The opinion
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.
2