Simpson v. State , 2015 Ark. App. LEXIS 139 ( 2015 )

Cite as 2015 Ark. App. 103
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-14-349
Opinion Delivered February 18, 2015
JAMAAL DULANE SIMPSON
APPELLANT APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
[NO. CR-2012-704-1]
V.
HONORABLE ROBIN F. GREEN,
JUDGE
STATE OF ARKANSAS
APPELLEE REMANDED
M. MICHAEL KINARD, Judge
Jamaal Dulane Simpson appeals from his convictions of delivery of a controlled
substance (cocaine) and possession of drug paraphernalia, for which he was sentenced as a
habitual offender to consecutive prison terms totaling sixty-five years. He contends that the
trial court erred in denying his request for a competency hearing and in denying his attorney’s
motion to withdraw. We find merit in appellant’s first point, and we remand for the trial
court to hold a hearing to determine whether appellant was fit to proceed to trial.
In February 2013, appellant’s attorney filed notice of his intent to raise mental disease
or defect as a defense. Pursuant to Arkansas Code Annotated section 5-2-305(a) (Repl.
2013), the trial court ordered that appellant be examined by a psychologist to determine his
fitness to proceed and his mental capacity at the time of the alleged offenses. Appellant was
seen by Cara Hartfield, Ph.D., on two days in late July 2013. She filed her report in August.
Among other things, she found that appellant suffered from major depressive disorder, post-
Cite as 2015 Ark. App. 103
traumatic stress disorder, cocaine abuse, antisocial personality disorder, borderline personality
traits, and mild mental retardation. Ultimately, however, she concluded that appellant had
the capacity to understand the proceedings against him and to assist his attorney in his own
defense. She also concluded that, although appellant did have a mental defect and may have
had a mental disease at the time of the alleged offenses, he did not lack either the capacity to
appreciate the criminality of his conduct or the capacity to conform his conduct to the
requirements of the law.
In November 2013, appellant and his attorney filed separate motions seeking a
competency hearing. Counsel stated that, in light of both Dr. Hartfield’s observations in her
report and counsel’s own observations of appellant in their recent interactions, he believed
that there was substantial evidence that appellant was incompetent to stand trial, and he
requested a hearing to determine appellant’s competency. The trial court noted that appellant
had already had two mental evaluations1 and denied counsel’s motion. Appellant challenges
the trial court’s refusal to grant the requested hearing in his first point on appeal.
Arkansas Code Annotated section 5-2-309 (Repl. 2013) provides:
(a) If the defendant’s fitness to proceed becomes an issue, the issue of the defendant’s
fitness to proceed shall be determined by the court.
(b) If neither party contests the finding of the report filed pursuant to § 5-2-305, the
court may make the determination under subsection (a) of this section on the basis of
the report.
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Apparently, the court was referring to the evaluation completed by Dr. Hartfield in
this case and another one that the prosecutor alleged had been performed in connection with
a separate case in a different county. The record does not contain the other purported
evaluation.
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(c) If the finding of the report is contested, the court shall hold a hearing on the issue
of the defendant’s fitness to proceed.
Under section 5-2-309(c), the trial court is obligated to hold a competency hearing if the
defendant contests the competency finding in the mental-health professional’s section 5-2-305
report. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998).
The State argues that appellant’s point is barred because he failed to specifically cite
section 5-2-309(c) in his motion and because he did not, in fact, “contest” the report but
rather relied upon the observations found in it. We cannot agree. The statute simply requires
that one contest the report’s “finding.” The use of the singular is a clear reference to the
ultimate finding of fitness or competency. Appellant in his motion plainly took issue with Dr.
Hartfield’s finding that he was competent, and he requested a hearing. Under the statute,
appellant’s motion and request made a hearing mandatory. See Greene, supra.
Because the hearing was not held and because we find no additional error, see infra, a
new trial is not required unless it is determined that appellant was incompetent at the time of
his trial. Instead, we remand the matter to the trial court for it to hold a hearing to determine
whether appellant was competent at the time of his trial. See Greene, 335 Ark. at 29–30, 977
S.W.2d at 206. The outcome of that hearing will determine whether the trial court should
then order a new trial.
Appellant’s remaining point is that the trial court erred in denying his attorney’s
motion to withdraw that was filed eleven days before the scheduled trial date. In the motion,
counsel stated that appellant’s best interest was being compromised because appellant had lost
confidence in the attorney’s representation, disagreed with counsel’s interpretation of the law,
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and refused to accept counsel’s advice that he should accept a plea offer that had been
extended by the prosecutor. A supplement to the motion filed a few days later recited that
appellant had recently said that he would have physically assaulted his attorney had a locked
door not separated them.
While constitutionally guaranteed, the right to counsel of one’s choosing is not
absolute and may not be used to frustrate the inherent power of the court to command an
orderly, efficient, and effective administration of justice. Bullock v. State, 353 Ark. 577, 111
S.W.3d 380 (2003). Once competent counsel is obtained, any request for a change in counsel
must be considered in the context of the public’s interest in the prompt dispensation of
justice. Thomas v. State, 2014 Ark. App. 492, 441 S.W.3d 918. The decision whether to
grant or deny a motion to allow counsel to withdraw is a matter within the sound discretion
of the trial court, whose decision we will affirm in the absence of an abuse of discretion.
Bullock, supra. In addition, a defendant must show that prejudice resulted from the denial of
the motion to withdraw. Wilmoth v. State, 2009 Ark. App. 432. A court is not required to
allow a change in attorneys shortly before a trial date simply because there are differences or
disagreements between attorney and client. Bullock, supra; Burns v. State, 300 Ark. 469, 780
S.W.2d 23 (1989); Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999).
We find no abuse of discretion in the trial court’s decision in this case. Appellant had
already changed attorneys once before. The charges had been filed some sixteen months prior
to appellant’s scheduled trial date. However, as noted, this latest motion to withdraw was
filed just eleven days before appellant’s trial date. To the extent that appellant relies on his
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refusal, contrary to his attorney’s advice, to accept the plea offer as evidence that he was
prejudiced in this case, we note that the record provided to us does not specify the nature of
the offer or the sentence that appellant would have received had he accepted the deal. In any
event, we agree with the State that the appropriate question is whether counsel adequately
represented appellant, not whether appellant received a longer sentence by going to trial than
he might have received had he accepted the State’s offer. Even if we were to assume,
however, that appellant would have received a lesser sentence had he accepted the plea offer,
that fact would actually tend to show that counsel’s advice was realistic and practical. See
Burns, supra.
Remanded.
GRUBER and BROWN, JJ., agree.
Robert M. “Robby” Golden, for appellant.
Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellees.
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