Talley v. State

Cite as 2017 Ark. App. 550
ARKANSAS COURT OF APPEALS
DIVISION I
No.CR-17-17
OPINION DELIVERED: OCTOBER 25, 2017
DARRYL VINCENT TALLEY, JR.
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
FIRST DIVISION
V. [NO. 60CR-11-3766]
HONORABLE LEON JOHNSON,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED AND REMANDED FOR
CORRECTION
ROBERT J. GLADWIN, Judge
Appellant, Darryl Talley, appeals his convictions by the Pulaski County Circuit
Court on charges of robbery, theft of property, and employment of a firearm to commit
aggravated robbery, for which he received an aggregate sentence of fourteen years’
imprisonment. Appellant argues that the trial court erred in denying his request to represent
himself at trial and, as a procedural matter, that his sentencing order erroneously reflects that
he was convicted of a Class B felony rather than a Class C felony, theft of property. We
affirm appellant’s convictions and remand the case for the limited purpose of allowing the
trial court to correct the error in the sentencing order.
On an initial procedural note, the parties agree that there is an error that needs to be
corrected on the sentencing order. Appellant was charged with, among other charges, theft
of property with a value of $25,000 or more, a Class B felony offense, in violation of
Arkansas Code Annotated section 5-36-103(b)(1)(A) (Supp. 2011). The trial court found
Cite as 2017 Ark. App. 550
him guilty of the lesser-included offense of theft of property with a value of less than $25,000
but more than $5,000. It is clear from the transcript that appellant was convicted of the
lesser-included Class C felony, theft of property, but the sentencing order reflects a
checkmark beside the offense classification “B” for the theft-of-property conviction. The
ten-year sentence indicated on the sentencing order is consistent with the sentence
announced by the trial court in open court and is within the statutory range for a Class C
felony offense. Because the checkmark beside classification “B” rather than “C” appears to
be simply a clerical error, we hold that this is the type of error that trial court can correct at
any time by entering an amended sentencing order nunc pro tunc. See McCuen v. State,
338 Ark. 631, 999 S.W.2d 682 (1999). We also note that the sentencing order erroneously
indicates that appellant was sentenced to an additional term of suspended imposition of
sentence for the theft-of-property conviction. 1 Like the checkmark on offense classification
“B”, this is a clerical error. Accordingly, we remand for the limited purpose of allowing
the trial court to correct these errors. See Pascuzzi v. State, 2016 Ark. App. 213, at 1, n.2,
489 S.W.3d 709, 710, n.2.
I. Facts and Procedural History
On May 7, 2013, the State filed an amended felony information against appellant,
alleging in relevant part that on or about October 7, 2011, appellant committed against
Charleston Brown two felony offenses: (1) the Class Y felony of aggravated robbery; and
1
For the aggravated-robbery conviction, appellant was sentenced to a term of ten
years in the Arkansas Department of Correction (ADC), with a four-year firearm
enhancement, and to an additional seven-year suspended imposition of sentence. For the
theft-of-property conviction, he was sentenced to a term of ten years in the ADC to run
concurrently with the aggravated-robbery sentence.
2
Cite as 2017 Ark. App. 550
(2) Class B felony theft of property. In the information, the State also alleged that because
appellant employed a firearm to commit a felony, any sentence of imprisonment imposed
on him for committing that felony should be enhanced pursuant to Ark. Code Ann. § 16-
90-120(a)–(b) (Repl. 2015).
Appellant’s bench trial was held on May 2, 2016. Appellant preserved the issue now
before us by repeatedly asking, at the beginning of his trial, that he be allowed to represent
himself and be his own defense counsel. The trial court denied appellant’s repeated requests
to represent himself at trial and act as his own lawyer, and the trial court found appellant
guilty of having committed aggravated robbery, Class C felony theft of property, and of
having used a firearm to commit aggravated robbery. At the sentencing hearing held on
June 29, 2016, the trial court sentenced appellant to an aggregate sentence of fourteen years’
imprisonment pursuant to sentencing orders filed on July 6, 2016. Appellant filed a timely
notice of appeal on August 5, 2016.
II. Standard of Review and Applicable Law
A defendant in a criminal case has a Sixth and Fourteenth Amendment right to
represent himself at trial. Faretta v. California, 422 U.S. 806 (1975). A defendant in a criminal
case also has the right to represent himself at trial and act as his own lawyer pursuant to
article 2, ·section 10 of the Arkansas Constitution. Ivory v. State, 2017 Ark. App. 269, 520
S.W.3d 729. Whether a trial court erred in denying a defendant’s request to represent
himself at trial is an issue of law. State v. Blanchard, 236 P.3d 845, 848 (Ore. App. 2010).
This court reviews issues of law de novo. Howard v. State, 2010 Ark. App. 382.
3
Cite as 2017 Ark. App. 550
III. Discussion
At the start of appellant’s bench trial, he requested that the trial court allow him to
represent himself and act as his own lawyer. After the following colloquy that focused on
how much appellant knew about the law and courtroom procedure, the trial court denied
appellant’s request:
THE COURT: Set for bench trial today. Both sides ready for trial?
DEFENSE COUNSEL: We are, sir. However, the defense, I believe there is a pro se
motion my client would like to address to the court before we proceed.
THE COURT: Mr. Talley, good afternoon, sir.
APPELLANT: I’m revoking him as my public defender—
THE COURT: On what grounds?
APPELLANT: —and I would like to represent myself.
THE COURT: On what grounds?
APPELLANT: Oh, on what ground?
THE COURT: Yeah, that’s the question I asked you twice.
APPELLANT: Because I’m competent to withstand trial.
THE COURT: You are?
APPELLANT: Yes, I—
THE COURT: Do you know the rules of evidence?
APPELLANT: Yes, sir.
THE COURT: How far did you go in school?
APPELLANT: I went—I compl—went all the way in the 12th grade, from 9th to
12th grade, Little Rock Central High.
4
Cite as 2017 Ark. App. 550
THE COURT: And what did you do after school to learn about the law?
APPELLANT: What did I—I’m not schooled in law.
THE COURT: What do you know about the rules of evidence?
APPELLANT: Yes, sir.
THE COURT: What do you know about the rules of evidence?
APPELLANT: I know that the evidence must be brung forward if it’s requested by
law before I proceed in any of my cases or take any pleas. And I asked the gentleman
a couple of times—that there was revoked. It’s like they’re using scare tactics trying
to get me to cop pleas and I’m steady telling them no, I’m not waiving any of my
rights.
THE COURT: Okay. I’m not asking you about whether you’re waiving any of your
rights. I want to know what do you know about the law that governs what is
admitted into evidence and what cannot be admitted into evidence.
APPELLANT: I know the basic rule of affidavit.
THE COURT: Okay. Tell—rule of affidavits?
APPELLANT: Yes.
THE COURT: Okay. Do you know anything about the rules of chain of custody?
APPELLANT: Chain of custody?
THE COURT: Yes, sir.
APPELLANT: I don’t have any idea what—
THE COURT: Okay.
APPELLANT: Okay.
THE COURT: I’m looking at in these charges, one of them is a Class Y Felony. Do
you know what the charge—range of punishment is for a Class Y Felony?
APPELLANT: Yes, sir.
THE COURT: What is it?
5
Cite as 2017 Ark. App. 550
APPELLANT: Up to forty years or life.
THE COURT: And do you know what other charges you have?
APPELLANT: I think it was for a theft by receiving for a stolen car, stolen gun, which
I had absolutely nothing to do with—
THE COURT: No, no, no, no, no. I’m not asking—
APPELLANT: Oh, okay.
THE COURT: —you to cop a plea. I’m asking you to tell me what you know, okay?
APPELLANT: Oh, that’s what I—well, yeah, it’s right—as far as right now, I know
they were trying to charge me with a stolen car and a stolen firearm.
THE COURT: What’s the nature of your defense?
APPELLANT: What’s my nature of defense?
THE COURT: Yeah, what is your defense to these charges?
APPELLANT: What I filed for the chambers to the judge chamber, that’s all-
THE COURT: No, no.
APPELLANT: —that I electronically filed April 29th. And I also filed an affidavit of
truth this morning, May 2nd, that I have put on the court’s record.
THE COURT: Okay. Pretend that I just now asked you a question that requires you
to tell me what you have in your head as opposed to what I can read. Pretend that
I’m waiting for you to answer the question I just asked you.
APPELLANT: You asked me what I’m going to use for my defense?
THE COURT: What is your defense?
APPELLANT: My counsel.
THE COURT: No, no. Your own counsel is what you want. I want to know what
is the legal basis for your defense.
APPELLANT: My legal defense is what I filed.
6
Cite as 2017 Ark. App. 550
THE COURT: Do you know what alternative defenses you might assert under the
law?
APPELLANT: I have a right to my own private counsel.
THE COURT: No. Excuse me. Let me explain to you why I’m having this
conversation with you. You have the right in a criminal charge for two things. First
of all, you have the right to decide whether to plead guilty or not.
APPELLANT: Right.
THE COURT: Okay.
APPELLANT: Yes.
THE COURT: And secondly, you have the right to choose your lawyer -
APPELLANT: Right, that’s—okay.
THE COURT: If you opt-- if you are unable to afford a lawyer, the court has an
obligation to appoint a lawyer for you. If you assert that you want to represent
yourself, then I have a responsibility to determine whether or not you are competent
to defend yourself.
APPELLANT: That’s right.
THE COURT: In order for me to decide that, I’ve got to weigh the charges you face
and your knowledge of the law.
APPELLANT: Yes, sir.
THE COURT: So the reason I’m asking you these questions is not to play games
with you or try to embarrass you, I’m trying to determine whether or not you are
competent to do what a lawyer would have to do in order to provide you with an
adequate defense because under the law you have a constitutional right to what we
call effective counsel.
APPELLANT: Right.
THE COURT: And I do not have the right to allow you to ineffectively represent
yourself—
APPELLANT: Right.
7
Cite as 2017 Ark. App. 550
THE COURT: —any more than I have the right to allow a lawyer to provide you
with ineffective counsel. If l do not believe that you are effect—can mount an
effective representation, I do not have to listen to you say you want to revoke your
lawyer. I can say, your request to revoke counsel is denied. And that’s why I’m
having this inquiry.
APPELLANT: Yes.
THE COURT: Okay. So let’s start over. We can agree that you have no legal training?
APPELLANT: No, I’m not schooled in law.
THE COURT: Okay. That’s what I just told you.
APPELLANT: Yes.
THE COURT: We agree to that, right?
APPELLANT: Yes.
THE COURT: We agree that you are charged with a Class Y felony, which is the
highest range of punishment of felony short of capital murder, which is life without
parole, right?
APPELLANT: Yes. I understand.
THE COURT: Because Class Y is ten to forty or life, right?
APPELLANT: Yes.
THE COURT: We agree that you do not know anything about the alternative
defenses that can be asserted to the charges you face?
APPELLANT: Yes, I do. I do have access to my private—my own private attorney or
whatever—my own legal counsel.
THE COURT: I’m still trying to wait until you hear—say at least one word that would
constitute a defense to these charges. I know you’re pleading not guilty, but what—
as a judge, I have to know and the prosecution is entitled to know the nature of your
defense.
APPELLANT: I want you guys to prove their case, bring forth their evidence, which
I put in—I filed my motion for discovery and my preservation of evidence, and it—
and it needs to be answered.
8
Cite as 2017 Ark. App. 550
THE COURT: [Defense counsel], are you ready for trial?
DEFENSE COUNSEL: Yes.
THE COURT: Nature of defense?
DEFENSE COUNSEL: Your Honor, it’ll be general denial.
THE COURT: How many witness[es] do you have?
DEFENSE COUNSEL: Only the defendant if he chooses to testify.
THE COURT: Mr. Talley, based upon the inquiry the Court has undertaken, the
Court finds that you do not have the requisite knowledge in the law and the nature
of defense or in the kind of decision-making that would be necessary in order to
assert an adequate representation of yourself. In order to protect your constitutional
rights, the Court is going to deny your request to dismiss your counsel. [Defense
counsel], you are continually to be engaged and to maintain the defense on behalf of
Mr. Talley. Mr. Talley, do you have anything else you need to say before we move
on?
APPELLANT: Yes, sir. Out of my due process of law rights, that’s what I was saying,
like I need everything that’s been filed into THE COURT, I need a copy of
everything that was filed to THE COURT in my possession. I don’t have motions,
discoveries or any of this, so that’s why I filed my motion for discovery and my
preservation of evidence.
THE COURT: [Defense counsel]?
DEFENSE COUNSEL: Yes.
THE COURT: Has discovery been exchanged?
DEFENSE COUNSEL: Your Honor, I have gone over all the discovery with the
defendant, both when he was in G-Unit at the Pulaski County Jail, in my office and
in numerous visits here to the courtroom.
THE COURT: Has the State produced discovery requested by the defense?
DEPUTY PROSECUTING ATTORNEY: We have.
THE COURT: And when was that done? And I’m doing all this so there will be a
record because Mr. Talley, in case you disagree with my decision and you want to
9
Cite as 2017 Ark. App. 550
take an appeal, we’ll have a record so we’ll know that there was a defense motion to
produce discovery. There will be a response to the defense motion to produce. And
I want to make sure that’s all in the record.
DEFENSE COUNSEL: Your Honor, I may have misstated my answer to your question.
If discovery has been exchanged, I received discovery in 1366 in 2013 when I was
appointed to represent Mr. Talley at that time. Marion Humphrey was private
counsel for the defendant in 11-3766. He was—
THE COURT: I can help you. According to my notes, public defender was appointed
on November 7, 2011, in case 2011-3766. Public defender was relieved and Marion
Humphrey was appointed counsel for the defendant on February 6, 2012. Mr.
Humphrey represented the defendant until he moved to withdraw November 5,
2013. A public defender was reappointed on that date. Public defender has remained
appointed counsel for Mr. Talley since November 5, 2013, in 2011-3766.
DEFENSE COUNSEL: Your Honor, I do remember receiving a discovery packet from
[former defense counsel] on the date that he was released.
THE COURT: In case 2013-0066, public defender was appointed on April 15, 2013.
That’s you, right?
DEFENSE COUNSEL: Yes, sir.
THE COURT: [Deputy prosecuting attorney], when was discovery produced in that
case?
DEPUTY PROSECUTING ATTORNEY: Your Honor, I don’t have a date that it was
actually sent. I have that we scanned it—our case file in electronically on January 9,
2013, and it was provided shortly thereafter, discovery was filed by the defense.
THE COURT: [Defense counsel], is there any defense discovery request that is
outstanding at this time?
DEFENSE COUNSEL: No, there is not.
THE COURT: Court’s going to deny the motion—the pro se motion of the
defendant to relieve counsel. Mr. Talley, would you please have a seat at counsel
table beside your lawyer.
A trial court must grant a defendant’s request to represent himself at trial if three
circumstances are present: (1) the defendant’s request to waive his right to counsel and
represent himself must be unequivocal and timely asserted; (2) the defendant makes a
10
Cite as 2017 Ark. App. 550
knowing and intelligent waiver of his constitutional right to be represented by counsel; (3)
the defendant has· not engaged in conduct that would prevent the fair and orderly exposition
of his trial. Reed v. State, 2017 Ark. 246, 524 S.W.3d 929; Pierce v. State, 362 Ark. 491, 209
S.W.3d 364 (2005). The trial court must establish on the record that the defendant is making
a knowing and intelligent waiver of his right to counsel by engaging a colloquy with the
defendant that is sufficient to show that the defendant is aware of his right to counsel and is
aware of the danger in representing himself. Pierce, supra; Bledsoe v. State, 337 Ark. 403, 989
S.W.2d 510 (1999).
The trial court must question the defendant to make certain that he or she knows
the following information: (1) that the defendant is entitled to an attorney; (2) that the
defendant can have an attorney to represent him at trial even if he cannot afford an attorney;
(3) the advantages of being represented during trial by an attorney; (4) the drawbacks of not
being represented at trial by an attorney. Bledsoe, supra. A defendant’s lack of technical legal
knowledge is not relevant to an assessment of whether he has made a knowing and
intelligent waiver of his right to counsel. Whitlow v. State, 2016 Ark. App. 510, 506 S.W.3d
272. If a defendant’s request to represent himself at trial is proper, a trial court’s failure to
conduct a sufficient Faretta colloquy is reversible error. Pierce, supra. An erroneous denial of
a defendant’s request to represent himself at trial is not subject to harmless-error review.
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).
Appellant argues that his request to represent himself at trial was made in a timely
manner and was unequivocal. He points out that the trial court made no finding that, if
allowed to represent himself at trial, appellant would disrupt the proceedings or that his
11
Cite as 2017 Ark. App. 550
request to represent himself was untimely. Appellant acknowledges that the trial court did
have a colloquy with him, but notes that during such, the trial court focused on whether he
had the technical legal knowledge to represent himself at trial. At one point, the trial court
specifically observed, “[T]he Court finds that you do not have the requisite knowledge in
the law and the nature of defense or in the kind of decision-making that would be necessary
to assert an adequate representation of yourself.” Because the trial court’s colloquy with
appellant focused solely on his inability to act as his own lawyer, appellant urges that the
trial court committed reversible error in denying his request to represent himself at trial.
We agree with appellant’s claim that the trial court erroneously relied on a flawed
Faretta inquiry in making its decision; however, that does not end our inquiry. The State
discusses two reasons, notwithstanding appellant’s challenge to the trial court’s Faretta
inquiry, in support of its argument that the trial court did not err in its determination: (1)
appellant’s history of behavior aimed at delaying and disrupting the orderly, efficient, and
effective administration throughout the proceedings; and (2) appellant’s failure to make an
unequivocal request to represent himself.
In Faretta, supra, the United States Supreme Court held that an accused generally has
a right to defend himself under the Sixth Amendment, because it is the defendant who will
suffer the consequences if the defense fails. See id. at 819–20. That right is not, however,
without some limit. The Faretta court clearly explained that although a defendant need not
have the skill and experience of a lawyer to competently and intelligently choose self-
representation, he “should be made aware of the dangers and disadvantages of self-
12
Cite as 2017 Ark. App. 550
representation so that the record will establish that he knows what he is doing and his choice
is made with open eyes.” Id. at 835.
Additionally, where a defendant seeks to have another attorney represent him, his
request to proceed pro se is not unequivocal, and the analysis in Faretta and its progeny does
not apply. Whitlow, supra. Our supreme court has held that “the right to counsel may not
be manipulated or subverted to obstruct the orderly procedures of THE COURT, or to
interfere with the fair, efficient, and effective administration of justice, particularly when a
change of counsel is sought on the eve of trial, primarily for the purpose of delay, and
without making any effort to obtain substitute counsel.” Whitlow, 2016 Ark. App. 510, at
7–8, 506 S.W.3d at 276. And this court has explained that “[t]he constitutional right to
counsel is a shield, not a sword, and a defendant may not manipulate [the] right for the
purpose of delaying trial or playing ‘cat-and-mouse’ with THE COURT.” Coakes v. State,
2014 Ark. App. 298, at 5 n.1; see also Faretta, 422 U.S. at 834 n.46 (noting that the trial
court may terminate self-representation by a defendant who deliberately engages in serious
and obstructionist misconduct); Brown v. Gibson, 2012 Ark. 285, 423 S.W.3d 34 (holding
that a defendant’s pro se status may be terminated if he or she has demonstrated disruptive
behavior or used the right as a tactic for delay, disruption, distortion of the system, or
manipulation of the trial process); Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989) (stating
that the right to counsel of one’s choice 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).
13
Cite as 2017 Ark. App. 550
We take this opportunity to reiterate that the right to represent oneself “is not a
license to abuse the dignity of the courtroom. Neither is it a license not to comply with
relevant rules of procedural and substantive law.” Faretta, 422 U.S. at 834 n.46.
The record in this case reflects that, on November 11, 2011, the public defender’s
office was appointed to represent appellant. On February 6, 2012, the public defender’s
office was relieved as counsel, at least as to some charges against appellant, and former Circuit
Judge Marion Humphrey entered an appearance on appellant’s behalf. 2 Despite being
represented by counsel, appellant filed several pro se filings on November 5, 2013, March
30, 2015, September 14, 2015, January 11, 2016, and May 4, 2016.
On November 5, 2013, the date of the first trial setting, Mr. Humphrey brought to
the trial court’s attention one such pro se filing. After the trial court stated that it would not
entertain a pro se motion unless it was adopted by counsel, and after counsel declined to
adopt the pro se filing, appellant stated, “I’ll represent myself. I don’t have a problem.” Mr.
Humphrey then moved for and was granted permission to withdraw. The trial court then
began to inquire about appellant’s request to represent himself. Appellant stated that he
understood that under the Sixth Amendment, he had a right to counsel, but denied that he
was waiving that right. He claimed to be a “sovereign citizen” and insisted that he did not
understand the charges against him or the State’s right to proceed in the matter. Even after
the charges had been read and explained to him, appellant stated that he did not understand
“a single charge against him.”
2
The public defender’s office apparently remained appointed to represent appellant
on charges filed in a separate case number.
14
Cite as 2017 Ark. App. 550
After appellant denied waiving his right to counsel and stating that he did not
understand the charges against him, the trial court denied appellant’s request to proceed pro
se and again appointed the public defender’s office to represent him. Appellant, immediately
thereafter, objected to the public defender’s representation, refused to sign his notice sheet,
and exploded into an emotional outburst that runs on for eleven pages of the trial transcript
and includes the following examples of statements that, among others, appellant expressed
during his outburst:
APPELLANT: I swear to God, man. This whole courthouse is going to be—
APPELLANT: He ain’t representing me. Why he trying to represent me? No, no. I’m
not a party.
APPELLANT: Man, this is bullshit. All of y’all are going to have charges.
APPELLANT: Yeah, that’s what I’m saying. Now, that’s illegal time I did on this one.
That’s what I’m saying, he’s taking me into custody and you ain’t even representing
me, brother. That’s what I’m trying to say. I want to try to step in. I don’t matter
what you’re talking about, brother. Real talk. I swear to God, y’all better get this
sh__ in order. Except for me, everybody rules their goddamn charges. That’s what
I’m saying, you’re not representing me, Mr. David Sudduth, so you need to
withdraw because I ain’t going into custody. What the f__k am I going into custody
for?
APPELLANT: You can’t represent me. What’s your nationality? Are you—you are a
European (unintelligible) occupying the land of North America, which is—can you
bring your nationality forward for the record? Your nationality, Ireland. That’s what
I’m saying. That needs to be stated for the record. It don’t matter what they charge
me with, it’s criminal. They’ve got to produce their victim, you know what I’m
saying? This is Penal Code 16. I know. He’s just an officer of THE COURT, but I
know what I’m talking about in the law. So they are violating this. They got you to
put me in handcuffs. Really, I consented to it. I ain’t trying to fight, but I have a
right to protect myself. I’m saying what are they taking me into custody for? That’s
what I’m saying. I’m not trying to—if this is a way to try to get a mental evaluation—
I did. Yeah, they taking me into custody illegally. I’m trying to represent myself in
court as a prophet of the son. I need to talk to the man, they are trying to take me
in for a mental evaluation, which I don’t agree to, so they are violating constitutional
law and international law.
15
Cite as 2017 Ark. App. 550
Based on appellant’s behavior in the courtroom during the hearing, a second Act 3
evaluation was requested. At a hearing on March 30, 2015, appellant’s appointed counsel
brought to the trial court’s attention another request by appellant to represent himself. When
asked by the trial court whether he wished to represent himself, appellant stated that he
“would be proceeding in propria persona.” The charges against him were read, and appellant
once again insisted that he did not understand the charges or the penalty ranges. The trial
court denied appellant’s request, basing its decision, at least in part, on appellant’s failure to
follow court rules and procedure, including being habitually late for court.
At a hearing on September 14, 2015, appellant, through his appointed counsel, yet
again requested to represent himself. The trial court responded to the request, as follows:
THE COURT: I believe we went—we’ve gone through that. He’s not aware of the
process—
DEFENSE COUNSEL: We have.
THE COURT: —and doesn’t know what is going on, if I’m not mistaken, so I’m
not going to allow him to practice—practice law.
DEFENSE COUNSEL: Yes, sir.
THE COURT: He doesn’t know how to contain himself or the basis for the allegations
or anything, so.
At a hearing on January 11, 2016, appellant’s counsel brought to the trial court’s
attention yet another pro se motion by appellant—this time, indicating appellant’s intention
to hire a private attorney. According to appellant’s appointed counsel, appellant had made
allegations that his appointed counsel was involved in human trafficking. The trial court
16
Cite as 2017 Ark. App. 550
instructed appellant to hire an attorney before the trial date on May 2, 2016, and that he
would not be granting another continuance.
Appellant appeared with his appointed counsel, Mr. Sudduth, ready for trial on May
2, 2016, and addressed the trial court pro se, stating that he wished to revoke Mr. Sudduth
as his public defender and represent himself. During a colloquy between appellant and the
trial court, the trial court asked appellant what his defense was, to which appellant,
responded, “My counsel.” Appellant also stated that he had “access to my private—my own
private attorney or whatever—my own legal counsel.” The trial court ultimately denied
appellant’s request to dismiss his appointed counsel, and Mr. Sudduth represented appellant
at trial.
From the outset and continuing through the pendency of this case, appellant
repeatedly displayed an intent to delay and frustrate the orderly and effective administration
of justice. As early as his arrest in October 2011, he claimed to be a “sovereign citizen” and
refused to provide any identifying information. For more than four years, and throughout
the entire pretrial process, he manipulated both his right to counsel and his right to self-
representation in order to delay and obstruct the procedures of the trial court. He refused
to follow the rules and procedures of the trial court. He filed pro se pleadings despite being
represented by counsel, and he continued to do so even after several requests for self-
representation had been denied, and after having been warned by the trial court to follow
the rules. He displayed emotional and disrespectful outbursts in the courtroom. He
requested to represent himself, yet denied that he was waiving his right to counsel. He asked
17
Cite as 2017 Ark. App. 550
to hire a private attorney, asserting unfounded allegations that his appointed counsel was
involved in human trafficking.
We agree with the trial court’s assertion that appellant “[did not] know how to
contain himself[.]” As further evidence, even after his trial in May 2016, appellant refused
to sign a notice of his sentencing hearing date, claimed he was “a natural person . . . not
subject to any of your corporate states” and “not a United States Citizen,” and expressed
further disrespect to the trial court, interrupting the trial court’s comments with, “I don’t
give a damn, brother.” Because appellant was not “able and willing to abide by the rules of
procedure and courtroom protocol,” see Gilbert v. State, 282 Ark. 504, 505–06, 669 S.W.2d
454, 456 (1984), we affirm.
Furthermore, we hold that appellant’s request to represent himself was not
unequivocal. With his first request for self-representation, appellant altogether denied that
he was waiving the right to counsel. In later requests, he stated only that he was “proceeding
in propria persona,” yet not waiving any rights. Shortly before trial, he requested to hire a
private attorney, and then on the day of trial, and with regard to a new request to represent
himself, he stated that he had access to a private attorney. Because his request to represent
himself was not unequivocal, Faretta and its progeny do not apply. Whitlow, supra.
Affirmed; remanded for correction.
HARRISON and KLAPPENBACH, JJ., agree.
William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,
for appellant.
Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.
18