{ "id": 6138570, "name": "Frankie IRVIN v. STATE of Arkansas", "name_abbreviation": "Irvin v. State", "decision_date": "1998-05-27", "docket_number": "CA CR 97-1371", "first_page": "143", "last_page": "150", "citations": [ { "type": "official", "cite": "62 Ark. App. 143" }, { "type": "parallel", "cite": "972 S.W.2d 948" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "329 Ark. 554", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236159 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "559" }, { "page": "35", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/329/0554-01" ] }, { "cite": "323 Ark. 743", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445744 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0743-01" ] }, { "cite": "704 S.W.2d 608", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8719184 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/ark/288/0237-02" ] }, { "cite": "288 Ark. 237", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719184, 8719130 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0237-02", "/ark/288/0237-01" ] }, { "cite": "322 Ark. 367", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447482 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "373" }, { "page": "640", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/322/0367-01" ] }, { "cite": "329 Ark. 238", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236175 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/329/0238-01" ] }, { "cite": "331 Ark. 197", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604785 ], "weight": 8, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0197-01" ] } ], "analysis": { "cardinality": 608, "char_count": 12417, "ocr_confidence": 0.729, "pagerank": { "raw": 4.621887471290392e-08, "percentile": 0.2894020076073933 }, "sha256": "c3031c81952cd4d3a4d9950e59235c7b9718c7043be6674b2f9b190c3fbc5831", "simhash": "1:c7de06ad7513893a", "word_count": 2155 }, "last_updated": "2023-07-14T22:09:37.997804+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Griffen and Crabtree, JJ., agree." ], "parties": [ "Frankie IRVIN v. STATE of Arkansas" ], "opinions": [ { "text": "John F. Stroud, Jr., Judge.\nFrankie Irvin was charged as a habitual offender with the offenses of aggravated robbery, theft of property, and attempted capital murder. The murder charge was apparently dropped, and a date was set for trial by jury on the remaining two charges. Mr. Irvin\u2019s retained counsel, A. Wayne Davis, failed to appear in Desha County Circuit Court on the trial date. At a hearing in chambers with Mr. Irvin and two prosecuting attorneys, the trial court stated that Mr. Davis was not excused even though the court had been told that he had been fired and he had faxed the court a motion to withdraw the night before trial. The court also stated that it would issue an order for Mr. Davis to show cause why he should not be held in contempt. Mr. Irvin then told the court he needed \u201csomeone to represent me that will represent me in my best interest.\u201d The court treated his request as a motion for a continuance and denied the motion. Mr. Irvin\u2019s trial without counsel followed. He was convicted of aggravated robbery and theft of property, and was sentenced to a term of 240 months in the Arkansas Department of Correction.\nOn appeal Mr. Irvin contends that (1) he was denied his constitutional right to assistance of counsel at trial, and (2) his continued incarceration for a conviction based upon \u201cclear error\u201d constitutes a denial of due process. The State concedes that the trial court deprived appellant of his Sixth Amendment right to counsel. We agree and therefore reverse and remand for a new trial.\nThe Sixth Amendment to the United States Constitution, made obligatory upon the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel for his defense. Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998). 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. No sentence involving loss of liberty can be imposed where the right to counsel has been denied. Id.\nHere, at the hearing in chambers, appellant told the trial court that he wanted to fire Mr. Davis because of the \u201cdirty language\u201d he used in a motion for the judge\u2019s recusal. The court told appellant that appellant had \u201csome supervisory capacity\u201d over his attorney and the filing of the motion. Appellant replied, \u201cI don\u2019t know how to go about this, you know. I need \u2014\u25a0 I need someone to represent me in this.\u201d Appellant also told the court that he was in pain and that he had records of his visits to the emergency room and a doctor\u2019s office. The court stated:\nWell, this Court had a, had a pretrial hearing the last time this was set for trial and the record will reflect that. And you and I had some discussions. I was concerned at that point in time with Mr. Davis\u2019 representation of you from the standpoint that the matter was set for trial that day. I did not grant a continuance until that day. Mr. Davis didn\u2019t show up that day and subpoenas had not been issued.\nI was concerned because it didn\u2019t look like Mr. Davis had prepared at least to the extent of requesting subpoenas, and I think I advised you of that on the record. I also advised you if you wanted another attorney to act diligently in changing an attorney. I don\u2019t think that you\u2019ve done that.\n[YJou\u2019ve had adequate opportunity to get another attorney in this case if you had wanted one before waiting until the day when this, or the day before this case was set for trial, which is \u2014 The first time I heard anything about any continuance or changing or firing attorneys was yesterday. That was long after a jury had been called. And I consider this a motion to continue and in the exercise of my discretion, I\u2019m not going to grant the motion to continue.\nThe court then considered appellant\u2019s motion for recusal. During discussion of that motion, appellant referred to a paper he had brought that had been typed by Mr. Davis. The following colloquy occurred:\nThe Court: I\u2019m going to let you decide whether you want to offer these documents or not. It\u2019s up to you.\nThe Defendant: I wished I had an attorney here with me.\nThe Court: Well, I do, too, but apparendy you made the decision to fire him, so \u2014 do you want to offer these?\nThe Defendant: Well, I really had no choice.\nThe Court: Well, I don\u2019t know about that. So do you want to offer this or not?\nThe Court: Do you want to offer this?\nThe Defendant: I don\u2019t know \u2014 I really need a, an attorney, sir.\nThe Court: Okay.\nThe Defendant: Please.\nThe Court: So you don\u2019t have anything else \u2014\nThe Defendant: Pm begging you. Please \u2014\nThe Court: \u2014 you want to offer?\nThe Defendant: \u2014 let me get \u2014 I talked to Mr. McArthur.\nThe Court: You \u2014 I\u2019ve already said I hadn\u2019t, I\u2019ve refused to grant the continuance to allow you to get another attorney because your request was not made with due diligence.\nThe court took further evidence on the motion to recuse, denied the motion, and then stated the following:\nI want to address you on an issue. Mr. Davis is not here. This court has not relieved him.\nNow, I personally believe the circumstantial evidence in this case is that Mr. Davis is not here for a reason. It\u2019s to protect Mr. Irvin who\u2019s still his client so that Mr. Irvin can claim, if we go forward with the trial without Mr. Davis absence [sic], that Mr. Irvin did not have, for appellate purposes, the benefit of the counsel that he had. I think that\u2019s why Mr. Davis isn\u2019t here today.\nI think, as I said, circumstantial evidence shows that. Now, if I force Mr. Irvin to trial without Mr. Davis here today, then Mr. Irvin can argue that on appeal. The case might be reversed for that. I don\u2019t know. You never know what an appellate case is going to do. I\u2019m sufficiently convinced that Mr. Davis and Mr. Irvin have been attempting to delay this matter every time that it came up. Now, I have no way to verify their disagreement. All I can do is hear what Mr. Irvin says.\nThe judge further stated that he believed appellant, by his conduct at the last minute, had waived his constitutional right to counsel and could be required to go to trial pro se. Appellant replied, \u201cWell, me and Mr. Davis, we\u2019re not in this together to prelong [sic\\ this.\u201d\nThe right to counsel may be waived, but the waiver must be made knowingly, voluntarily, and intelligently. Smith v. State, 329 Ark. 238, 947 S.W.2d 373 (1997). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights, and the burden is upon the State to show that an accused voluntarily and intelligendy waived his fundamental right to the assistance of counsel. Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995). The Daniels court further explained:\n[W]e have stated that determining whether an intelligent waiver of the right to counsel has been made depends in each case upon the particular facts and circumstances, including the background, the experience and conduct of the accused. To establish a voluntary and intelligent waiver, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel. The judge must also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney. The last requirement is especially important since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and receives no special consideration on appeal.\n322 Ark. at 373, 908 S.W.2d at 640 (citations omitted). Furthermore, there are three requirements that must be met before a trial court can find that an accused has knowingly and intelligently waived counsel and allow the accused to proceed pro se in a criminal case. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986), overruled on other grounds, Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). The requirements are that (1) the request to defend oneself is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues. Id. at 244, 704 S.W.2d at 611.\nHere, as in Philyaw, appellant did not ask that he be allowed to represent himself, and the record reveals absolutely no waiver of that right, yet appellant was forced to represent himself. Therefore our inquiry becomes whether appellant\u2019s conduct prevented the fair and orderly exposition of the issues and amounted to a forfeiture of his right to counsel. See Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998).\nThe trial judge stated that he believed that circumstantial evidence showed that counsel\u2019s absence was deliberately planned to delay appellant\u2019s trial and for purposes of appeal if a trial proceeded without benefit of counsel. The State as appellee acknowledges that it finds no evidence in the record to support the trial court\u2019s suspicions that counsel\u2019s absence was deliberately planned to delay appellant\u2019s trial and for purposes of appeal. The State therefore concedes that it cannot in good faith argue that counsel and appellant concocted this scenario as a tactic for delay.\nThe record does show appellant\u2019s persistent pleas for an attorney after his retained counsel failed to appear, and it also shows the trial court\u2019s repeated refusal to postpone the trial until counsel could be obtained. It is within the trial court\u2019s discretion to grant a continuance so that a criminal defendant may obtain a new attorney, and this decision will not be reversed absent an abuse of discretion. Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997). In making this determination, the trial court may consider the following factors: (1) the reasons for the change, (2) whether other counsel has already been identified, (3) whether the defendant has acted diligently in seeking the change, and (4) whether the denial is likely to result in any prejudice to defendant. Id. at 559, 953 S.W.2d at 35 (citations omitted).\nIn Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998), our supreme court reversed and remanded a case for a new trial where the trial court required the defendant to go to trial without an attorney. One month before trial, the trial court had dismissed the public defender from representing the defendant upon its finding that he could afford to hire his own attorney, and the defendant had sought a continuance one week before trial, claiming that he needed more time to find an attorney. The supreme court, noting the absence of convincing evidence to support the conclusion that the defendant\u2019s motion for a continuance was an attempt to postpone his trial date, held that the trial judge had abused his discretion by requiring him to be tried without counsel.\nHere, Mr. Davis was appellant\u2019s counsel of record on the day of appellant\u2019s trial. As the trial court noted, the attorney was required to be present the day of trial. Although the trial court announced that it would impose sanctions against the attorney, he was never excused from representing appellant. The court specifically noted that it had not issued an order allowing appellant\u2019s attorney to withdraw, and the court stated that the attorney could not withdraw without such an order. Thus, appellant had an attorney of record but was forced to trial without the benefit of having him present. The record clearly shows that the trial court abused its discretion in denying appellant a continuance so that he could obtain counsel before proceeding to trial. Therefore, we reverse and remand for a new trial.\nFor his second point on appeal, appellant contends that his continued incarceration is premised upon a conviction resulting from clear error, constituting a denial of due process. He asks that he be released and the charge dismissed or, alternatively, that he be allowed a reasonable bail until a determination of his direct appeal is made. Such relief can be sought by appellant once the case is within the jurisdiction of the trial court on remand.\nReversed and remanded for new trial.\nGriffen and Crabtree, JJ., agree.", "type": "majority", "author": "John F. Stroud, Jr., Judge." } ], "attorneys": [ "J. Eric Hagler, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Frankie IRVIN v. STATE of Arkansas\nCA CR 97-1371\n972 S.W.2d 948\nCourt of Appeals of Arkansas Division II\nOpinion delivered May 27, 1998\nJ. Eric Hagler, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0143-01", "first_page_order": 167, "last_page_order": 174 }