Larry Nelson v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, JUDGE

DIVISION III

CACR00-85

SEPTEMBER 20, 2000

LARRY NELSON

AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR97-4249]

STATE OF ARKANSAS HONORABLE JOHN W.

LANGSTON, CIRCUIT JUDGE

APPELLEE

AFFIRMED

Appellant, Larry Nelson, was convicted of a fourth driving while intoxicated (DWI) offense, sentenced to thirty-months' imprisonment, fined $900, and had his driver's license suspended for four years. On appeal, he contends the trial court erred in allowing his three prior guilty pleas for DWI to be admitted into evidence.

To prove that the present conviction was appellant's fourth DWI conviction, the State introduced certified copies of three guilty-plea statements for DWI from the Jacksonville, Arkansas, Municipal Court. Each of the statements lists the following questions:

1) Do you understand the minimum and maximum possible sentences for the offense with which you are charged?

2) Do you understand that your plea of guilty does not waive your right to appeal to Circuit Court for trial?

3) Do you fully understand what you are charged with having done?

4) If the Court determines you cannot afford an attorney, one will be appointed for you at no cost to you. Have you chosen not to retain counsel for this matter and not requested counsel be appointed for you?

5) Are you certain that your plea of guilty has not been induced by any force, threat, or promise apart from a plea agreement?

6) Do you realize that the Judge is not required to carry out any understanding between you, your attorney, and the city attorney, and that the power of sentence is with the Court only?

Appellant checked "YES" next to each of these questions and initialed the check. Furthermore, the following sentence appears on the plea agreement and waiver of counsel, "I am aware of everything in this document. I fully understand what my rights are, and voluntarily plead guilty because I am guilty as charged." Appellant's signature appears at the bottom of the document. All of the certified plea statements are identical, except the third statement contains a statement signed by Deputy Prosecuting Attorney Mary Jones stating she read and explained the document to appellant.

Appellant contends that the three convictions should not be admitted because they were the result of a failure to knowingly and intelligently waive counsel.1 With respect to the third statement, appellant also argues it was improper for the deputy prosecutor to read and explain the document.

At trial appellant testified that he did not understand the three documents. He testified that he is illiterate and that the extent of his formal education is the seventh grade. Mr. Nelson and his wife testified that she fills out all of his job applications. With regard to the plea statements, appellant testified that when he signed the statements he did not know what they provided. He stated that the forms were not read to him and he signed where he was told to do so. Appellant further indicated that he did not understand that he was waiving counsel or pleading guilty. He believed that by signing the forms he was only agreeing to pay a fine. Judge Batton, the municipal judge sitting on each of three prior convictions, testified that on each occasion he told appellant that the document was a waiver of counsel and a plea statement form. Judge Batton further testified that he told appellant that he had marked the available penalty range and the number of prior convictions. Finally he testified that he told appellant to read the forms and to sign and initial them if he understood them.

Generally, to establish a voluntary and intelligent waiver of counsel, the trial judge must inform the accused that he is entitled to an attorney as a matter of law and question him to determine if he can afford to hire a lawyer. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999). The trial judge is also to explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney. Id. The minimum for determining whether a waiver was knowing and intelligent is a record which shows that the accused was made aware of the dangers and disadvantages of proceeding without counsel and that he understood the consequences of his choice. King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991).

In King, our supreme court held these standards apply to matters on direct appeal or post-conviction proceedings, but not to collateral proceedings. In King, like the present case, a defendant convicted of DWI attempted to prevent the use of a prior DWI conviction to enhance his sentence. The King defendant alleged the certified copy of the docket sheet that included the following: "On 11/11/81, after waiving his right to consult with an attorney, Mr. King plead guilty to DWI first offense[,]" did not show a knowing and intelligent waiver of counsel. The supreme court recognized that most DWI misdemeanor cases are disposed of in municipal courts where the extent of the record is the docket sheet. Such a record will seldom be sufficient to establish a voluntary, knowing, and intelligent waiver such as required on direct appeal and in post-conviction proceedings. Noting that there must be finality to all litigation, including criminal, the court concluded that where the record is sufficient to create a presumption that "the guiding hand of counsel was available," a collateral attack could not be had.

Here, as in King, the plea statements, signed and initialed by appellant, create the presumption that counsel was available and refused. Combined with Judge Batton's testimony we cannot conclude that appellant did not knowingly and intelligently waive counsel.

Affirmed.

Pittman and Stroud, JJ., agree.

1 Appellant also argues that the prior pleas should not be used because he was not advised of the possibility of their use in enhancing future penalties. This court has previously ruled that a trial court is not required to provide such explanations. Dickerson v. State, 24 Ark. App. 36, 747 S.W.2d 122 (1988).