GUILTY AR - Beverly Carter, 49, Little Rock, 25 Sep 2014 - #13

[arkansasmimi]

• The amount of “JAIL TIME CREDIT In days” was changed from
“594” to “442.”
3. The State filed notice of cross-appeal on April 18, 2016. This was more
than 30 days after the original sentencing order was filed.
4. Mr. Lewis contends that the State’s cross-appeal is untimely, and must be
dismissed accordingly. This Court lacks jurisdiction to hear the State’s
cross-appeal.
5. The amended sentencing order was no more than a nunc pro tunc order
under Ark. R. Civ. P. 60(b) because it corrected a clerical error so as to
make the record speak the truth. “[A]n appeal from a nunc pro tunc order
contests the propriety of the corrections made and may not be used to
challenge issues that should have been appealed from the original order
but were not.” Holt Bonding Co. v. State, 335 Ark. 136, 141, 114 S.W.3d
179, 183 (2003); see Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832
(1993); Kindiger v. Huffman, 307 Ark. 465, 466-67, 821 S.W.2d 33, 34
(1991). In deciding whether a judgment is a nunc pro tunc order or an
amendment, this Court looks beyond the form of the judgment to
determine its true nature. Id.
6. Mr. Lewis’s counsel considered this issue when initially researching the
his response to the State’s Cross-Appellant’s Brief, but did not identify
caselaw on point at that time. However, upon further review in

 

[arkansasmimi]

preparation for oral arguments, counsel located this error and filed this
motion accordingly.
7. A timely notice of appeal is a jurisdictional requirement. See Stacks v.
Marks, 354 Ark. 594, 127 S.W.3d 483 (2003). Lacking a timely notice of
appeal, this Court has no jurisdiction to consider other issues raised in the
State’s cross-appeal. See Arkco Corp. v. Askew, 360 Ark. 222, 200
S.W.3d 444 (2004). A jurisdictional issue may be raised for the first time
on appeal. See Smith v. State, 83 Ark. App. 48, 51, 115 S.W.3d 820, 822
(2003). Further, this Court is required to raise the issue of subject-matter
jurisdiction on its own motion. Stacks, 354 Ark. at 599, 127 S.W.3d at
485.
8. The State’s points on cross-appeal regarding general warrants and the
inevitable-discovery doctrine do not relate to the corrections made on the
amended sentencing order, and the cross-appeal must be dismissed
accordingly. See Johnson v. State, 2008 Ark. App. LEXIS 716, 2008 WL
4493424 (unpublished) (finding that an amended sentencing order
correcting the amount of jail time credit was a nunc pro tunc order, and
thus that appellant’s notice of appeal was untimely based on the original
sentencing order).
Respectfully submitted
Michael Kiel Kaiser
WILLIAM O. “BILL” JAMES, JR. (94108)
MICHAEL KIEL KAISER (2015001) https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS

 

[arkansasmimi]

05/09/2017
03:01 PM RESPONSE TO MOTION JACKSON, ADAM DONNER
Entry: Appellee/Cross-Appellant's response to motion to dismiss.
Images RESPONSE https://caseinfo.aoc.arkansas.gov/c...kto=P&case_id=CR-16-413&begin_date=&end_date=

IN THE ARKANSAS SUPREME COURT
ARRON MICHAEL LEWIS APPELLANT/CROSS-APPELLEE
V. NO. CR 16-413
STATE OF ARKANSAS APPELLEE/CROSS-APPELLANT

RESPONSE TO MOTION TO DISMISS
Comes now Cross-Appellant, by and through counsel, Leslie Rutledge,
Attorney General, and Kathryn Henry and Adam Jackson, Assistant Attorneys
General, and for its response to Motion to Dismiss, states:
A month-and-a-half after briefing in this case and less than three days
before oral argument, Cross-Appellee Arron Lewis has filed a motion to
dismiss the State’s cross-appeal as untimely. He claims that the State’s notice
of cross-appeal, which it filed on April 18, 2016, was filed more than 30 days
after the original January 26, 2016 sentencing order was entered. The State
appealed from the amended sentencing order dated March 30, 2016. Lewis
contends that the amended sentencing order essentially is a nunc pro tunc order
and that the State’s notice of appeal from that order is ineffective to confer
jurisdiction on this Court to review the two cross-appeal issues. He is wrong. https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS

 

[arkansasmimi]

The State’s cross-appeal, like all State appeals, is governed by Ark. R.
App. P. – Crim. 3 (2016). And notices of appeal fall under Rule 3(b), which
states:

Where an appeal, other than an interlocutory appeal, is desired on
behalf of the state following either a misdemeanor or felony
prosecution, the prosecuting attorney shall file a notice of appeal
within thirty (30) days after entry of a final order by the trial
judge.

Ark. R. App. P. – Crim. 3(b) (emphasis added). This Court has consistently
held that there is a significant difference between appeals brought by criminal
defendants and those brought on behalf of the State. E.g., State v. Canada,
2016 Ark. 318, at 3, 499 S.W.3d 204, 205. The latter is only granted pursuant
to the confines of Rule 3. Id., at 3, 499 S.W.3d at 205-06.
In this case, the amended sentencing order dated March 30, 2016, was a
final order by the trial judge, and thus, was the proper order under Rule 3 from
which the State could pursue its cross-appeal. Importantly, there were several
substantive changes from the original order to the amended order, including the
DNA-registration requirement and number of days of good-time jail credit to
which Lewis was entitled. (R. 443, 449; Add. 123, 129).1 Because the State’s
_________________________

1
The only criminal case on which Lewis relies, Johnson v. State, CACR
08-187 (Ark. App. Oct. 8, 2008) (unpublished opinion), has no precedential
value under Ark. R. Sup. Ct. 5-2(c) (2016), and, in any event, does not apply
here. In Johnson, the defendant was sentenced in open court to concurrent
terms of 25 years in prison and was given 546 days of jail-time credit.
Johnson, No. CACR 08-187 (slip op. at 3). The original written judgment-andcommitment
order did not reflect the sentence imposed in open court and
instead imposed an incorrect sentence and made no provision for jail-time
credit. Id. An amended written judgment was then entered, in which the
defendant’s sentences were correctly reflected. Id. Given the discrepancy
between the oral and written sentences, the court of appeals held that, it was
“apparent that the second judgment was intended to correct the clerical errors
in the original judgment to reflect the actual sentences imposed by the trial
court in open court.” Id. Thus, the court concluded that the amended judgment
was a nunc pro tunc order. Id. By contrast, the amendment here did not
simply make clerical corrections.

 

[arkansasmimi]

notice of appeal complied with Rule 3(b), this Court has jurisdiction to
consider the State’s cross-appeal arguments.
Further, Lewis waited until the very eve of oral argument to raise his
new jurisdictional argument. He acknowledges that he considered this
argument months ago, when he responded to the State’s cross-appeal. Indeed,
he had an opportunity to respond to the State’s jurisdictional statement on
cross-appeal in his response brief, see Ark. R. Sup. Ct. 1-2(c)(3) (2016), and
opted not to make his latest argument. Rather he asserted that the cross-appeal
should be dismissed because the issues are not important to the correct and
uniform administration of justice. His last-minute assertion of a different
jurisdictional defect is, like his first, an attempt to deflect from two important
cross-appeal issues that are properly before this Court.
WHEREFORE, the State respectfully requests that this Court deny
Lewis’s motion to dismiss the State’s cross-appeal.
Respectfully submitted,
LESLIE RUTLEDGE
Attorney General

ADAM JACKSON
Arkansas Bar No. 2013176
Assistant Attorney General

KATHRYN HENRY
Arkansas Bar No. 2005199
Assistant Attorney General https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS

 

[arkansasmimi]

**Looks like live stream and will be archived link below

Supreme Court Oral Arguments Schedule
Oral arguments are held in the courtroom of the Arkansas Supreme Court, which is located in the Justice Building, 625 Marshall Street, Little Rock, Arkansas. Oral arguments are included as part of the court's proceedings, which are scheduled to begin at 9:00 A.M. on the date indicated. These proceedings are open to the general public.

Oral Argument videos can also be viewed at this link. https://courts.arkansas.gov/courts/supreme-court/oral-argument-videos
CR-16-413, Arron Michael Lewis v. State of Arkansas, from Pulaski County Circuit Court. May 11, 2017 - 08:58 AM

Date Title Case number
May 11, 2017 - 09:00 Arron Michael Lewis v. State of Arkansas, from Pulaski County Circuit Court CR-16-413

Event Date:
05/11/2017 -
09:00 to 10:00
Case number:
CR-16-413
Location:
Justice Building
625 Marshall Street
Little Rock, AR 72201 https://courts.arkansas.gov/courts/supreme-court/schedule
United States

 

[arkansasmimi]

05/09/2017
03:01 PM RESPONSE TO MOTION JACKSON, ADAM DONNER
Entry: Appellee/Cross-Appellant's response to motion to dismiss.
Images RESPONSE https://caseinfo.aoc.arkansas.gov/c...kto=P&case_id=CR-16-413&begin_date=&end_date=

IN THE ARKANSAS SUPREME COURT
ARRON MICHAEL LEWIS APPELLANT/CROSS-APPELLEE
V. NO. CR 16-413
STATE OF ARKANSAS APPELLEE/CROSS-APPELLANT

RESPONSE TO MOTION TO DISMISS
Comes now Cross-Appellant, by and through counsel, Leslie Rutledge,
Attorney General, and Kathryn Henry and Adam Jackson, Assistant Attorneys
General, and for its response to Motion to Dismiss, states:
A month-and-a-half after briefing in this case and less than three days
before oral argument, Cross-Appellee Arron Lewis has filed a motion to
dismiss the State’s cross-appeal as untimely. He claims that the State’s notice
of cross-appeal, which it filed on April 18, 2016, was filed more than 30 days
after the original January 26, 2016 sentencing order was entered. The State
appealed from the amended sentencing order dated March 30, 2016. Lewis
contends that the amended sentencing order essentially is a nunc pro tunc order
and that the State’s notice of appeal from that order is ineffective to confer
jurisdiction on this Court to review the two cross-appeal issues. He is wrong. https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS

Went back and looked :
02/10/2016
02:38 PM ORDER OTHER
Entry: ORDER IS ENTERED NUNC PRO TUNC
Images WEB

02/11/2016
10:24 AM NOTICE OF APPEAL JAMES JR , WILLIAM OWEN
Entry: none.
Images WEB

03/30/2016
10:56 AM AMENDED SENTENCING ORDER HON. HERBERT WRIGHT - 4TH DIVISION 6TH CIRCUIT,
Entry: none.
Images WEB

04/18/2016
09:10 AM NOTICE OF APPEAL JOHNSON, JOHN F
Entry: OF CROSS APPEAL BY PROSECUTOR
Images WEB
https://caseinfo.aoc.arkansas.gov/c...=P&case_id=60CR-14-3928&begin_date=&end_date=

 

[arkansasmimi]

While I admittedly don't understand if the Defense can now file this Motion (guess the ASC will state soon) but I do not understand how the state is saying the Amended is the Final Order. I DO, but I also understand that it was also fixing clerical errors just like they had to do on CL's. *After AL lawyers made Motion for those corrections*

The Judge sentenced AL in court and it is also in the Docket notes

01/15/2016
07:32 AM COURT APPEARANCE LEWIS, ARRON MICHAEL
Entry: DEF APP'D W/ ATTY TRIAL RESUMES DEF TESTIFIES, DEFENSE REST, DEFENSE RENEW ALL PREVIOUS MOTIONS - RULINGS REMAIN THE SAME, JURY INSTRUCTED, JURY OUT 2:56 pm, DEF FOUND TO BE A LARGE HABITUAL, JURY BACK 3:55 pm GUILTY OF CAPITOL MURDER & KIDNAPPING JURY INSTRUCTED, JURY OUT 4:11 pm JURY BACK 4:18 pm STATE NP CT 3 DEF SENTENCED CT 1 LIFE W/O PAROLE, CT 2 LIFE, APPROPRIATE JC, ADVISED OF RIGHT TO APPEAL CONSECUTIVE SENTENCES

State Response pg 2/5
Importantly, there were several
substantive changes from the original order to the amended order, including the
DNA-registration requirement and number of days of good-time jail credit to
which Lewis was entitled. (R. 443, 449; Add. 123, 129)

John Johnson the Deputy Pros Attorney signed Orig Sentencing Order 1/20/16
Judge Wright signed electronically 1/26/16

John Johnson the Deputy Pros Attorney signed Amended Sentencing Order 3/30/16
AMENDED SENTENCING ORDER
So Ordered
Honorable Herbert T Wright
Electronically signed by HTWRIGHT on 2016-03-30 10:56:24

Other than these entries, we do not know who brought to the attention of the clerical errors in the 1/20/16 signed Sentencing Order.

01/26/2016
02:09 PM SENTENCING ORDER HON. HERBERT WRIGHT - 4TH DIVISION 6TH CIRCUIT,
Entry: none.
Images WEB

01/26/2016
02:09 PM PROSECUTORS REPORT HON. HERBERT WRIGHT - 4TH DIVISION 6TH CIRCUIT,
Entry: none.
Images No Images

01/26/2016
05:00 PM MOD JUDGMENT/DECREE/ORDER LEWIS, ARRON MICHAEL
Entry: TRIAL TYPE: J
Images No Images

Kinda hinky, was the Pros Office buying time to file their Cross Appeal? That is odd. He had already stated he was going to Appeal that during the Hearing iirc. Do they mess up on other Sentencing Orders routinely? JJ is a very good and passionate Deputy Pros. I would have thought he would have caught before he signed. *looking at other documentation to verify. Days credit went down and the DNA part that should have been something he should have caught, maybe reading fast?

Sadly as much as we all wish AL would fade away, errors in this case could have effect on other cases for sure. JMHO

 

[mpnola]

I'm sure this case might be cited just like a million others when each side of lawyers tries to jump through the tiny loopholes. That doesn't mean he will still be discussed or relevant. It will just be the name of a case to argue a point. Doesn't feel earth shattering, to me. He will fade. I feel confident. That's my opinion.

Sent from my SCH-I435 using Tapatalk

 

[SteveS]

I'm sure this case might be cited just like a million others when each side of lawyers tries to jump through the tiny loopholes. That doesn't mean he will still be discussed or relevant. It will just be the name of a case to argue a point. Doesn't feel earth shattering, to me. He will fade. I feel confident. That's my opinion.

Sent from my SCH-I435 using Tapatalk

You're right on track.

What some don't realize is that there is nothing unusual or earth-shattering in the possibility that an appeals court's decision might have an impact on "precedent for future cases." In fact, precedent is part of the fabric of EVERY appeal, because the appeals court's decisions all follow one of three paths that result in some sort of working "precedent" ...
result a - the lower court applied the law properly, using the precedent already in place, and therefore continue to use the prior precedent
result b - the lower court applied the law improperly, violating the prior precedent, and therefore continue to use the prior precedent
result c - the lower court applied the law improperly, even though using the precedent already in place, and therefore use this new precedent

It's also important to understand that "the lower court applied the law improperly" results won't necessarily mean a new trial. In this day and age, most state appeals courts are sensitive to the idea of the process getting the bottom line right, and their correction may be of the nature of "This was clearly the right verdict, so no need to do this over. But next time, make sure to do it this way" in a quest to help ensure they don't have wrong verdicts to deal with in the future.

 

[arkansasmimi]

I'm sure this case might be cited just like a million others when each side of lawyers tries to jump through the tiny loopholes. That doesn't mean he will still be discussed or relevant. It will just be the name of a case to argue a point. Doesn't feel earth shattering, to me. He will fade. I feel confident. That's my opinion.

Sent from my SCH-I435 using Tapatalk

I agree with you on AL and CL both being where they deserve to be.

My point of keeping the thread current with docket is because it is in section "Recently Sentenced and Beyond". There are other cases such as Jeffery MacDonald who killed his family in 1970 still going through Appeals and stuff posted. Unless I am told by Mods to no longer keep posting, I respectfully will continue to do so.

The Appeals depending on how they are decided could potentially effect this case as well as others. Again depending on how decided, AL could possibly get a new trial with evidence used in prior trial suppressed. Again all things depend on how the ASC rules. JMHO

The Oral Argument tomorrow before the ASC is for one topic and it is in reference to the recording that AL played in the illegal interrogation. I have stated my opinions why I think possible they didn't just get the recording off of AL actual phone prior. They have the technology. But in one hearing AL stated he needed access to his phone saying he had 3 or 4 (cant remb without looking at my notes) that would help his case. As far as it seems State never extracted that phone. I do not believe there is video of what AL said, but he said it multiple times there were video on the phone.
It would be turned over in Discovery and I feel sure would have been used if there had been an extraction. (when he was still Pro Se, June 2015 and after that he asked for attorney and got Bill James, then in July CL turned and plea guilty)

Anyway the Oral Arguements tomorrow are just one of the Appeal points. Respectfully, whether it is earth shattering to you is your opinion. But it is a first impression

First Impression
A new legal issue or interpretation that is brought before a court. In a case of first impression, the exact issue before the court has not been addressed by that court, or within that court's jurisdiction, thus there is no binding authority on that matter.

Cases of first impression often occur in connection with recently passed legislation, or when that issue has been addressed by other jurisdictions, but not in the jurisdiction of the presented court.

Courts may seek guidance from other jurisdictions, or by making analogies to related or similar issues. https://www.law.cornell.edu/wex/first_impression

case of first impression
n. a case in which a question of interpretation of law is presented which has never arisen before in any reported case. Sometimes, it is only of first impression in the particular state or jurisdiction, so decisions from other states or the federal courts may be examined as a guideline. http://legal-dictionary.thefreedictionary.com/case+of+first+impression

 

[arkansasmimi]

While the State in their Reply that the ASC did not need to decide, it looks like they sided with the Defense to hear it in Oral arguments tomorrow.

08/19/2016 APPELLANT'S BRIEF ARGUMENT (Defense Appeal Brief)
II. THE TRIAL COURT ERRED IN ADMITTING THE
NONTESTIMONIAL FRUIT OF LEWIS’S ILLEGAL
INTERROGATION page 367/558 https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS

12/15/2016 APPELLEE'S BRIEF (AG Response
II. THIS COURT NEED NOT RESOLVE WHETHER ARKANSAS LAW
PROVIDES GREATER PROTECTIONS THAN PATANE;
ALTERNATIVELY, THE CIRCUIT COURT DID NOT CLEARLY ERR BY
ADMITTING BEVERLY CARTER’S RECORDING ON APPELLANT’S
CELL PHONE; OR, ANY ERROR IN ITS ADMISSION WAS HARMLESS. https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS

2/16/17 Def Reply Brief
II. This Court Must Resolve Whether Arkansas Law Provides Greater
Protections than United States v. Patane, 542 U.S. 630 (2004)
(plurality). https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS

 

[arkansasmimi]

I agree with you on AL and CL both being where they deserve to be.

My point of keeping the thread current with docket is because it is in section "Recently Sentenced and Beyond". There are other cases such as Jeffery MacDonald who killed his family in 1970 still going through Appeals and stuff posted. Unless I am told by Mods to no longer keep posting, I respectfully will continue to do so.

The Appeals depending on how they are decided could potentially effect this case as well as others. Again depending on how decided, AL could possibly get a new trial with evidence used in prior trial suppressed. Again all things depend on how the ASC rules. JMHO

The Oral Argument tomorrow before the ASC is for one topic and it is in reference to the recording that AL played in the illegal interrogation. I have stated my opinions why I think possible they didn't just get the recording off of AL actual phone prior. They have the technology. But in one hearing AL stated he needed access to his phone saying he had 3 or 4 (cant remb without looking at my notes) that would help his case. As far as it seems State never extracted that phone. I do not believe there is video of what AL said, but he said it multiple times there were video on the phone.
It would be turned over in Discovery and I feel sure would have been used if there had been an extraction. (when he was still Pro Se, June 2015 and after that he asked for attorney and got Bill James, then in July CL turned and plea guilty)

Anyway the Oral Arguements tomorrow are just one of the Appeal points. Respectfully, whether it is earth shattering to you is your opinion. But it is a first impression

First Impression
A new legal issue or interpretation that is brought before a court. In a case of first impression, the exact issue before the court has not been addressed by that court, or within that court's jurisdiction, thus there is no binding authority on that matter.

Cases of first impression often occur in connection with recently passed legislation, or when that issue has been addressed by other jurisdictions, but not in the jurisdiction of the presented court.

Courts may seek guidance from other jurisdictions, or by making analogies to related or similar issues. https://www.law.cornell.edu/wex/first_impression

case of first impression
n. a case in which a question of interpretation of law is presented which has never arisen before in any reported case. Sometimes, it is only of first impression in the particular state or jurisdiction, so decisions from other states or the federal courts may be examined as a guideline. http://legal-dictionary.thefreedictionary.com/case+of+first+impression

View attachment 116655

From the State Reply Brief, this is what I do not understand. After they had already gotten the interrogation thrown out, jmho it seems like it would have been solid and not something that they knew the Def would try to bring up on Appeal. Why not just use the information from phone extraction? They did CL phone. That is where they got the text messages. *She gave them information that they did not have, but the phone I do not think was one. Just she clarified some of the convo. Why not extract AL phone and use what was on it too? :thinking:

Pg 40/99 https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS
3
To the extent Appellant attempts to argue that officers would never have
discovered the Recording because he would not have given up his passcode, see
App. Arg. 13, his argument is misguided. Recent history, has proven that iPhone
passcodes are not failsafe as many courts have ordered Apple to help governments
bypass iPhone passcodes. E.g., In re Apple, Inc., 149 F. Supp. 3d 341, 349
(E.D.N.Y. 2016). Furthermore, specialized software exists to bypass the passcode
in Appellant’s iPhone. Id. at 374.

 

[mpnola]

I definitely didn't say you shouldn't post info. I would never do that. When I said I will be glad when he's forgotten I mean that he doesn't even deserve the attention he wants. He is insignificant. Posting on the case doesn't change that. We (ws people) are the only nuts who follow things for long after. In the scheme of things, he will be forgotten by the public quickly. Even though he thought it would make him famous.

Sent from my SCH-I435 using Tapatalk

 

[arkansasmimi]

While I admittedly don't understand if the Defense can now file this Motion (guess the ASC will state soon) but I do not understand how the state is saying the Amended is the Final Order. I DO, but I also understand that it was also fixing clerical errors just like they had to do on CL's. *After AL lawyers made Motion for those corrections*

The Judge sentenced AL in court and it is also in the Docket notes

01/15/2016
07:32 AM COURT APPEARANCE LEWIS, ARRON MICHAEL
Entry: DEF APP'D W/ ATTY TRIAL RESUMES DEF TESTIFIES, DEFENSE REST, DEFENSE RENEW ALL PREVIOUS MOTIONS - RULINGS REMAIN THE SAME, JURY INSTRUCTED, JURY OUT 2:56 pm, DEF FOUND TO BE A LARGE HABITUAL, JURY BACK 3:55 pm GUILTY OF CAPITOL MURDER & KIDNAPPING JURY INSTRUCTED, JURY OUT 4:11 pm JURY BACK 4:18 pm STATE NP CT 3 DEF SENTENCED CT 1 LIFE W/O PAROLE, CT 2 LIFE, APPROPRIATE JC, ADVISED OF RIGHT TO APPEAL CONSECUTIVE SENTENCES

State Response pg 2/5
Importantly, there were several
substantive changes from the original order to the amended order, including the
DNA-registration requirement and number of days of good-time jail credit to
which Lewis was entitled. (R. 443, 449; Add. 123, 129)

John Johnson the Deputy Pros Attorney signed Orig Sentencing Order 1/20/16
Judge Wright signed electronically 1/26/16

John Johnson the Deputy Pros Attorney signed Amended Sentencing Order 3/30/16
AMENDED SENTENCING ORDER
So Ordered
Honorable Herbert T Wright
Electronically signed by HTWRIGHT on 2016-03-30 10:56:24

Other than these entries, we do not know who brought to the attention of the clerical errors in the 1/20/16 signed Sentencing Order.

01/26/2016
02:09 PM SENTENCING ORDER HON. HERBERT WRIGHT - 4TH DIVISION 6TH CIRCUIT,
Entry: none.
Images WEB

01/26/2016
02:09 PM PROSECUTORS REPORT HON. HERBERT WRIGHT - 4TH DIVISION 6TH CIRCUIT,
Entry: none.
Images No Images

01/26/2016
05:00 PM MOD JUDGMENT/DECREE/ORDER LEWIS, ARRON MICHAEL
Entry: TRIAL TYPE: J
Images No Images

Kinda hinky, was the Pros Office buying time to file their Cross Appeal? That is odd. He had already stated he was going to Appeal that during the Hearing iirc. Do they mess up on other Sentencing Orders routinely? JJ is a very good and passionate Deputy Pros. I would have thought he would have caught before he signed. *looking at other documentation to verify. Days credit went down and the DNA part that should have been something he should have caught, maybe reading fast?

Sadly as much as we all wish AL would fade away, errors in this case could have effect on other cases for sure. JMHO

The Oral Arguments were interesting. The Deputy Solicitor General more or less conceded when asked about the Motion to Dismiss that the Amended Sentencing was nunc pro tunc when asked by one of the Justices about the Motion. If the Justices agree that it was just fixing clerical errors, which is what the Amended Sentencing Order did, then the Cross Appeal (The State Appeal that Trial Judge was in error on the Search Warrants for House and Car) will most likely be deemed late filing JMHO.

Nunc pro tunc is a Latin expression in common legal use in the English language. It means now for then. In general, a court ruling nunc pro tunc applies retroactively to correct an earlier ruling.
The most common use of nunc pro tunc is to correct past clerical errors, or omissions made by the court, that may hinder the efficient operation of the legal system. For example, if the written record of a trial court's judgment failed to correctly recite the judgment as the court rendered it, the court has the inherent power to change the record at a later date to reflect what happened at trial. The decision, as corrected, would be given legal force from the time of the initial decision so that neither party is prejudiced, or harmed, by the error. The purpose of nunc pro tunc is to correct errors or omissions to achieve the results intended by the court at the earlier time. http://legal-dictionary.thefreedictionary.com/nunc+pro+tunc

For those who didn't watch it will be archived to view. I was thinking it was just going to go over the "Patane" issue, because that was on the letter requesting Oral Argument. The Defense got to use their time going through their points.

One thing that I got out was that the Pros Subpoenas came on 10/3/17 for IP addresses. I scribbled down @2455 is where this was spoken about. So going to go back and see what was said. Interesting the questions from the Justices to the 2 Lawyers

 

[arkansasmimi]

Oral Argument Archive Link * appears that Opinions will have link here when one is made.
Unsure when their Decision will be decided, but it will be on a Thurs that per the site:

General Information
Decisions:
Available each Thursday at 9:00 a.m. during the court term.

new!! CR-16-413, Arron Michael Lewis v. State of Arkansas, from Pulaski County Circuit Court.
May 11, 2017 00h 48m
Oral Argument https://courts.arkansas.gov/courts/supreme-court/oral-argument-videos/sc

05/11/2017
09:00 AM CASE SUBMITTED - ORALLY ARGUED HALL HENRY, KATHRYN ELIZABETH
Entry: none.
Images No Images https://caseinfo.aoc.arkansas.gov/c...kto=P&case_id=CR-16-413&begin_date=&end_date=

 

[arkansasmimi]

The Oral Arguments were interesting. The Deputy Solicitor General more or less conceded when asked about the Motion to Dismiss that the Amended Sentencing was nunc pro tunc when asked by one of the Justices about the Motion. If the Justices agree that it was just fixing clerical errors, which is what the Amended Sentencing Order did, then the Cross Appeal (The State Appeal that Trial Judge was in error on the Search Warrants for House and Car) will most likely be deemed late filing JMHO.

Nunc pro tunc is a Latin expression in common legal use in the English language. It means now for then. In general, a court ruling nunc pro tunc applies retroactively to correct an earlier ruling.
The most common use of nunc pro tunc is to correct past clerical errors, or omissions made by the court, that may hinder the efficient operation of the legal system. For example, if the written record of a trial court's judgment failed to correctly recite the judgment as the court rendered it, the court has the inherent power to change the record at a later date to reflect what happened at trial. The decision, as corrected, would be given legal force from the time of the initial decision so that neither party is prejudiced, or harmed, by the error. The purpose of nunc pro tunc is to correct errors or omissions to achieve the results intended by the court at the earlier time. http://legal-dictionary.thefreedictionary.com/nunc+pro+tunc

For those who didn't watch it will be archived to view. I was thinking it was just going to go over the "Patane" issue, because that was on the letter requesting Oral Argument. The Defense got to use their time going through their points.

One thing that I got out was that the Pros Subpoenas came on 10/3/17 for IP addresses. I scribbled down @2455 is where this was spoken about. So going to go back and see what was said. Interesting the questions from the Justices to the 2 Lawyers

JMHO but this Solicitor General blew it.
For 1, he did not know make any sense to what he was talking about when argued about the Pros Subpoenas. He even said, "violation of statute might be, but he didn't think there was and he would explain" One of the Justices asked him "if there is a violation, what is the remedy?" He replied "in this case no remedy"

He said that "factual, no abuse that PCSO didn't use a pros subpoena to get phone numbers or records." Stated that the Def is getting their information from Records # (R365) (R546) (R549) (R631) and Exhibit # 2455 < page 77/96 Google doc dated 10/17/14a lso that had to do with getting ip address https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS and the Solicitor General said it because of the RE: Subpoena dated 10/3/14. *we do not have copies of the exigent circumstances request to Google , or the testimony in the briefs, but I have in my notes and also it is in Judge Wright Order 12/9/14.

When Def Attorney got up on rebuttal, one of the Justices asked him his response the the State on the pros subpoena. Mr Kaiser stated that that was the first time he had ever heard of that claim. Not in any Brief, or brought up in any court and that he stands by his Brief.

 

[arkansasmimi]

Solicitor Generals "facts" are not factual. At least if you look at what was stated in Judge Wrights Order. Plus the Def is saying (JMHO) that according to Statute that Pros can not issue pros subpoenas in a criminal case. Period. Here they did. There were multiple questions asked by this. Kinda got a little heated at end of Solicitor Generals time when Justice Josephine Hart asked question and then had to restate what she asked. *She also asked why would the PCSO not go to a court and get a search warrant if they needed it for evidence. Solicitor General stated that 10/3/14 was well after AL arrested, confessed and BC body located. But again that is now what was stated in the OH in Nov.

Inv Drew Evans spoke about getting records, then there is testimony from Inv Michael Hendrix in trial about ip address and 10/3/14: pg 238/558 https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS
Snip
I received the text records from TextMe for the 914 number on October 3rd of 2014, and (1654) I traced the spoof number to a different person and address than the one it was registered to. (1655) AT&T provided the information on the 687-3833 number that the 914 number was traced back to, which was revealed to Crystal Lowery&#8217;s number at (1656) her 165 Randall Drive address. (1657) Crystal Lowery&#8217;s relationship to the Aaron Lewis is that she is his wife.

But if you look at Judge Wright Order dated 12/9/15 pg 4/29 https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS

The Defendant seeks to have this Court suppress any evidence obtained by subpoenas issued in this case to phone and IT companies. Investigator Jeff Allison of the Pulaski County Sheriff s Department - Criminal Investigative Division testified at the omnibus hearing that, after the disappearance of Beverly Carter had been reported, they made an exigent circumstance
request to AT&T to procure her cell phone and SMS data records. Once they had access to those records, they noticed that the victim had recently been in frequent contact - both phone calls and text messages - with a phone number with a New York area code. Having access to the victim's Apple iCloud account, they noticed that this phone number was one of the few in her call history not identified with a known associate. The investigators discovered that this same phone number was written on an envelope in the victim's car. one of the investigators called the number and discovered it was "spoof number" associated with a Google app called TextMe. They then, with the aid of prosecutors, made an exigent circumstances request to Google to obtain the call log of the TextMe number. They were able to thereby determine that the phone number was created by an account of the Defendant's wife, Crystal Lowery.

5/29
The Defendant has alleged that the information received by the investigators in this manner should be suppressed as an oveffeach of the prosecutor's subpoena power. The Defense is right that the prosecutor has no power to issue subpoenas in a criminal investigation. The Court, however, need not decide whether this alleged overreach was illegal. Because even assuming arguendo that the prosecutors improperly allowed the use of their subpoena to aid the police investigation, the Defendant has no standing to challenge these subpoenas, and suppression would not be the proper remedy. https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS

 

[arkansasmimi]

7 Justices listened I could be wrong, but don't think Justice Kemp or Justice Baker asked any questions.
Justices Wood, Goodson, Womack, Wynne and Hart asked questions.

Should be interesting to read their Opinion. JMHO

 

[SteveS]

In watching the video, the justice who was an older woman with gray hair (I think she was 2nd from the left) was stunningly clueless, in the way she made some statements that twisted what the state just said into something very different, and supposed the state had no answer on items that had just been explained otherwise. Since I can't imagine someone being that dumb, it felt to me like she had a bias or personal agenda, rather than any desire to consider what was being presented. Like watching the US Congress at work, where it's purely politics. Ugh.

"The Deputy Solicitor General more or less conceded when asked about the Motion to Dismiss that the Amended Sentencing was nunc pro tunc ..."

Actually he did not concede that at all, not even a little bit. He gave a quick response that was mostly centered around the concepts of
(a) we disagree with that idea,
(b) rather than spend time here on adding to what we already wrote, we will just say we stand by what we wrote, and
(c) here's a quick "even if" type answer, which he then followed by a "but we really don't buy the argument that we were not timely."