

Roberts has the capacity to choose between life and death and could make a knowing and

intelligent waiver; accordingly, we reverse and remand.

                                       I.      Background

          In May 2000, Roberts was convicted of capital murder and sentenced to death for

the murder of his twelve-year-old niece. Following his conviction, Roberts filed a waiver

of appeal and of postconviction review. A hearing was held on the waiver, and the circuit

court found that Roberts had the capacity to knowingly and intelligently waive his appeal
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rights. This court conducted an automatic review pursuant to State v. Robbins, 339 Ark. 379,

5 S.W.3d 51 (1999), and affirmed Roberts’s waiver of his right to appeal, as well as his

conviction and sentence. Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003).

       In May 2003, the circuit court held a hearing pursuant to Arkansas Rule of Criminal

Procedure 37.5 (2015). At the hearing Roberts appeared pro se and again waived his right

to seek postconviction relief. The circuit court concluded that he had the capacity and the

competency to knowingly and intelligently waive his right to postconviction relief. This

court reviewed the record of Roberts’s Rule 37.5 waiver hearing and affirmed the circuit

court’s findings. See Roberts v. State, 354 Ark. 399, 123 S.W.3d 881 (2003).

       Then, in January 2004, the day of his scheduled execution, Roberts moved for a stay

of execution in the United States District Court for the Eastern District of Arkansas, which

was granted. In July 2004, Roberts filed a writ of habeas corpus with the federal district

court, but in 2007, the federal district court granted Roberts’s request to hold the federal

habeas corpus petition in abeyance, directing Roberts to seek relief in the state courts

regarding all unexhausted claims. The federal habeas petition is currently stayed for Roberts

to be given an opportunity “to convince the state courts that he did not competently waive

his right to appeal and seek state post-conviction relief” and “to seek relief in the state courts

under Rule 37.5 regarding all unexhausted claims.” See Roberts v. Norris, 526 F. Supp. 2d

926 (E.D. Ark. 2007).

       Thereafter, Roberts filed an untimely Rule 37.5 petition and an amended

postconviction petition, which the circuit court denied. In January 2012, Roberts filed a
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motion to reopen the proceedings and reinvest the circuit court with jurisdiction. Roberts

v. State, 2013 Ark. 57, 426 S.W.3d 372. We granted Roberts’s motion and held that a more

recent competency evaluation of Roberts was required to adequately determine his

competency to elect execution and waive postconviction remedies. Id. Roberts was

subsequently evaluated, and the circuit court held a hearing to determine whether Roberts’s

waiver of his postconviction appeals was made knowingly and intelligently and with the

capacity to choose between life and death. It concluded that Roberts was competent and

had the capacity to waive his postconviction rights. Accordingly, the circuit court dismissed

Roberts’s petition for postconviction relief. Roberts now appeals the circuit court’s decision

regarding competency and capacity.

                                        II.     Analysis

       Roberts asserts several bases on which we should reverse the circuit court. Roberts

first contends that the circuit court failed to make “sufficient findings of fact and conclusions

of law sufficient to allow for meaningful appellate review.” He alleges, in the alternative,

that the circuit court’s conclusion that he is competent to knowingly and intelligently waive

all rights to postconviction relief and has the capacity to choose between life and death is

clearly erroneous and that the circuit court substituted its opinion for that of the experts

who testified at the postconviction hearing. Roberts also argues that this court should

establish a mandatory postconviction proceeding and review for death-penalty defendants

who waive their postconviction rights. Finally, he claims that this court should reverse the

circuit court’s acceptance of Roberts’s waiver under the “solid footing” doctrine.
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       We must determine preliminarily whether the circuit court issued sufficient findings

to allow for meaningful appellate review. We conclude that it did. As he does on appeal,

Roberts raised six points in his prehearing brief: (1) whether Roberts is incompetent to

waive under Rees v. Peyton, 384 U.S. 312 (1966); (2) whether Roberts’s waiver is illness

driven and thus involuntary; (3) whether Roberts is incompetent under Franz v. State, 296

Ark. 181, 754 S.W.2d 839 (1988); (4) whether Roberts’s waiver is not “knowing” and

“intelligent”; (5) whether the waiver should be disallowed under the “solid footing”

doctrine; and (6) whether the court should require mandatory postconviction review.

However, the first four points all address the issue of whether Roberts was competent to

waive his postconviction rights.

       When a petition for postconviction relief is denied following a hearing, Arkansas

Rule of Criminal Procedure 37.5(i) requires that the court “make specific written findings

of fact with respect to each factual issue raised by the petition and specific written

conclusions of law with respect to each legal issue raised by the petition.”        Absent such

findings, there can be no meaningful appellate review because the court determines whether

the findings are supported by a preponderance of the evidence. See Charland v. State, 2012

Ark. 246.

       Albeit concise, the circuit court’s findings sufficiently specify the basis for its ruling.

With regard to the first four issues raised in Roberts’s brief, the circuit court’s order denying

postconviction relief states that it considered the testimony and reports of Dr. Mark Peacock

and Dr. Daryl Fujii, Roberts’s letter to Judge Richard Kopf, Roberts’s letter to the circuit
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court, and affidavits of various people who had assisted in Roberts’s defense. It applied the

standard of competency this court outlined in Roberts v. State, 2013 Ark. 57, 426 S.W.3d

372, and concluded that Roberts “is competent to knowingly and intelligently waive all

rights to post conviction relief and has the capacity to choose between life and death (i.e.,

elect execution) and to forego representation.” We conclude that this sufficiently addressed

the first four issues raised by Roberts, all of which fall under the umbrella of waiver. In

addition, the circuit court adequately addressed Roberts’s remaining arguments by finding

that they were inapplicable and moot, respectively. 1

       Turning to the merits, although Roberts divides the issue of competency into

separate points, the crux of his appeal is whether he is competent to waive his postconviction

remedies. The standard for competency to elect execution is not equivalent to the standard

for competency to stand trial. Roberts, 2013 Ark. 57, at 11, 426 S.W.3d at 378. “[A]

defendant sentenced to death will be able to forego a state appeal only if he has been

judicially determined to have the capacity to understand the choice between life and death


       1
          In his dissent, Chief Justice Brill claims that due to the special nature of death
penalty cases, we should reverse and remand with instructions to the circuit court. Due to
the special nature of death cases, this is precisely why we are affording the defendant the
relief requested. The dissent also fails to detail the “instructions” it would give to the circuit
court. Presumably, the Chief Justice’s dissent would direct this circuit court that now has a
different judge who did not preside over the competency hearing, to review the same
evidence and testimony examined by this court and engage in the hollow exercise of
composing another order with additional reasons for Judge Looney’s finding of competency.
Or worse yet, the dissent would allow the circuit court to conduct a rehearing on
competency, giving the State, in a death case, a second chance to present its evidence. Either
scenario would only further delay justice, and frustrate the parties and process in this death
penalty case.
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and to knowingly and intelligently waive any and all rights to appeal his sentence.” Franz,

296 Ark. 181, 754 S.W.2d 839, overruled on other grounds by State v. Robbins, 339 Ark. 379,

5 S.W.3d 51 (1999). This is the standard that governs the waiver of rights to postconviction

remedies following the affirmance of a death sentence, and we will reverse only if we find

that the trial judge’s conclusion is clearly erroneous. Id. 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 made. Sartin

v. State, 2012 Ark. 155, 400 S.W.3d 694.

          At the competency hearing in the circuit court, both parties presented testimony

from psychological experts. The experts agreed that Roberts suffers from schizophrenia.

Thus, the pertinent inquiry is whether this mental disease renders Roberts incapable of

choosing between life and death or knowingly and intelligently waiving his postconviction

rights.

          The State’s expert, Dr. Mark Peacock, testified that he diagnosed Roberts with

schizophrenia with themes of auditory and visual hallucinations and delusional beliefs. On

direct examination, Dr. Peacock testified that there are varying degrees of schizophrenia and

that this diagnosis does not necessarily mean that the person is incompetent to make a

rational decision. However, when asked if Roberts was competent to make a decision

whether to live or die, Dr. Peacock failed to reach an ultimate conclusion. He stated,

          [I]t’s a very difficult call for me just because there were elements of both psychotic
          reasoning involved in what I believe was going on with Mr. Roberts’ decision as
          well as some very overtly stated, rational sounding reasons for why he would want
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       to waive his [proceedings] . . . And whether one or the other amount to what I guess
       a preponderance of evidence was a call that I just didn’t feel qualified or competent
       enough to make at that time.

On cross-examination, Dr. Peacock conceded that the psychotic symptoms from which

Roberts suffers influence his desire to waive and that his thoughts and decision making are

colored by his psychotic experiences. Peacock further admitted that Roberts’s symptoms

raised a significant concern about his capacity for making rational and stable decisions about

matters as permanent as death.

       Roberts presented the testimony of a neuropsychologist, Dr. Daryl Fujii. Like Dr.

Peacock, Dr. Fujii stated that he noticed symptoms of schizophrenia, including auditory

hallucinations and delusions, during his interview with Roberts. Dr. Fujii testified that

while Roberts understands the implication of waiving his postconviction rights and can offer

some rational-sounding reasons for waiver, Roberts’s reasoning is ultimately tainted by his

schizophrenic symptoms. He explained that much of Roberts’s thinking about how to

proceed is clouded by his psychosis. Therefore, in his opinion, Roberts does not have the

capacity to choose between life and death or to make a knowing and intelligent waiver of

his appellate rights.

       Accordingly, both experts testified that Roberts’s mental illness affects his ability to

make a rational decision about waving his postconviction rights. Although Dr. Peacock

refused to offer an opinion on the specific inquiry as to whether Roberts is competent, his

remaining testimony suggests that Roberts’s psychosis indeed impacts his ability to choose

between life and death and knowingly and intelligently waive his postconviction rights.
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       The other evidence presented to the circuit court does not compel an alternative

conclusion. Indeed, the only remaining evidence presented which might support a finding

of competency are Roberts’s letters to the circuit court and to the federal district court in

which he asserts his desire to waive. Yet, as Dr. Peacock testified, Roberts’s auditory

hallucinations may affect the content of his letters since he frequently hears voices when he

writes. Despite our belief that the trial court is in the best position to assess credibility and

weigh the evidence, in this case we are left with a firm conviction that a mistake has been

made. We hold that the circuit court was clearly erroneous when it concluded that Roberts

was competent to waive postconviction review. 2 The evidence before the circuit court

evinces that it is undeniable that Roberts suffers from schizophrenia, that these symptoms

of his psychological disorder clearly impact his ability to choose between life and death and

to knowingly and intelligently waive his appeal rights, and the State’s own expert could not

conclusively find that Roberts’s rational reasoning was greater than his psychotic reasoning

for waiving his appeal rights. We, therefore, reverse and remand to the circuit court for

postconviction proceedings under Arkansas Rule of Criminal Procedure 37.5.




       2
          Chief Justice Brill’s dissent claims that in so holding this court “engages in fact-
finding that is within the exclusive province of the circuit court.” However, it is the duty
of this court to review the circuit court’s fact-finding for error, particularly in death penalty
cases, which as the dissent admits, are different from other criminal cases due to the finality
of the punishment. Indeed, issues of competency are of utmost importance in death penalty
cases, and the circuit court’s fact-finding is not immune from review. See Newman v. State,
2014 Ark. 7; Harris v. State, 238 Ark. 780, 384 S.W.2d 477 (1964).
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       Roberts makes two additional arguments on appeal. First, he argues that we should

extend the “Robbins review,” which requires mandatory appellate review regardless of

whether the defendant waives his right to direct appeal, and require mandatory Rule 37.5

review in all capital cases. See Robbins, 339 Ark. 379, 5 S.W.3d 51. While we are not

inclined to depart from our current procedure, we are mindful of the extraordinary amount

of time it has taken for this case to reach a conclusion, the gravity of the sentence, and the

impact the lack of finality has had on the parties, particularly the victim’s family. For this

reason, we refer to the Committee on Criminal Practice for its review and consideration

the issue of whether postconviction proceedings under Arkansas Rule of Criminal

Procedure 37.5 should be mandatory and not subject to waiver.

       Second, Roberts asserts that the circuit court’s acceptance of his waiver violates the

“solid footing” doctrine outlined in Porter v. State, 332 Ark. 186, 188, 964 S.W.2d 184, 185

(1998). The circuit court concluded that this issue was inapplicable given its finding that

Roberts was competent. Because we now have reversed the circuit court’s finding that

Roberts was competent, this issue does not require our consideration on appeal.

       Reversed and remanded.

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

       HOWARD W. BRILL, Chief Justice, dissenting. Because the circuit court did not

make adequate written findings of fact and conclusions of law on Roberts’s competency to

waive his postconviction proceedings, I respectfully dissent. Accordingly, I would reverse

and remand with instructions.
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                                            I. Facts
       The following facts are critical to my analysis and largely overlooked by the majority.

In Roberts v. State, 2013 Ark. 57, 426 S.W.3d 372, this court granted Roberts’s motion to

reopen proceedings and reinvest the circuit court with jurisdiction to determine Roberts’s

competency to waive his postconviction rights because the circuit court had previously

relied on mental-health evaluations that were over three years old. We reopened the

proceedings and held that the circuit court had failed to make a proper determination

regarding Roberts’s competency to waive his rights to postconviction relief. Id.

       Roberts filed a petition for postconviction relief and a substituted petition in which

he made seventeen claims of ineffective assistance of counsel. After filing a verified Rule

37 petition in the circuit court, Roberts purported to waive postconviction review. Before

the circuit court’s hearing on the Rule 37 petition, Roberts filed a prehearing brief

requesting specific findings of fact and conclusions of law on the following six points: (1)

whether his incompetency to waive under Rees v. Peyton, 384 U.S. 312 (1966) (per curiam)

(establishing a two-prong inquiry when a death-sentenced defendant seeks to waive

postconviction remedies); (2) whether his waiver was illness-driven and thus involuntary;

(3) whether he was incompetent based on this court’s standard articulated in Franz v. State,

296 Ark. 181, 754 S.W.2d 839 (1988) (adopting the Arkansas standard for a death-sentenced

defendant who seeks to waive any and all rights to an appeal) (overruled on other grounds);

(4) whether he made his waiver knowingly and intelligently; (5) whether his waiver should




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be disallowed based on the solid-footing doctrine; and (6) whether this court should require

a mandatory review of postconviction proceedings.

       On September 18, 2013, the circuit court conducted a hearing to determine how

Roberts wished to proceed. At the hearing, the circuit court stated that Roberts’s counsel

presented to the court copies of correspondence, dated May 10, 2013, that Roberts had sent

to United States District Judge Richard Kopf purporting to waive his postconviction

proceedings. The circuit court stated that Roberts would take the stand to answer questions

about the May 10, 2013 letter and to indicate to the court “what his wishes [were] and how

he wishe[d] to proceed.” After the circuit court and counsel had the opportunity to ask

Roberts questions about his letter to Judge Kopf, the circuit court ruled that, per our

directive in Roberts, 2013 Ark. 57, 426 S.W.3d 372, Roberts must undergo a current

evaluation for the circuit court to make a determination of whether he had made a knowing

and intelligent waiver of Rule 37 proceedings.

       On December 29, 2014, the circuit court held a hearing on Roberts’s competency

to waive further postconviction relief. At the hearing, Dr. Mark Peacock, a forensic

psychologist from the Arkansas State Hospital, testified that he had conducted an evaluation

of Roberts on January 29, 2014. Dr. Peacock testified that Roberts produced two clinical

scale elevations in depression and suicidality and that Roberts had been diagnosed with

schizophrenia. Dr. Peacock also testified that Roberts seemed suspicious at times during

the interview and that Roberts had experienced hallucinations but that he appeared



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adequately groomed and “could discuss things rationally at times.” According to his

evaluation report, Dr. Peacock concluded that

       Roberts expressed and discussed both rational and irrational bases to his
       decision for seeking a waiver of further postconviction relief and legal
       representation. His basic factual appreciation for the appeals process and bases
       for an appeal were intact and he was able to provide strong reasons, and [sic]
       which did not appear grossly colored by mental illness, for not desiring any
       further pursuit of relief in his case and for being put to death. However, he
       also discussed a desire to halt the daily harassment and personal monitoring by
       prisoners and prison staff as a factor in his decision to seek a waiver and such
       experiences were described in a manner strongly indicative of active psychotic
       illness and irrationality. He also expressed some ambivalence about being put
       to death, and has obviously wavered in his desire to receive death or appeal
       in the past. Thus, concerns about the capacity for rendering rational and stable
       decisions for a matter of permanence—such as waiving the right to
       postconviction review of his case and that would lead to imposition of
       death—were raised by his presentation.

       Further, Roberts offered the testimony of Dr. Daryl Fujii concerning two evaluations

that he conducted on October 17, 2011, and October 28, 2013. Dr. Fujii testified that he

met with Roberts for three hours in October 2013 and that his diagnosis of schizophrenia

remained the same as that in October 2011. Dr. Fujii stated, “In my opinion as a clinician,

I think at this point Karl does not have the capacity to choose between life and death. His

thinking is definitely impacted by his schizophrenia. I would say at this point, Karl is not

able to make a knowing and intelligent waiver of any further appeals.”

       Following the evidentiary hearing, the circuit court considered the experts’

testimony and reports, as well as Roberts’s numerous items of correspondence, and entered

an order accepting Roberts’s waiver of postconviction proceedings and dismissing Roberts’s

Rule 37 petition and substituted petition. Specifically, the circuit court issued a two-page
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order in which it recounted the facts of the case, the evidence that included the specific

testimony of the two expert witnesses, and ruled,

              After considering all relevant testimony and evidence and after
       applying the test of competency mandated by the Arkansas Supreme Court,
       the court finds that the Defendant, Karl Roberts, is competent to knowingly
       and intelligently waive all rights to postconviction relief and has the capacity
       to choose between life and death (i.e., to elect execution) and to forego
       representation. He has made that waiver clear by his letter filings in this court,
       which were cogent and unequivocal, and by his testimony of September 16,
       2013.

Shortly after the circuit court entered this order, Circuit Judge J.W. Looney left the bench.

       Subsequently, Roberts filed a motion for rulings on omitted issues and requested the

circuit court to modify its order to include the specific findings of fact and conclusions of

law that he presented in his prehearing brief. Circuit Judge Jerry Ryan then issued a letter

order, stating that, based on the December 29, 2014 order, “all issues were addressed or are

moot,” and that the order

       tracks the directive of the Arkansas Supreme Court in Roberts v. State, 2013
       Ark. 57. The court’s order includes specific findings related to items 1-4
       raised in the pre-hearing brief. Given the finding of competency and Mr.
       Robert’s [sic] waiver, item 4 has no application and item 5 is moot.

                                     II. Rule 37 Analysis

       This court has stated that Rule 37.5(i) sets out the postconviction procedures for

death-penalty cases. Decay v. State, 2013 Ark. 185, at 1–2. Subsection (i) provides in part

that the circuit court shall “make specific written findings of fact with respect to each factual

issue raised by the petition and specific written conclusions of law with respect to each legal

issue raised by the petition.” Ark. R. Crim. P. 37(i) (2015). In Echols v. State, 344 Ark.
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513, 519, 42 S.W.3d 467, 470 (2001), this court held that this provision imposes a “more

exacting duty” on the circuit court than that found in Arkansas Rule of Criminal Procedure

37.3(c), which provides postconviction procedures for non-death-penalty cases. Under

Rule 37.5(i), it is the petitioner who determines the issues that must be addressed by the

circuit court in a written order, while Rule 37.3(c) provides that the circuit court is to

determine the issues and then make specific written findings of fact and conclusions of law

with respect to those issues. Id., 42 S.W.3d at 470. Significantly, in Wooten v. State, 338

Ark. 691, 1 S.W.3d 8 (1999), this court stated,

               Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code
       Ann. §§ 16-91-201 to -206 (Supp. 1999), where the General Assembly
       expressly noted that the intent of the Act is to comply with federal law by
       instituting a comprehensive state-court review. See section 16–91–204; Porter v.
       State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a
       meaningful state review is to eliminate the need for multiple federal habeas
       corpus proceedings in death cases. Id. . . . [W]e believe that the intent and
       purpose of that rule reinforces the responsibility of the trial court to make
       specific written findings and conclusions of law on each issue raised in the
       petition.

Wooten, 338 Ark. at 695–96, 1 S.W.3d at 10–11 (emphasis added). In my opinion, Rule

37.5 applies to competency-to-waive proceedings that arise in death-penalty postconviction

proceedings.

       In the instant case, the majority opinion is fatally flawed for three reasons: (1) it

ignores the mandatory language of Rule 37.5(i) requiring a circuit court to make “specific

written findings of fact” and “specific written conclusions of law”; (2) this court cannot

make a meaningful appellate review without those specific findings, particularly in death-

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penalty cases; and (3) it confuses the roles between the appellate and circuit courts by

engaging in fact-finding that is within the exclusive province of the circuit court.

       First, the circuit court’s findings are conclusory at best and do not comply with Rule

37.5. Given the two-sentence ruling contained in the two-page order, the circuit court

failed to provide any meaningful analysis of the six issues that Roberts presented to the

circuit court before his competency-to-waive hearing. Without this analysis and specific

written findings of fact and conclusions of law, I do not know the circuit court’s rationale

for its finding of competency, particularly in light of the Rees and Franz cases. Because the

circuit court provided merely conclusory rulings, we cannot engage in any meaningful

review of Roberts’s competency to waive postconviction proceedings.

       Second, this court, similar to the Supreme Court of the United States, has recognized

that death-penalty cases are different from other criminal cases due to the obvious finality

of the punishment. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); Echols, 344 Ark. 513,

42 S.W.3d 467; Am. Civ. Liberties Union v. State, 339 Ark. 314, 5 S.W.3d 418 (1999); Franz,

296 Ark. 181, 754 S.W.2d 839; State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999).

Consequently, this court’s appellate review of death-penalty cases has always been more

comprehensive than in other cases. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106

(1977). Because Rule 37.5(i) requires a “more exacting duty” of the circuit court to make

specific written findings of fact and specific written conclusions of law, the petitioner

determines the issues that must be addressed by the trial court in a written order. Echols,

344 Ark. at 519, 42 S.W.3d at 470. Here, Roberts determined those issues and presented
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them to the circuit court in his prehearing brief, as well as his posttrial motion for rulings

on omitted issues, but the circuit court declined to address those six issues and instead made

a general, sweeping finding of competency to waive. This finding, in my view, does not

rise to the level of a “more exacting duty” required by the circuit court in a death-penalty

case.

        Third, the majority has reviewed the record, which contains conflicting expert

testimony on Roberts’s competency, substitutes its review for the circuit court’s finding of

fact, reverses the circuit court, and now holds that Roberts is incompetent to waive

postconviction proceedings. In doing so, the majority engages in fact-finding that is within

the exclusive province of the circuit court. This court has repeatedly stated that it does not

try issues of fact. See Mills v. State, 351 Ark. 523, 95 S.W.3d 796 (2003); Sanford v. State,

331 Ark. 334, 962 S.W.2d 335 (1998). Further, as a matter of policy, this court should be

wary of making conclusive findings of fact on a competency issue in a death-penalty case.

Instead, the circuit court should carry out its obligations under Rule 37.5, thereby providing

a basis for this court’s meaningful review of Roberts’s appeal. For these significant reasons,

I respectfully dissent.

        DANIELSON, J., joins.

        COURTNEY HUDSON GOODSON, Justice, dissenting. In May 1999, appellant

Karl D. Roberts confessed that he took his niece, Andria Brewer, to a secluded area, raped

her, and then strangled the child to death to conceal his wrongdoing. Upon our review of

his subsequent conviction of capital murder and sentence of death, we affirmed the circuit
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court’s finding that Roberts was competent to waive his direct appeal. Roberts v. State, 354

Ark. 399, 123 S.W.3d 881 (2003). Almost seventeen years after the murder, this court is

now reviewing the circuit court’s decision that Roberts has the capacity to understand the

choice between life and death and to knowingly and intelligently waive his right to

postconviction relief. I must respectfully dissent because, unlike the majority, I am not left

with a definite and firm conviction that the circuit court’s findings are clearly erroneous.

       In May 2013, one month after Roberts filed his Rule 37.5 petition, Roberts wrote

a letter to the federal district court judge who had presided over his habeas corpus petition

stating that he no longer wished to proceed with postconviction relief. Roberts explained

that he was motivated by a sense of justice and the desire to take responsibility for his actions

and to provide closure to Andria’s family. At a hearing before the circuit court in September

2013, Roberts echoed those same sentiments, which he repeated in letters he wrote to the

circuit court in November 2013 and May 2014.

       Dr. Mark Peacock reported that Roberts possesses a basic factual appreciation for the

appeals process and that Roberts understands that a waiver of postconviction relief is a final

and permanent decision that would lead to his execution. Peacock acknowledged that

Roberts’s wish to accept punishment and his desire to spare the feelings of others were

rational and “strong” reasons to forgo postconviction relief. Peacock did say that Roberts’s

reasoning was influenced “to some degree” by psychosis, but he stated that Roberts’s

rational desires “did not appear [to be] grossly colored by mental illness.” Dr. Daryl Fujii



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agreed that Roberts has rational reasons for not wanting to pursue postconviction relief and

said that Roberts’s thinking is “clouded” by his mental illness.

       In its order, the circuit court found that Roberts has the capacity to waive

postconviction proceedings:

       While both experts described a diagnosis of schizophrenia, Dr. Peacock
       acknowledged that this did not necessarily mean that one is incompetent to
       make rational decisions. Both indicated that Mr. Roberts is capable of rational
       decision making although under some circumstances affected by mental
       disease.

       ....

       After considering all relevant testimony and evidence and after applying the
       test of competency mandated by the Arkansas Supreme Court, the court finds
       that the defendant, Karl Roberts, is competent to knowingly and intelligently
       waive all rights to postconviction relief and has the capacity to choose
       between life and death (i.e. to elect execution) and to forego representation.
       He has made that waiver clear by his letter filings in this court, which were
       cogent and unequivocal, and by his testimony of September 16, 2013.

       In Arkansas, a defendant sentenced to death will be able to forego a state appeal only

if he has been judicially determined to have the capacity to understand the choice between

life and death and to knowingly and intelligently waive any and all rights to appeal his

sentence. Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), overruled on other grounds by

State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). On the issue of waiver, a circuit court’s

decision will not be disturbed on appeal unless its findings are clearly erroneous. See id.

The standards articulated in Franz govern the waiver of rights to postconviction remedies

following the affirmance of a death sentence. See Roberts v. State, 2013 Ark. 57, 426 S.W.3d

372. In Franz, we also commented on the deference accorded to the circuit court in such
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matters, based on its superior position to observe the testimony of experts and that of the

defendant. We said,

       In United States v. Oregon Medical Society, 343 U.S. 326 [72 S. Ct. 690, 96 L.
       Ed. 978] (1952), commenting on the deference which this Court gave to the
       findings of a District Court on direct appeal from a judgment in a bench trial,
       we stated:

               “As was aptly stated by the New York Court of Appeals,
               although in a case of a rather different substantive nature: ‘Face
               to face with living witnesses the original trier of the facts holds
               a position of advantage from which appellate judges are
               excluded. In doubtful cases the exercise of his power of
               observation often proves the most accurate method of
               ascertaining the truth. . . . How can we say the judge is wrong?
               We never saw the witnesses. . . . To the sophistication and
               sagacity of the trial judge the law confides the duty of appraisal.’
               Boyd v. Boyd, 252 N.Y. 422, 429, 169 N.E. 632, 634.” Id., at
               339 [72 S. Ct. at 698].

Franz, 296 Ark. at 193, 754 S.W.2d at 845–46 (quoting Marshall v. Lonberger, 459 U.S. 422,

434 (1983)).

       Upon my consideration of the record and applying our standard of review, I cannot

say that the circuit court’s findings are clearly erroneous. The circuit court had the first-

hand opportunity to observe Roberts and to assess the credibility of the expert witnesses.

On this record, the circuit court could well conclude that Roberts understands the choice

between life and death and that his decision to waive further review is knowingly and

intelligently made. In deference to the circuit court, I would affirm its decision that Roberts

has the capacity to forego postconviction relief.

       Jennifer Horan, Fed. Def., by: Scott W. Braden, Ass’t Fed. Def., for appellant.
       Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
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