Cite as 2025 Ark. 198 SUPREME COURT OF ARKANSAS No. CR-24-606

Opinion Delivered: December 4, 2025 FRANK WHEELER APPELLANT APPEAL FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05CR-20-240] V. HONORABLE JOHN R. PUTMAN, JUDGE STATE OF ARKANSAS APPELLEE DISSENTING OPINION FROM THE DENIAL OF PETITION FOR REVIEW.

NICHOLAS J. BRONNI, Associate Justice

I’d grant the petition for review to reconsider our precedent on whether appellate

courts can review plain federal constitutional violations. From the filings below, it appears

that Petitioner was convicted of two separate offenses for the same course of conduct.

Compare Ark. Code Ann. § 5-14-103(a)(3)(A) (Supp. 2019) and Ark. Code Ann. § 5-14-

101(1)(A) & (B) (Supp. 2019) with Ark. Code Ann. § 5-14-125(a)(3) (Supp. 2019) and Ark.

Code Ann. § 5-14-101(11). If that’s the case, then Petitioner’s conviction violates the Fifth

Amendment’s prohibition against double jeopardy. See Brown v. Ohio, 432 U.S. 161, 168

(1977). Yet under this court’s precedent, the court of appeals could not reach that claim

because Petitioner’s trial counsel raised that issue only in a motion for directed verdict rather

than also raising it after judgment. See Wheeler v. State, 2025 Ark. App. 407, at 11–12 (citing

Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001)). In such circumstances, our procedural rule potentially runs afoul of due process, and

I’d grant the petition so that we can consider whether that’s the case. Indeed, it’s not at all

clear that our precedent—denying review on the ground that a defendant brought a

potential constitutional problem to the trial court’s attention too early—is an independent

and adequate state law ground for denying review. And rather than punt that issue to

another court, I’d resolve it––and this case––now. Anything less unnecessarily delays final

resolution of this case. I respectfully dissent.

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