Hall v. State

Cite as 2016 Ark. App. 351

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-15-540

OPINION DELIVERED AUGUST 24, 2016

JAMES HALL APPEAL FROM THE DREW
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-13-127-1]
V.
HONORABLE SAM POPE,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED

ROBERT J. GLADWIN, Chief Judge

James Hall appealed his Drew County District Court conviction to the circuit court,

and on April 23, 2015, he was found guilty by a jury of one count of harassment and two

counts of harassing communications. Hall was sentenced to serve ninety days’ imprisonment

in the Drew County jail and 275 days’ suspended upon his compliance with certain

conditions when released. His sole argument on appeal is that the circuit court violated his

Sixth Amendment right to counsel of his choice. We affirm.

Hall was charged on April 11, 2013, and the district court appointed a public

defender, Omar Greene, to represent him. Hall was found guilty on August 29, 2013, in

the Drew County District Court on two counts of harassing communications and one count

of harassment. He filed an appeal to the circuit court on September 27, 2013, but the appeal

was dismissed by order filed August 15, 2014, due to Hall’s failure to appear.
Cite as 2016 Ark. App. 351

Hall filed a pro se motion for reconsideration on August 21, 2014, and alleged that

his counsel, Greene, had failed to communicate with him, that Greene had failed to return

his telephone calls, and that Greene had failed to communicate any court dates with him.

He further alleged that he was still indigent and in need of a court-appointed attorney; that

Greene was still “suitable”; and that the public defender’s office was “conflicted” from

representing him.

Greene filed a supplemental motion for reconsideration of dismissal of appeal, arguing

that Ayala v. State, 365 Ark. 192, 226 S.W.3d 766 (2006), holds that failure to appear at a

pretrial hearing is not proper grounds for dismissal of an appeal from city court to circuit

court. The circuit court filed an order setting aside the dismissal on November 12, 2014,

and a pretrial hearing was set for January 20, 2015, with a jury-trial date of February 3–6,

2015.

On February 10, 2015, Hall left a telephone message on the circuit court’s answering

machine. The circuit court judge wrote Hall a letter stating that the court had received

Hall’s message that he had fired his court-appointed counsel, that he wanted an alternate

counsel appointed, and that he would be handling the matter pro se. The letter informed

Hall that he could not fire the court-appointed counsel and that he could not represent

himself while he was represented by court-appointed counsel. The letter stated that Hall’s

concerns would be addressed at the next court appearance.

Hall filed a pro se motion for immediate replacement of his court-appointed attorney

on February 11, 2015, and he complained that his attorney failed to attend the January 20,

2
Cite as 2016 Ark. App. 351

2015 pretrial hearing. He claimed that he could not reach his attorney, that his attorney

was “incompetent or uncaring,” and that he wanted a new lawyer.

At the hearing on March 13, 2015, Hall complained that Greene had been late or

missed several pretrial hearings, and the trial court reminded Hall that Greene had reinstated

Hall’s appeal in the circuit court. Hall agreed but stated that Greene had reported to the

circuit court that he was too tired to drive to the last preliminary hearing and that Greene

had reported to Hall that he had been in the emergency room all night with his wife, which

Hall claimed that he understood. Nevertheless, Hall continued that Greene “has not had

any witness lists from me. We have not prepared for trial.” Hall also complained that

Greene should have argued at the district-court level that a conflict of interest existed among

Hall, the district judge, and the Tenth Judicial Public Defender’s Office because of a blog

that Hall had been writing. The circuit court explained that Hall could not create his own

conflict and then complain about it. Hall continued his argument, complaining that he

could not contact Greene. The circuit court stated that Hall had placed a notice of change

of address in a civil-case file, while the circuit court was working from the criminal file, and

thus, Hall’s attempts at notification of his new contact information were not adequate.

Greene stated,

Well, Judge, I’ve had trouble communicating with him too. You know, it’s
a two-way street on that. And then I don’t recall him letting me know where he
moved. Maybe he did. And he will call me, like, at a time when I’m in a trial or
something. And then my secretary will take a message from him. But a lot of time[s]
the messages are just, they’re, just to be honest, they’re just bizarre, I mean,
something about somebody threatened him. You know, I wasn’t appointed to be
his body guard, Your Honor. I mean, what am I supposed to do? Drive down to
Drew County and protect him or something. And then on the, where the Court
dismissed his appeal, I found a case that said, that his appeal couldn’t be dismissed
unless he didn’t show up for trial. Just not showing up for a pre-trial hearing wasn’t

3
Cite as 2016 Ark. App. 351

sufficient. And then he had filed a bunch of pre-trial—he had filed a bunch of pro
se motions which didn’t cite anything that helped him. It just ranted on about a
bunch of stuff.

When the circuit court asked Greene whether he had represented Hall in the district

court, Greene responded affirmatively, and stated, “And we won on, I don’t know how

many counts, you know.” Greene continued,

And, then, so we filed notice and the rest the Court knows about. You know, I’ve
tried to represent Mr. Hall to the best of my ability. I did do some effective research
on the issue of his appeal being dismissed. You know, he is one of the more difficult
individuals I’ve ever represented, including people that are facing the death penalty.
You know, so, if he wants me to not represent him anymore . . . .

The circuit court then denied Hall’s motion. Hall was convicted after a jury trial

held April 22, 2015, on one count of harassment and two counts of harassing

communications and sentenced to 365 days’ imprisonment in the county jail, with all but

ninety days suspended. Hall appealed, arguing that his Sixth Amendment right to counsel

of his choice was violated by the circuit court’s ruling.

This court has previously stated,

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).

Simpson v. State, 2015 Ark. App. 103, at 4, 455 S.W.3d 856, 858.

4
Cite as 2016 Ark. App. 351

The Arkansas Supreme Court has stated,

The Supreme Court has held that “the right to counsel of choice does not
extend to defendants who require counsel to be appointed for them” and that “a
defendant [may not] insist on representation by a person who is not a member of the
bar, or demand that a court honor his waiver of conflict-free representation.”
Gonzalez-Lopez, 548 U.S. at 151 (citing Wheat v. United States, 486 U.S. 153, 159–
60; Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624.

Arroyo v. State, 2013 Ark. 244, at 5 n.2, 428 S.W.3d 464, 469 n.2.

In Hall’s argument, he recites his pro se motion for reconsideration filed with the

circuit court after his appeal from district court was dismissed due to his failure to appear.

He acknowledges that Greene filed a supplemental motion and that the circuit court

reinstated his appeal but complains that his attorney was late for the hearing. Hall also refers

to his pro se motion for immediate replacement of his attorney that was filed on February

11, 2015, in which he stated that Greene had failed to communicate with him. He contends

that the record is clear that he had lost confidence in his attorney and that “the attorney-

client relationship was in peril.” Finally, Hall recites the colloquy from the hearing on his

motion, as set forth above. Hall claims that his situation cannot be characterized as a last-

minute attempt to delay the trial, as the attorney-client relationship had been deteriorating

for months. Further, when balancing his request for a change in counsel against the public’s

interest in the prompt dispensation of justice, Hall maintains that the charges against him

were all misdemeanors, and a new attorney could have been appointed and prepared by the

trial date.

Hall cites Clements v. State, 306 Ark. 596, 608, 817 S.W.2d 194, 200 (1991), where

the Arkansas Supreme Court reversed the trial court’s removal of the defendant’s appointed

counsel, holding that when a trial court terminates the representation of an attorney, either

5
Cite as 2016 Ark. App. 351

private or appointed, over the defendant’s objection and under circumstances which do not

justify the lawyer’s removal and which are not necessary for the efficient administration of

justice, a violation of the accused’s right to particular counsel occurs. Hall contends that

Clements stands for the importance of the attorney-client relationship, even when the client

is indigent. He acknowledges that, instead of his attorney being removed over his objection

as was done in Clements, the circuit court refused to replace his court-appointed attorney.

Nevertheless, Hall claims that the fact that he is indigent and that counsel was appointed for

him should not determine whether new counsel may be appointed at his request because

he and his counsel could not work effectively together.

The State contends that Hall’s argument is unavailing and that his conviction and

sentence should be affirmed in all respects. We agree. The State maintains that once an

appellant has accepted representation by an attorney, the fact that he is dissatisfied with

counsel’s efforts does not entitle him to appointment of a different attorney. Bullock, supra.

Further, the State asserts that appointment of new counsel would cause a delay in justice.

We hold that the circuit court did not abuse its discretion in denying Hall’s motion

for new counsel. Because Greene had represented Hall at the district court as well as the

circuit court, he was intimately familiar with Hall’s case. Greene had successfully reinstated

Hall’s case in the circuit court, and he had been Hall’s counsel for nearly two years when

Hall requested his removal. The circuit court considered these facts, questioned Hall and

Greene regarding the circumstances of Hall’s complaints, and determined that Hall was not

entitled to new counsel. Further, Hall failed to show that he suffered prejudice as a result

6
Cite as 2016 Ark. App. 351

of the circuit court’s denial of his motion. Simpson, supra. Accordingly, we hold that no

abuse of discretion occurred.

Affirmed.

HOOFMAN and BROWN, JJ., agree.

Robert M. “Robby” Golden, for appellant.

Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., Evelyn D. Gomez,

and Brooke Jackson, Ass’t Att’y Gen., for appellee.

7