Ivory v. State

Cite as 2017 Ark. App. 269ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-16-633
Opinion Delivered: May 3, 2017
LEE SULLIVAN IVORY
APPELLANT APPEAL FROM THE
INDEPENDENCE COUNTY
V. CIRCUIT COURT
[NO. 32CR-2014-223]
STATE OF ARKANSAS
APPELLEE
HONORABLE JOHN DAN KEMP,
JUDGE
AFFIRMED
BART F. VIRDEN, Judge
An Independence County jury convicted appellant Lee Sullivan Ivory of possession
of a controlled substance, possession of drug paraphernalia, and failure to appear. He was
sentenced as a habitual offender to an aggregate term of forty-two years in prison. He does
not challenge the sufficiency of the evidence supporting his convictions. His only argument
is that the trial court erred in permitting him to represent himself at trial. We affirm.
I. Arraignments and Pretrial Hearings
A. Arraignment (Drug Offenses)–November 18, 2014
On November 14, 2014, the State filed an information charging Ivory with
possession of a controlled substance and possession of drug paraphernalia on October 30,
2014. At his arraignment, the trial court informed Ivory of the range of punishment available
for each Class D felony offense. The following colloquy occurred:
Cite as 2017 Ark. App. 269COURT: And since you’re facing a possible prison sentence, you have the right
to the assistance of counsel. If the Court determines you’re an indigent
and can’t afford to hire an attorney, then the Court can appoint an
attorney which will be paid for by the State in representing you.
IVORY: I waive all them rights.
COURT: Okay, so you’re wanting to waive your right to an attorney?
IVORY: I waive it all. I want to defend myself.
COURT: Okay, before the Court can allow you to do that, you’re going to have
to fill out some paperwork. Can you read and write?
IVORY: Yes.
....
COURT: I’m going to need to have a hearing to determine that you’re
voluntarily, that you’re knowingly, and that you’re intelligently
waiving your right to an attorney and that you’re competent to do so.
So we’ll give you these forms and I’ve got to make those
determinations before the Court is going to allow you to waive an
attorney and represent yourself.
IVORY: Okay.
....
COURT: Mr. Ivory, when you appeared earlier this morning, you’d indicated
to the Court that you wanted to waive your right to an attorney. Is
that correct?
IVORY: That’s right, sir.
....
COURT: [S]ince you are requesting to represent yourself and waive your right
to an attorney, the Court needs to make a determination if you’re
voluntarily, knowingly, and intelligently waiving your right to an
attorney and that you’re competent to do so. And for the Court to do
that, you’re going to have to answer some questions that I’m going to
ask you regarding these issues.
2
Cite as 2017 Ark. App. 269....
COURT: How old are you?
IVORY: Fifty years old.
COURT: Are you a high school graduate?
IVORY: No, sir. I have a GED.
COURT: Do you have any college hours?
....
IVORY: One semester.
COURT: What college?
IVORY: Shorter College, North Little Rock.
COURT: Do you understand these proceedings here today?
IVORY: Yes, I do.
COURT: Is there anything that prevents you from understanding these
proceedings?
IVORY: Due to lack of reading my law books and the lack of law material in
the county jail, that’s it.
COURT: Are you under the influence of drugs or alcohol today?
IVORY: No, sir.
....
COURT: Since you’re facing two [Class D felonies], you’re facing a maximum
of not more than twelve years in prison or fines of not more than
twenty thousand dollars or both. So do you understand the maximum
range of punishment?
IVORY: Yes.
3
Cite as 2017 Ark. App. 269COURT: And do you understand that under the Constitution of the United
States and the Constitution of the State of Arkansas that you’re entitled
to and will be provided legal counsel free of charge if you’re financially
unable to obtain legal counsel without causing substantial hardship to
yourself or your family? Do you understand that?
IVORY: Yes.
COURT: Do you understand that the Court will not continue further in these
proceedings until counsel is provided if you request it? And knowing
this, do you voluntarily and with knowledge of these rights, waive
your right to counsel?
IVORY: Yes.
COURT: Do you further understand that even if you’re allowed to waive your
right to counsel at this time, that that shall not preclude you or prevent
you from claiming your right to counsel in these proceedings until the
proceedings are completed. Do you understand that?
IVORY: Right. Yes, sir.
COURT: Also I need to inform you that you’re entitled to legal counsel at every
stage of these proceedings where substantial rights of a criminal accused
may be affected. So do you understand that?
IVORY: Could you repeat that again?
COURT: Okay. You’re entitled to have legal counsel at every stage of these
proceedings where substantial rights of a criminal accused may be
affected. So do you understand that?
IVORY: Yes.
COURT: Okay, I need to advise you of some of the dangers and disadvantages
of self-representation that include but are not limited to the following.
There’s a danger of knowing when or if you should waive certain
rights. Do you understand that?
IVORY: Yes.
COURT: The Rules of Criminal Procedure and the Rules of Evidence will be
enforced by this Court. Do you understand that?
4
Cite as 2017 Ark. App. 269IVORY: Yes.
....
COURT: The Court is not going to advise you one way or another in this case
like an attorney would. So do you understand the Court’s not going
to assist or advise you? Do you understand that?
IVORY: Lead me, right.
COURT: You do?
IVORY: Yes.
COURT: Also, a working knowledge of court procedure, of the rules of
evidence, and of conducting a hearing or trial are essential. So do you
understand that?
IVORY: Yes.
COURT: If motions or objections are not timely or correctly made, then they
will not be considered by the court. Do you understand that?
IVORY: That’s right. Yes.
COURT: The decision to represent yourself is not necessarily a wise decision.
Do you understand that?
IVORY: No, I don’t understand that one, sir.
COURT: Okay. The decision to represent yourself is not a wise decision. Do
you understand that?
IVORY: I object to that. I object to that.
COURT: You have to speak up. I’m not hearing you.
IVORY: I object to that answer, sir.
COURT: Well, it’s my duty to inform you that the decision to represent yourself
is not a wise decision. Do you understand that?
IVORY: Yes.
5
Cite as 2017 Ark. App. 269COURT: You would be permitted to talk to legal counsel concerning these
matters should you desire to do so. Do you understand that?
IVORY: Yes, sir.
COURT: Okay, I need to inquire a little bit about your background, education,
court experience, and knowledge of legal proceedings. Let’s see, you
told me you’re fifty years old, you’ve got a GED, you’ve got one
semester of college at Shorter College. Is that correct?
IVORY: Yes.
COURT: And you said that you understand these proceedings, correct?
IVORY: Yes.
COURT: And that you understand the charges and the range of punishment for
those charges, correct?
IVORY: Yes.
COURT: Have you ever been required to be in court on a felony charge in the
past?
IVORY: No, sir.
COURT: Okay, so this is the first felony charge that you’ve had—facing?
IVORY: Not the first one. My first class D felony.
COURT: Okay. So have you had other felony charges where you’ve been
required to be in court before?
IVORY: Yes.
COURT: That’s not a class D felony?
IVORY: Yes, it was a B.
COURT: A B felony. And in that case, did you have an attorney representing
you?
IVORY: On one case I think I fired an attorney and I went through the legal
process myself.
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Cite as 2017 Ark. App. 269COURT: So you represented yourself in that case?
IVORY: Yes.
COURT: Have you had other B felonies or other felonies where you’ve been
required to be in court before?
IVORY: Yes.
COURT: What classification felonies were they?
IVORY: A Federal case.
COURT: Excuse me?
IVORY: A federal case.
COURT: A federal case. And did you have an attorney representing you in the
federal case?
IVORY: Yes.
COURT: So you do have some knowledge of court procedure from the past,
correct?
IVORY: Yes.
COURT: And you have some knowledge of legal proceedings from the Federal
Court case plus the other B felony case, correct?
IVORY: Correct.
COURT: Any other court appearances on any other felony cases other than these
two, the federal case and the B felony?
IVORY: Yes. I’ve had quite a few other cases.
COURT: Did you have an attorney representing you on any of those other cases?
IVORY: Yes.
COURT: How many? Do you recall?
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Cite as 2017 Ark. App. 269IVORY: I figure probably about four cases.
COURT: Okay. Did you have some other cases where you’ve represented
yourself and were allowed to waive an attorney?
IVORY: Misdemeanor cases.
COURT: So you had four other felony cases that you had attorneys on, correct?
Is that right?
IVORY: Right.
COURT: So you’ve had some other knowledge of legal proceedings and court
proceedings in the past, correct?
IVORY: Yes, sir.
COURT: Now, has anybody applied any kind of force or made any kind of
threats against you to get you to waive your right to an attorney?
IVORY: No, sir.
COURT: Are you doing this of your own free will?
IVORY: Yes, sir.
COURT: And you said you understand the proceedings here today, right?
IVORY: Sir, I’m giving answers to the Court and I’m getting badgered, sir, in
court.
COURT: Speak up a little.
IVORY: I’m being badgered questions in Court, sir. It’s the same questions over
and over. I feel like I’m being leaded.
COURT: I’ve just got to make a determination whether you’re competent to
waive an attorney and you’re voluntarily doing it, knowingly doing it,
and intelligently doing it. Are you currently receiving any kind of
psychiatric treatment?
IVORY: No, sir.
COURT: Have you in the past?
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Cite as 2017 Ark. App. 269IVORY: No, sir.
COURT: Has anybody made any promises to you to get you to waive your right
to an attorney?
IVORY: Sir, I’m being badgered.
COURT: Has anybody made any promises to you to get you to waive your right
to an attorney?
IVORY: That question has already been answered.
COURT: No, I asked you if you’d been threatened or anybody applied any kind
of force to get you to waive an attorney. I’m asking you now has
anybody made any promises to you to get you to waive your right to
an attorney? Do you understand that? Has anybody made any promises
to you to get you to waive your right to an attorney? Yes or no?
IVORY: Haven’t no one. No.
COURT: What’s the answer?
IVORY: No.
COURT: Okay, thank you. Mr. Ivory, after you’ve been well and sufficiently
advised of your rights and also of the dangers and disadvantages of
representing yourself, the Court finds that you have voluntarily,
knowingly, and intelligently waived your right to an attorney and that
you’re competent to do so. And the Court will allow you to represent
yourself in this case.
At the conclusion of the arraignment, the trial court scheduled a trial to begin on
January 14, 2015, with a pretrial hearing on January 6, 2015. The trial court entered an
order allowing Ivory to proceed pro se. 1 It provides that Ivory was questioned concerning
his right to counsel and his right to represent himself and was informed that he was entitled
to counsel at every stage of the proceedings where substantial rights may be affected. The
1
The trial court entered a waiver-of-counsel order, but Ivory refused to sign it.
9
Cite as 2017 Ark. App. 269order also provides that Ivory was advised of the dangers and disadvantages of self-
representation including, but not limited to, the following:
1. The dangers of knowing when or if he should waive certain rights.
2. That the rules of criminal procedure and rules of evidence will be enforced by this
court [and] he should be aware of these.
3. That the court will not assist the defendant, and that a working knowledge of court
procedure, the rules of evidence, and conducting a trial and/or hearing are essential.
4. That if motions or objections are not timely and correctly made, they will not be
considered by this court.
5. That the decision to represent himself is not wise.
6. That he has talked with legal counsel concerning these matters and hazards or been
afforded that right.
7. That the court has inquired of the defendant’s background, education, court
experience, and knowledge of legal proceedings and has observed the conduct of the
defendant.
8. That the court finds that the defendant, after being well and sufficiently advised of
his right and the pitfalls of representing himself, and that he voluntarily, knowingly,
and intelligently waives and is competent to do so.
B. Pretrial Hearing–January 6, 2015
The trial court noted that Ivory had waived his right to an attorney at his previous
court appearance, and Ivory affirmed that understanding. The trial court stated that,
although the trial was scheduled to begin the following week, it would grant a continuance
because the State had not yet received lab results. Trial was reset for April 15, 2015, with a
pretrial hearing on February 19, 2015. Ivory said, “Okay, Your Honor. Due to the process
of my [unintelligible] the Independence County Detention Center, you know, don’t have
the law material at my request. Is there any way possible to request an OR on my own due
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Cite as 2017 Ark. App. 269to my legal information?” After questioning Ivory, the trial court agreed to release him on
his own recognizance (OR) but instructed him to show up for every court appearance and
to sign certain conditions, including submitting to drug tests every week. The trial court
reminded Ivory that the next court date was February 19.
C. Pretrial Hearing–February 19, 2015
“Agent Houston” reported to the trial court that on January 8, 2015, Ivory reported
for drug testing but could not produce a urine sample. He was told to come back later, but
he did not return. Houston said that Ivory then failed to report on January 15, 22, and 29,
and February 5, 12, and 19. The trial court noted that Ivory was not present at the hearing,
ordered a warrant to issue based on his failure to appear, and set a new cash bond at $20,000.
D. Arraignment (Failure to Appear)–July 23, 2015
The trial court noted that the State had amended its information to include a charge
of failure to appear, a Class C felony, and informed Ivory of the range of punishment
available for committing that offense. The trial court then said,
And since you’re facing a possible prison sentence, you have the right to the assistance
of counsel. If the Court determines you’re an indigent and can’t afford to hire an
attorney, then the Court could appoint an attorney which would be paid for by the
State in representing you. Do you have an attorney representing you?
Ivory said, “No, sir, I’ve been representing myself.” The trial court responded,
“Okay. Because you appeared it looks like several months ago in this case and you were
allowed to proceed pro se representing yourself.” Ivory said, “Yes, sir.” The trial court
asked, “Do you want to continue to do that?” Ivory replied, “Yes, sir.” Ivory then explained
that he had failed to appear on February 19 because he was incarcerated, and he asked the
court to reinstate his OR bond or to lower the cash bond. He said, “I was out for my OR
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Cite as 2017 Ark. App. 269bond because I was studying on my case. I couldn’t verbally put in a petition of saying that
the jail don’t have the qualifications of my legal qualification to study my case.” The State
objected, and the trial court denied Ivory’s request. The trial court set the case for trial on
September 23, 2015, with a pretrial hearing on August 25, 2015.
E. Pretrial Hearing–August 25, 2015
The trial court noted that Ivory had been representing himself and asked Ivory
whether he wished to continue to do so. Ivory said, “Yes, sir.” Ivory again requested to be
released on his own recognizance “to study up on [his] case.” The State objected, and the
trial court denied Ivory’s request. An additional pretrial hearing was scheduled one day prior
to trial.
F. Pretrial Hearing–September 22, 2015
The following colloquy occurred:
COURT: Mr. Ivory, you have previously appeared before the Court and the
Court has made a determination that you’re going to be allowed to
represent yourself. And is that what you still want to do for your trial?
IVORY: Yes, sir.
COURT: Okay. Let’s see, Mr. Ivory, your case is currently set for trial this week,
however, from some of your actions in court on previous court dates
and earlier this morning, the Court is going to order an Act 3
evaluation in your case for a psychological evaluation so the Court can
be assured that you’re competent for trial.
The trial court held review hearings on October 29 and November 9, 2015, but
suspended proceedings because the court had not received the results of the Act 3
evaluation. Another hearing was set for November 24, 2015.
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Cite as 2017 Ark. App. 269G. Pretrial Hearing–November 24, 2015
The trial court noted that it had received the forensic report from Ivory’s Act 3
evaluation. The following colloquy occurred:
COURT: Mr. Ivory, the Court received a forensic report in your case on a Act
3 evaluation. Based on that forensic report, the Court is going to enter
an order that you are competent to proceed to trial. And the Court
will set your case for trial for the jury trials scheduled for March 9th.
And a pretrial hearing will be scheduled for February 2nd. You’d
already had a hearing and you’d waived an attorney, correct?
IVORY: Yes.
COURT: Do you still wish to waive an attorney?
IVORY: Still wish to waive it.
COURT: Okay, so we’ll note that you’re pro se.
IVORY: Your Honor, I don’t have no legal material to study my case. The jail
doesn’t have the proper material.
Ivory again requested a reduction of his bond or removal of the cash bond. The State
objected, and the trial court denied Ivory’s request. On February 2, 2016, the trial court set
an additional pretrial hearing one day before the start of trial.
H. Pretrial Hearing–March 8, 2016
The following colloquy occurred:
COURT: Mr. Ivory, you previously appeared in court and we had a hearing and
you waived your right to an attorney. And do you still desire to
represent yourself and waive your right to an attorney?
IVORY: Yes, sir.
COURT: Your case is scheduled for a jury trial tomorrow. Is it still your desire
to have a jury trial?
IVORY: Yes, sir.
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Cite as 2017 Ark. App. 269....
COURT: And Mr. Ivory, what the Court is going to do is appoint standby
counsel. That standby counsel will be Mr. Tommy Kendrick. Mr.
Kendrick will be available in the courtroom at the trial to answer any
questions that you might have while your trial is going on. You don’t
have to ask him any questions if you don’t want to. He’s there available
as standby counsel.
IVORY: Okay.
....
COURT: And [Mr. Kendrick] won’t be sitting at the counsel table. You’ll just
be sitting there by yourself. He’ll be sitting over to the side and
listening to the trial.
But go ahead and fill out an affidavit so that I can determine that you
would be entitled to the attorney should you so desire just as far as
your financial condition and we’ll get that filed in the record.
....
KENDRICK: Judge, returning to Mr. Ivory’s case, he has refused to cooperate with
the screening or provide any information to us.
II. Jury Trial–March 9, 2016
In chambers before trial began, the trial court permitted Ivory to wear his yellow jail
uniform because, even though street clothes had been offered and made available to him,
he did not want to wear someone else’s used clothing. The trial court then explained the
trial procedure. Ivory made an opening statement.
The evidence revealed that Ernie Gillihan with the Independence County Sheriff’s
Office stopped Ivory for speeding. When Gillihan ran Ivory’s name and date of birth, he
learned that Ivory’s driver’s license had been suspended and that he had warrants. Arkansas
State Trooper Jeremy Hughes, who had been called to assist, watched other officers speaking
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Cite as 2017 Ark. App. 269at the front of Ivory’s truck while Ivory stood back and leaned against his truck. When the
officers told Ivory to approach, Hughes saw Ivory make an arm motion toward the bed of
the truck and heard a “kind of clanking sound.” Hughes found a device for smoking
methamphetamine in the truck’s bed. On the way to the station, Ivory admitted having
“some dope on him.” He then spat a plastic baggie containing a crystal-like substance into
Gillihan’s hand. Kim Brown, a drug chemist at the Arkansas State Crime Lab, testified that
the substance in the baggie was methamphetamine weighing 0.4919 grams, plus loose
powder weighing 0.1336 grams. The pipe was tested as well, and it was found to have
burned methamphetamine residue on it. Finally, Jennifer Neal, a deputy clerk for the
Independence County Circuit Clerk’s Office, testified that Ivory did not appear in court on
February 19, 2015.
Ivory made a closing argument. The jury found him guilty on all counts. In the
sentencing phase, when the State moved to introduce Ivory’s prior convictions, Ivory
objected, saying that he had “done his time” and had not been “on paper” since 2008. The
trial court overruled his objection. Ivory was sentenced as a habitual offender to twelve years
on possession of methamphetamine, ten years on possession of drug paraphernalia, and
twenty years for failure to appear. The trial court ran the sentences consecutively for a total
of forty-two years’ imprisonment. Ivory filed a timely appeal to this court.
III. Waiver of the Right to Counsel
Ivory argues that the trial court erred in concluding that he had knowingly and
intelligently waived his right to counsel and in permitting him to represent himself. The
Sixth Amendment to the United States Constitution, made obligatory upon the states by
15
Cite as 2017 Ark. App. 269the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to
have the assistance of counsel for his defense. Brown v. State, 2012 Ark. App. 314, 416
S.W.3d 260. Article 2, section 10 of the Arkansas Constitution provides that an accused in
a criminal prosecution has the right to be heard by himself and his counsel. Id. It is also well
established that an accused has a constitutional right to represent himself. Williams v. State,
2009 Ark. App. 684, 372 S.W.3d 358.
The constitutional right to counsel, however, is a personal right and may be waived.
Brown, supra. There are three requirements that must be met before allowing a defendant to
proceed pro se: (1) the request to waive the right to counsel must be unequivocal and timely
asserted, (2) there must have been a knowing and intelligent waiver, and (3) the defendant
must not have engaged in conduct that would prevent the fair and orderly exposition of the
issues. Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999).
The Arkansas Supreme Court has held that the trial court maintains a weighty
responsibility in determining whether an accused has knowingly and intelligently waived
his right to counsel. Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). The accused must
have full knowledge or adequate warning concerning his rights and a clear intent to
relinquish them before a waiver can be found. Id. The determination of whether any
defendant intelligently waived his right to counsel is dependent upon the particular facts and
circumstances of the case, including the background, the experience, and the conduct of
the accused. Mayo, supra. Significantly, every reasonable presumption must be indulged
against the waiver of the fundamental constitutional right to counsel. Oliver v. State, 323
Ark. 743, 918 S.W.2d 690 (1996). In determining whether a defendant knowingly and
16
Cite as 2017 Ark. App. 269intelligently waived his constitutional right to counsel, our standard of review is whether
the trial court’s finding was clearly against the preponderance of the evidence. Brown, supra.IV. Discussion
A. Ivory’s Request Was Unequivocal and Timely Asserted
Ivory sought to waive his right to counsel at his first court appearance; thus, his
request was timely. Ivory argues that “the Appellant’s waiver was equivocal based on
Appellant’s lack of sufficient legal materials with which to prepare.” We cannot agree. Ivory
complained of the lack of legal material in conjunction with his requests to be released on
his own recognizance or to have his cash bond reduced. He said nothing about hiring his
own counsel or having counsel appointed to represent him. Rather, Ivory insisted on
representing himself at his arraignments, and he reaffirmed his desire at each pretrial hearing
that he attended. His request to represent himself was unequivocal. We hold that the first
Mayo requirement was met.
B. Ivory’s Waiver Was Made Knowingly and Intelligently
In Faretta v. California, 422 U.S. 806 (1975), the United States Supreme Court stated
that, although a defendant need not have the skill and experience of a lawyer in order to
competently and intelligently choose self-representation, he “should be made aware of the
dangers and disadvantages of self-representation so that the record will establish that he
knows what he is doing and his choice is made with eyes open.” Id. at 835 (citing Adams v.
United States ex rel. McCann, 317 U.S. 269 (1942)). The Faretta Court further noted that
“technical legal knowledge as such [is] not relevant to an assessment of [a defendant’s]
knowing exercise of the right to defend himself.” Id. at 836. A specific warning of the
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Cite as 2017 Ark. App. 269dangers and disadvantages of self-representation, or a record showing that the defendant
possessed such required knowledge from other sources, is required to establish the validity
of a waiver. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999).
Ivory contends that he was not explicitly informed that he had an absolute
constitutional right to counsel. While the trial court did not use the word “absolute,” the
trial court clearly informed Ivory of his constitutional right to counsel at the beginning of
both arraignments. The trial court also advised Ivory that he could have counsel free of
charge if it was determined that he is indigent, although the record shows that Ivory did not
cooperate with that determination. The trial court further told Ivory that he was entitled to
counsel at every stage of the proceedings and that he could change his mind about self-
representation at any time.
Ivory further argues that the trial court did not mention that, by proceeding pro se,
he was waiving his rights under Ark. R. Crim. P. 37, that the trial court did not inform him
of “specific substantive dangers” of representing himself; that the trial court “never widened
the inquiry” after his arraignments; and that the trial court failed to apprise him of the new
range of punishment available once he was looking at three charges instead of two. Ivory
submits that Williams, supra, presents a “great example” of how a trial court should interview
a defendant wishing to proceed pro se. We agree; however, there is no set script, and
whether there has been a knowing and intelligent waiver is judged by each case’s particular
facts and circumstances. Mayo, supra.Here, the trial court made a sufficient inquiry, although not every possible downside
to self-representation was discussed. The trial court’s inquiry revealed that Ivory was fifty
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Cite as 2017 Ark. App. 269years old, could read and write, had a GED and one semester of college, had some
knowledge of court procedure from past cases where he had been represented by counsel,
and had previously represented himself on a felony charge and some misdemeanor charges.
The trial court informed Ivory of the ranges of punishment available for each offense. The
trial court warned Ivory that his motions and objections would not be considered if they
were not timely and correctly made, that he was waiving certain rights by representing
himself, that he should be aware of the rules of criminal procedure and rules of evidence,
that the trial court would not assist or advise him during the trial, and that representing
himself was not a wise choice. The trial court told Ivory that he could speak with an attorney
about those warnings if he desired. We cannot say that the trial court’s determination—that
Ivory knowingly and intelligently waived his right to counsel—was clearly against the
preponderance of the evidence. We hold that the second Mayo requirement was met.
C. Ivory Did Not Engage in Conduct That Prevented the Fair and Orderly
Exposition of the Issues
According to Ivory, his failure to act as an experienced criminal defense attorney in
certain situations amounted to conduct that prevented the fair exposition of the issues. We
disagree with Ivory’s interpretation of what conduct is necessary to prevent the fair and
orderly exposition of the issues. The record does not show that Ivory was disruptive or
disorderly or that he abused the dignity of the courtroom. See, e.g., Pierce v. State, 362 Ark.
491, 209 S.W.3d 364 (2005). Rather, while Ivory had previously failed to appear for a
hearing, he did appear at his trial; he prevailed on an argument about his clothing choice;
he gave an opening statement and closing argument; he cross-examined the State’s witnesses
and called a witness of his own; he requested permission from the court before approaching
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Cite as 2017 Ark. App. 269witnesses; and he raised objections at trial and in the sentencing phase. We hold that the
third Mayo requirement was met.
D. Standby Counsel’s Assistance Was Not Substantial
Ivory argues that the participation of standby counsel was not substantial such that
counsel could be said to have effectively conducted a defense. The assistance of standby
counsel can rise to a level where the defendant is deemed to have had counsel for his defense,
thereby mooting any assertion of involuntary waiver. Brown, supra. We agree, and the State
appears to concede, that the record shows that Kendrick’s assistance was not substantial.
Affirmed.
HARRISON and GLOVER, JJ., agree.
Hancock Law Firm, by: Sharon Kiel, for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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