Jamal Akram v. State of Arkansas

Cite as 2019 Ark. App. 447
Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS
Perry
Date: 2022.08.03 14:02:17 DIVISION II
-05'00' No. CR-19-191
Adobe Acrobat version:
2022.001.20169 Opinion Delivered: October 16, 2019
JAMAL AKRAM
APPELLANT APPEAL FROM THE MISSISSIPPI
COUNTY CIRCUIT COURT,
CHICKASAWBA DISTRICT
V. [NO. 47BCR-16-94]

HONORABLE RALPH WILSON, JR.,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED

RAYMOND R. ABRAMSON, Judge

Appellant Jamal Akram was convicted by a Mississippi County jury of first-degree

murder and was sentenced as a habitual offender to sixty years’ imprisonment. This court

upheld his conviction in Akram v. State, 2018 Ark. App. 504, 560 S.W.3d 509. Akram filed

a Rule 37 petition challenging issues concerning his waiver of counsel at trial as well as a

claim of ineffective assistance of appellate counsel. On January 14, 2019, the circuit court

denied his petition. Akram now appeals the circuit court’s denial of his petition. On appeal,

he argues that his waiver of trial counsel was invalid because his request to represent himself

was equivocal and untimely, and he had ineffective assistance of appellate counsel on direct

appeal. Neither point has merit, and we affirm.

Akram’s conviction stems from the beating death of his live-in girlfriend, whose body

was found in their home on March 18, 2016. Prior to the start of the second day of trial,
Akram asked to represent himself. After the circuit court delivered a lengthy lecture about

the dangers of self-representation and a thorough inquiry into Akram’s desire to represent

himself, Akram signed a waiver of counsel and was allowed to represent himself.

When reviewing a circuit court’s ruling on a Rule 37 petition, we will not reverse

the circuit court’s decision granting or denying postconviction relief unless it is clearly

erroneous. E.g., Nichols v. State, 2017 Ark. 129, at 2, 517 S.W.3d 404, 407. A decision is

clearly erroneous if, even with evidence to support the decision, this court “is left with the

definite and firm conviction that a mistake has been committed.” Id.

A defendant has a constitutional right to self-representation. Faretta v. California, 422

U.S. 806 (1975). This necessarily requires the waiver of the right to be represented by

counsel, which is a personal right that may be waived at the pretrial stage or at trial. E.g.,

Jarrett v. State, 371 Ark. 100, 104, 263 S.W.3d 538, 542 (2007). A criminal defendant may

invoke his right to defend himself pro se if “(1) the request to waive the right to counsel 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 that would prevent the

fair and orderly exposition of the issues.” Id., 263 S.W.3d at 541. Every reasonable

presumption must be indulged against the waiver of fundamental constitutional rights, and

it is the State’s burden to show that a defendant voluntarily and intelligently waived his

fundamental right to the assistance of counsel. Walton v. State, 2012 Ark. 336, at 8, 423

S.W.3d 56, 61.

We first note that Akram has no cause of action in a Rule 37 proceeding to pursue

a Faretta claim because his argument here could have been raised on direct appeal. See Oliver

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v. State, 323 Ark. 743, 918 S.W.3d 690 (1996). Akram alleges that his waiver of the right

to be represented by counsel was not valid because it was not timely and was equivocal.

However, his arguments that the circuit court erred in allowing him to proceed pro se were

not raised to the trial court or on direct appeal. Akram’s claim that his waiver to proceed

pro se was invalid is not cognizable in Rule 37 proceedings because Rule 37 is not available

to raise questions of trial error, even questions of constitutional dimension. Lee v. State, 2017

Ark. 337, 532 S.W.3d 43. For our court to address such a question raised by the appellant

for the first time in Rule 37 proceedings, the appellant must show a fundamental error

sufficient to void the judgment. Id. Such is not the case here; accordingly, we could

summarily affirm.

However, were we to address the merits of Akram’s claim, we would affirm the

circuit court. Akram stated at the beginning of the second day of trial that he no longer

wanted his appointed attorney to represent him and that he wanted the trial ended and

another attorney appointed. He made it clear that if the circuit court would not appoint

another attorney, he wanted to represent himself. Akram went on to emphasize that the

trial concerned his freedom, and if he were to have to serve time, he would want to do so

“behind [his] mouth[.]” The circuit court spent a considerable amount of time explaining

to Akram the dangers and pitfalls of representing himself. Following a lengthy colloquy, the

circuit court once again asked Akram if he wanted to represent himself. Akram then asked

that he be allowed to listen with defense counsel to an audio recording of the 9-1-1 call.

The court granted his request, and recessed.

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After returning from recess, Akram indicated that he still wanted to represent himself,

and the circuit court again explained the dangers and disadvantages of self-representation

and urged him to “consider permitting counsel to represent you.” Akram reiterated his

desire to represent himself and then executed a waiver of counsel.

In his Rule 37 petition, Akram alleged that his waiver of counsel was equivocal. We

disagree. There was nothing ambiguous about Akram’s waiver of trial counsel and his clearly

stated desire to represent himself. Akram was asked multiple times about waiving counsel

and representing himself, and each time he unequivocally stated that this was his desire.

Akram signed a waiver of counsel despite the repeated warnings of the lower court.

Akram also argues that his waiver of counsel was invalid because it was untimely.

The waiver of counsel made by a defendant must be timely. E.g., Jarrett, 371 Ark. at 104,

263 S.W.3d at 541. However, the issue of timeliness is not clearly defined. In Faretta, 422

U.S. at 835, the defendant made his request weeks before trial. The Supreme Court of the

United States noted in a different case that most courts have a requirement that a Faretta

request be made in a timely fashion. Martinez v. Ct. App. Cal., Fourth Appellate Dist., 528

U.S. 152, 162 (2000).

A request to represent oneself is often closely tied to complaints about appointed

defense counsel, and the right to counsel cannot be used to “frustrate the inherent power

of the court to command an orderly, efficient, and effective administration of justice.” Jarrett,

371 Ark. at 104–05, 263 S.W.3d at 542. Thus, the logical reading of the timeliness

requirement is that it refers to the ability of the circuit court to efficiently and effectively

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control the docket and administer justice, and a request to waive defense counsel can be

denied as untimely if the circuit court finds it would interfere with these aims. Id.

A timely request to waive trial counsel can be reversible error if not granted. See

Pierce v. State, 362 Ark. 491, 504, 209 S.W.3d 364, 371 (2005). However, we also

acknowledge that there is no bright-line rule about the timeliness of a Faretta request. Our

standard of review is whether the circuit court’s finding that the waiver of rights was

knowingly and intelligently made was clearly against the preponderance of the evidence.

Bogard v. State, 311 Ark. 412, 414, 844 S.W.2d 347, 349 (1993).

The State contends that the timeliness requirement should be read as a tool for circuit

courts to manage their dockets and administer justice and not as a gateway to reverse an

otherwise valid waiver. We agree. Akram’s argument that it was reversible error for the

circuit court to grant his otherwise valid request to represent himself on the second day of

the trial is unsupported by case law.

Akram’s second argument is that his appellate counsel was ineffective for not

challenging the validity of his waiver to proceed pro se at trial. While he raised this claim in

his Rule 37 petition, he failed to get a ruling from the circuit court. The circuit court’s

order denying his petition did not address this claim. We therefore cannot reach the merits

of his second point on appeal because it is not preserved for our review. See Crippen v. State,

2019 Ark. App. 291, 577 S.W.3d 390.

In the postconviction context, when the circuit court provides written findings on

at least one, but fewer than all, of the petitioner’s claims, our supreme court has held that

an appellant has an obligation to obtain a ruling on any omitted issues if they are to be

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considered on appeal. Cowan v. State, 2011 Ark. 537, at 3. If the order does not contain a

ruling on an issue or issues, it is incumbent on the appellant to file a motion asking the court

to address the omitted issues. Id. The requirement that an appellant obtain a ruling on all

issues he or she wishes to raise on appeal is procedural, and all appellants, including those

proceeding without counsel, are responsible for following procedural rules in perfecting an

appeal. Id. Matters left unresolved are waived and may not be raised on appeal. Id. Because

Akram failed to get a ruling from the circuit court on his second point on appeal, it is not

preserved.

Having considered the arguments raised by Akram in this appeal, the record, and the

circuit court’s order, we find no error and affirm.

Affirmed.

GLADWIN and WHITEAKER, JJ., agree.

Jamal Akram, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Chris R. Warthen, Ass’t Att’y Gen., for appellee.

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