The opinion
Cite as 2025 Ark. 196
SUPREME COURT OF ARKANSAS
No. CR-24-606
Opinion Delivered: December 4, 2025
FRANK WHEELER
APPELLANT APPEAL FROM THE BOONE
COUNTY CIRCUIT COURT
V. [NO. 05CR-20-240]
STATE OF ARKANSAS HONORABLE JOHN R. PUTMAN,
APPELLEE JUDGE
CONCURRING OPINION.
SHAWN A. WOMACK, Associate Justice
I write separately to explain that the dissent’s premise—that we must now entertain
any unpreserved constitutional claim in criminal appeals—does not follow Evans.1 To be
clear, Evans turned on an extraordinary procedural posture. This posture invited, and
required, constitutional correction. It did not, however, upend this court’s precedent
concerning a defendant’s obligations in a criminal prosecution and appeal.
I. Discussion
In Evans, where the requirements of a statute directly conflicted with the
requirements of the Arkansas Constitution, the constitutional defect was squarely exposed
in the record, identified during oral argument, and subsequently examined through two
rounds of supplemental briefing ordered by this court. Both parties addressed the precise
1
Evans v. Harrison, 2025 Ark. 164.
constitutional question that proved dispositive. Evans thus involved (1) full adversarial
development, (2) repeated opportunities to brief the controlling constitutional issue, and (3)
a structural problem implicating the validity of every local ballot initiative in Arkansas. That
posture bears no resemblance to the one-shot criminal appeal in Wheeler where the appellant
alone bore responsibility for identifying, preserving, and developing any double-jeopardy
claim in the trial court and in his opening brief.2
Indeed, criminal appeals operate under the longstanding principle that a defendant
must raise constitutional objections at the first opportunity and preserve them for review. 3
Unlike the institutional defect in Evans—a structural problem affecting the administration
of initiated measures throughout the state—the argument in Wheeler is an individualized
double-jeopardy defense arising from a single prosecution. To equate that scenario with a
forfeited double-jeopardy claim in a routine criminal appeal stretches Evans beyond
recognition. The two cases are simply not comparable. So, to be clear, nothing in Evans
relaxes a criminal defendant’s preservation duties.
II. Conclusion
In short, Evans neither relaxed preservation requirements nor created a roving license
to revive forfeited constitutional claims. It simply reaffirmed that, once a plainly dispositive
constitutional violation has been presented and fully developed, this court must give effect
to the Arkansas Constitution. That unremarkable principle offers no basis to disturb the
preservation rules that bar Wheeler’s unpreserved double-jeopardy argument. The dissent’s
2
Wheeler v. State, 2025 Ark. App. 407.
3
See, e.g., Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001).
2
reliance on Evans is therefore misplaced, and its conclusion that review must be granted
misses the mark.
3