Ricky Lee Franklin v. State of Arkansas

Ricky Lee FRANKLIN v. STATE of Arkansas

CR 96-996                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 10, 1997


1.   Appeal & error -- no right to counsel in postconviction proceedings --
     trial court's appointment of counsel for hearing was exercise of discretion
     under A.R.Cr.P. Rule 37.3(b). -- There is no right to counsel in a
     postconviction proceeding; as a result, when the trial court
     appointed counsel to represent appellant at a hearing on his
     A.R.Cr.P. Rule 37 petition, it was merely exercising its
     discretion pursuant to Rule 37.3(b).

2.   Appeal & error -- motion to file pro se appellant's brief or for
     appointment of new counsel denied. -- Where appellant accepted
     representation by an attorney, the fact that he was
     dissatisfied with counsel's efforts did not entitle him to
     appointment of a different attorney; even on direct appeal of
     a judgment, an appellant does not enjoy the absolute right to
     counsel of his choosing; the supreme court will not tolerate
     a situation in which an appellant competes with his attorney
     to be heard in an appeal; because appellant chose to accept
     the appointment of counsel, the supreme court would neither
     dismiss counsel nor permit appellant to file a supplemental
     brief.

     Pro Se Motion to File Pro Se Appellant's Brief and for a Copy
of Postconviction Hearing Record or for Appointment of New Counsel;
denied. 
     Appellant, pro se.
     No response.

     Per Curiam. 
     In 1992, Ricky Lee Franklin was found guilty by a jury of two
counts of burglary and sentenced to an aggregate sentence of forty
years' imprisonment.  We affirmed.  Franklin v. State, 318 Ark. 99,
884 S.W.2d 246 (1994).  He subsequently filed a pro se petition
pursuant to Criminal Procedure Rule 37 in the trial court seeking
to vacate the judgment.  A hearing was held on the petition at
which petitioner Franklin was represented by appointed counsel,
Edgar R. Thompson.  The petition was denied, and the record has
been lodged in this court on appeal.  Mr. Thompson has filed the
appellant's brief.  Appellant does not approve of the brief filed
by counsel and asks by motion that a new attorney be appointed or,
in the alternative, that the record of the Rule 37 hearing be
forwarded to him so that he may prepare a pro se brief.
     There is no right to counsel in a postconviction proceeding. 
Pennsylvania v. Finley, 481 U.S. 551 (1987).  As a result, when the
trial court appointed Mr. Thompson to represent appellant at the
hearing on the Rule 37 petition, it was merely exercising its
discretion pursuant to Rule 37.3(b).  Petitioner filed a motion
asking that Mr. Thompson be relieved as counsel, which was denied,
but he did not decline to be represented by an attorney.  He does
not contend, and the record does not disclose, that he ever asked
the circuit court to permit him to proceed pro se as he could have
done.  
     Appellant accepted representation by an attorney, and the fact
that he is dissatisfied with counsel's efforts does not entitle him
to appointment of a different attorney.  Even on direct appeal of
a judgment, an appellant does not enjoy the absolute right to
counsel of his choosing.  Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991).  We will not tolerate a situation wherein an
appellant competes with his attorney to be heard in an appeal.  As
appellant chose to accept the appointment of counsel, this court
will not dismiss counsel now or permit the appellant to file a
supplemental brief.
     Motion denied.