In 1986 the petitioner Michael O'Rourke was found guilty of capital murder and sentenced to death. We affirmed. O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988). Petitioner subsequently filed a petition to proceed in circuit court pursuant to Criminal Procedure Rule 37. On February 27, 1989, we granted petitioner permission to apply to the circuit court for an evidentiary hearing on two allegations of ineffective assistance of counsel. After an evidentiary hearing was held at which petitioner was represented by appointed counsel, Jeff Rosenzweig, the trial court entered an order denying post-conviction relief. Shortly after Mr. Rosenzweig lodged the record on appeal of the order, petitioner filed a pro se motion in which he stated that he did not wish to pursue the appeal or further litigation. He further stated in the heading of the motion that he wished to terminate Mr. Rosenzweig's services as counsel.
A condemned person may waive collateral challenges to his conviction and sentence provided he is mentally competent to do so. Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966); Smith v. Armontrout, 812 F.2d 1050 (8th Cir.), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987); see Rumbaugh v. Procunier, 753 F.2d 395 (1985); Streetman v. Lynaugh, 674 F.Supp. 229 (E.D.Tex.1987);
As the petitioner has alleged that he is competent and there can be no doubt that a competent person may avail himself of the right to abandon collateral remedies, we remand the case to the trial court for an evidentiary hearing on whether petitioner is competent under the standard announced in Rees. The trial court will appoint new counsel for the hearing.
Mr. Rosenzweig contends that petitioner is insane and that any action on this motion should be deferred pending disposition of the Rule 37 appeal, but counsel is not entitled to make the decision on whether his client is competent. While remanding this matter for a hearing may ultimately result in an even more protracted course than appears to be inevitable with most death penalty cases, the petitioner has a right to be heard.
The Rule 37 appeal is stayed and is subject to dismissal on proper motion if petitioner is found competent. If petitioner is declared incompetent to waive his post-conviction remedies, Mr. Rosenzweig will continue to represent petitioner in the Rule 37 appeal. (We decline to relieve Mr. Rosenzweig as the petitioner has not provided any good cause to remove him as attorney-of-record.)
HAYS and GLAZE, JJ., dissent.
GLAZE, Justice, dissenting.
I dissent. By its action, the majority court has permitted, yet again, a defendant, convicted of capital murder, to take control of the judicial process. The result is predictable. These cases normally wind their way into the federal court process where they are never heard from again. See Whitmore v. State, 299 Ark. 55, 61, 771 S.W.2d 266, 268 (1989). In Whitmore, this court referred to capital cases that appeared to have come to the end of the direct appeal and post-conviction relief processes, only to find the cases once again entered the federal district court system and seemingly disappeared. Several such cases are identified in Whitmore, one, Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1750, 68 L.Ed.2d 232 (1981), having been filed in the federal district court in 1981. Miller's case has now been in the judicial system for eleven years, and it is anyone's guess when his case will end.
By allowing O'Rourke in this case the opportunity to withdraw his appeal, we add another step to the judicial process—a competency hearing in a post-conviction proceeding which will also require our later review of that hearing. In addition, if experience teaches us anything, O'Rourke's case, as it concerns the issue involving his competency and ability to waive his post-conviction appeal, will inevitably go to the federal court system and most likely end up before the Supreme Court. At any stage, O'Rourke may, as other convicted murder defendants have done in the past, decide he wants to reinstate his appeal on the merits. A few recent examples (there are others) where defendants, convicted of capital murder, have changed their minds to have their cases decided are as follows:
To allow such a manipulation of the judicial process undermines any fair-minded person's confidence in our court system.
The state courts have no power to end those Arkansas capital murder cases that languish in the federal district court. Sometime the federal government, and particularly the judiciary, will have to resolve this serious failure to decide and dispose of capital murder cases that routinely spring into the federal court system after being resolved by the state courts. In fact, the manner in which the judiciaries as a whole, and the federal judiciary in particular, have handled these capital cases has been a public disgrace! A recent report reflects that there are now approximately 2,200 convicted murderers on death row awaiting execution, yet since 1972, only 116 executions have taken place. See Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases Report and Proposal, released to public on September 21, 1989.
In Franz v. State, 296 Ark. 181, 194, 754 S.W.2d 839, 846 (1988) (Glaze, J., concurring in part and dissenting in part), I suggested that justice would be better served, and delays avoided, if the court automatically reviewed the lower court's record of the sentencing phase of the trial.
Meanwhile, I would adopt the same mandatory review procedure in this post-conviction appeal, and deny O'Rourke's request to abandon his appeal.
HAYS, J., joins this dissent.