Henry Joseph Wilson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION I

HENRY JOSEPH WILSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-442

February 6, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NOS. CR98-2068, CR 98-2542]

HONORABLE MORRIS W. THOMPSON, CIRCUIT JUDGE

AFFIRMED

Appellant, Henry Joseph Wilson, appeals his convictions on two counts of rape and his probation revocation. For reversal, appellant argues that the trial court abused its discretion by allowing the trial to proceed in his absence. We disagree and affirm.

The State charged appellant, by information, with two counts of rape, alleging that he had engaged in sexual intercourse or deviate sexual activity with two girls under fourteen years of age. On March 30, 1999, appellant appeared for trial. After the jury was impaneled and the trial reconvened following its noon recess, appellant, who was on bail, failed to return to court. When court resumed, counsel for appellant objected to the trial proceeding in appellant's absence. The court concluded that appellant had "willfully and intentionally waived his right to be present," and therefore, the trial would "proceed in his absence."

The jury convicted appellant of two counts of rape, and he was sentenced to an aggregate term of forty years in the Arkansas Department of Correction. The court also

revoked appellant's probation, which he had received following his guilty plea on July 8, 1996, to second-degree sexual abuse, and sentenced him to an additional ten years to be served concurrently with his forty-year sentence.

For his sole issue on appeal, appellant argues that the court's denial of his attorney's request for a continuance, after appellant voluntarily absented himself from trial, was an abuse of discretion. Under our criminal justice system, whenever any substantial step is being taken in his case, a criminal defendant has the privilege of being present in person and represented by counsel. Reece v. State, 325 Ark. 465, 467, 928 S.W.2d 334, 335 (1996). Likewise, Arkansas Code Annotated section 16-89-103(a)(1)(Supp. 2001) states, "If the indictment is for a felony, the defendant must be present during the trial." However, the statute further provides as follows:

If he escapes from custody after the trial has commenced or is present at the beginning of the trial and then causes himself to be unable to appear at trial or, if on bail, shall absent himself during the trial, the trial may either be stopped or progress to a verdict, at the discretion of the court.

Ark. Code Ann. § 16-89-103(a)(2)(A)(i)(Supp. 2001).

In Reece, the defendant failed to appear on the second day of trial, and the Arkansas Supreme Court held that the trial court did not abuse its discretion in proceeding to trial after the defendant voluntarily absented himself from the proceeding. Further, we have similarly held that a court may proceed with a probation revocation after a defendant absents himself from the proceedings. Parrish v. State, 64 Ark. App. 66, 984 S.W.2d 460 (1999). Given the holdings of Reece and Parrish, we cannot say the trial court abused its discretion in allowing appellant's trial and the probation revocation hearing to proceed after appellant voluntarily absented himself from trial by failing to return after the noon break.

Affirmed.

Stroud, C.J., and Vaught, J., agree.