FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-14-232A]
HONORABLE BOBBY D. MCCALLISTER, JUDGE
C. Allen, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice
Jason Carroll Neal appeals the order of the Saline County
Circuit Court denying his petition for postconviction relief
pursuant to Rule 37.1 of the Arkansas Rules of Criminal
Procedure (2015). On appeal, Neal argues that the circuit
court erred in finding that (1) Neal was not deprived of due
process upon his expulsion from the drug-court program
without a hearing; and (2) Neal did not receive ineffective
assistance of counsel. We reverse the circuit court's
order denying Neal's petition for postconviction relief
and remand for a hearing consistent with this opinion.
entered a plea of guilty to breaking and entering, possession
of firearms by certain persons, and possession of drug
paraphernalia. The guilty-plea statement states that the
maximum punishment for each of the charges is as follows:
twenty years' imprisonment for the possession-of-firearms
charge, six years' imprisonment for the
possession-of-drug-paraphernalia charge, and six years'
imprisonment for the breaking-and-entering charge. We note
that, despite these maximum sentences equaling 384
months' imprisonment, the guilty-plea statement contained
a provision stating, "I understand that the negotiated
plea I am entering includes a recommended sentence of: 420
at the time of the entry of the guilty plea, Neal executed
the "Saline County Adult Drug Court Admission Form and
Order CR-14-465 & CR-14-232A." The drug-court
admission form contained an express waiver of rights,
including a waiver of Neal's right to "any later
Rule 37 Motions claiming ineffective assistance of counsel or
any other constitutional grounds for release." The form
also stated, "I understand the Plea Agreement I am
signing below is approximately 25% longer than would be
available if I were not a Drug Court Participant. I hereby
agree to the terms of the Judgment and Commitment Order, and
I affirmatively state: I understand the Judgment and
Commitment will be entered and the sentence will begin
immediately if I am expelled from Drug Court for any reason.
I understand the Judgment and Commitment is held in Abeyance
and not dated or filed with the Circuit Clerk unless I am
expelled from Drug Court." Further, the form stated that
Neal waived his "right to have legal notice, a hearing
and/or any other rights I may have regarding due process
prior to Drug Court sanctions (which sanctions may include
but are not limited to: . . . expulsion from Drug Court and
execution of original sentence)."
April 6, 2015, Neal was sentenced to 420 months'
imprisonment for his alleged violation of the drug-court
program. However, there is no record of the program rules or
a hearing on the alleged violation although Rule 24.7 of the
Arkansas Rules of the Criminal Procedure and Administrative
Order Number 4 both require verbatim transcripts of the
proceedings. The entirety of the April 6, 2015 sentencing
proceeding is as follows:
Court: Mr. Neal, in being sent out of the 90-day program you
basically have given us no choice on this one. Um, at this
point in time, we're imposing your sentence. It's 420
months in the Arkansas Department of Corrections.
Neal: You Honor, can I ask you a question?
Neal: Can I ask a question?
Neal: When I - what I got wrote up for initially was dropped.
They – then they in turn came and wrote me up, changed
the write-up to a CR17. The lieutenant told me, said, Look,
Neal, I done investigated it. We know y'all was
horse-playing, but they're going to charge you with
something that's cardinal rule so that you have to do
some hold time. I said, Okay. I understand. He said, just do
the hold time and go back. I said okay.
I go to court, and in that court proceeding it's just
like this one. They've got - they push the tape recorder.
It's being recorded, everything. They read my charge.
They let me say something. I stepped out. I come back in and
they said they're finding me guilty of the CR 17. I said
okay. They said, do you want to say anything that might cause
us to give you - I said, yes. I said, I've been here 60
days. Y'all interviewed me last week to be number two in
charge. I didn't get a write-up or nothing the whole time
I was there. Me and Jamie -Jamie's the coordinator. They
interviewed me to be assistant coordinator. That would never
have happened if I'd been cutting up like - you know that
I - I did - they never had to tell me to tuck my shirt in,
shave or nothing. I did everything I was supposed to do. Yes,
on the Friday night at 8:00 getting out of the shower about
eight dudes in there, locker room, horse-playing. We were
cutting up. And I was found guilty of that. I admit that. I
did - and I was found guilty of horse-playing. And I admit
that. I did do that. We were just cutting up.
They found me guilty of the CR17, but on the tape recording
they -one of the options was to kick me out of the program.
They said, this is what can happen if you're found
guilty. I said - then they read it off. This is all recorded.
I said, okay.
When they brought me back in and said they found me guilty,
they said, 15 days in the hole and loss of privilege meaning
I couldn't go in the commissary or nothing else when I
got out. And that's on the tape recording. At that time,
I went and I did 13 days of it. Ms. Gorham showed up to pick
On - on the recording - if they were gonna - if they would
have kicked me out of the program for what I did, they would
have had to have said that in the court proceeding, that -
what they - they found me guilty and this is what they were
doing. Your Honor, I promise you, they gave me 15 days in the
hole and that was it. This is on the tape. This is all on
recording. I'm not - I didn't get - I went and did my
- sat in the hole. I didn't have nothing but a Bible. I
sat right there and read it. The only time I seen anybody was
when they brought me a tray other than that. That 15 days was
all they wanted. They did not tell me I was kicked out.
Now, what happened from the time that I got - went into the
hole til the time Ms. Gorham showed up to get me - when they
told me to dress out, I thought I was going back and I had
two days left. In the court proceeding - I'm just asking
you this: if they say this is what we're - this what your
sentence is, is that not what it is? Or. -
Court: You're - and I'm going to answer it and
we're gonna be done in about two seconds. The process of
ADC punishment and ADC inter-workings is not something I have
any control over. As I understand it, we were told - and
there's no question about it. We were told to come get
It has - again, as I understand it, it has to do not only
with that incident, but in general, Jason, you're not fit
for this program because you don't want to - you
don't want to do the things to get through this program
that you have to do. And you end up with your negativism
pulling everyone down. And we're done. You can take him.
Neal: Well, I never had a chance to being with -
Court: Mr. Mallory -
Neal: - if that's the - if that's the case.
Court: Mr. Mallory -
Neal: You did exactly what I said y'all were gonna do.
You gave me 35 years so that you could snow me in. I hope
you're happy. When God judges you, I hope you get the
April 22, 2015, Neal filed a motion to set aside the judgment
and commitment. However, the record demonstrates that the
circuit court failed to act on this motion. On May 28, 2015,
Neal filed a petition for postconviction relief pursuant to
Rule 37.1 of the Arkansas Rules of Criminal Procedure. In his
petition, Neal argued that the procedure established by the
court for participation in the drug-court program is in
violation of his right to due process because it allows ...