Dow Vandle Williams v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION II

DOW VANDLE WILLIAMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-289

FEBRUARY 14, 2001

APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT

[NO. CR-99-261]

HONORABLE HARVEY YATES,

CIRCUIT JUDGE

REVERSED AND REMANDED

The appellant, Dow Vandle Williams, was convicted of battery in the first degree and engaging in violent and criminal group activity in St. Frances County. At the conclusion of a bench trial, appellant was sentenced to ten years' imprisonment in the Arkansas Department of Correction. Appellant raises two points on appeal. First, appellant argues that the trial court violated his constitutional right to counsel when appellant proceeded pro se. Second, appellant argues there was insufficient evidence to support his conviction. Appellant's second point, which is considered first on appeal, was not preserved for appellate review; however; we agree that appellant's right to counsel was violated. We reverse and remand for a new trial.

On the date of appellant's bench trial, he appeared before the trial judge without

counsel. Just before the proceedings began, the appellant agreed with the trial judge that he would proceed pro se. Nothing in the record indicates that the trial court made further inquiry as to appellant's ability to retain counsel, advised the appellant of his right to appointed counsel, or warned him of the possible consequences of proceeding without counsel. At trial, the appellant failed to move for a directed verdict.

When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). However, here the appellant failed to move for a directed verdict and his challenge to the sufficiency of the evidence is procedurally barred. On April 9, 1999, the supreme court amended Rule 33.1 of the Arkansas Rules of Criminal Procedure to require a specific directed-verdict motion in bench trials as well as jury trials. Sweeney v. State, 69 Ark. App. 7, 9 S.W.2d 529 (2000). The appellant's bench trial commenced on November 16, 1999, subsequent to the amendment of the rule.

The amended rule requires that the defendant challenge the sufficiency of the evidence in accordance with the rule. Ark. R. Crim. P. 33.1(c) (2000). The failure of the appellant to move for a directed verdict results in a "waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment." Id. Appellant failed to make a motion for directed verdict at the close of the State's evidence and at the close of all the evidence.

Appellant also argues that his right to counsel was violated. An accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligentwaiver of his constitutional right to the assistance of counsel in his defense. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999). A defendant may proceed pro se in a criminal case when: (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. Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999). To establish a voluntary and intelligent waiver, 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 an attorney. Id. The trial judge must also explain the advantages of having the assistance of an attorney during the trial as well as the disadvantages of not having an attorney. Id. Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. E.g., Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Id.

The trial court judge did not advise the appellant of his right to court-appointed counsel, or inquire into the appellant's ability to have retained counsel. The appellant was not warned of the possible consequences of proceeding without counsel. We conclude that the trial court violated the appellant's constitutional right to counsel.

Reversed and remanded for a new trial.

Pittman and Roaf, JJ., agree.