# Frank Wheeler v. State of Arkansas

> Supreme Court of Arkansas · December 4, 2025 · 2025 Ark. 196

URL: https://www.frixlaw.com/law-library/cases/11214131

## Case

- **Court:** Supreme Court of Arkansas
- **Decided:** December 4, 2025
- **Citations:** 2025 Ark. 196
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11214131. Public record. Not legal advice.