Jimmy Europe, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

JIMMY EUROPE, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-683

February 20, 2002

APPEAL FROM THE HOWARD COUNTY CIRCUIT COURT

[NOS. CR-2000-32, CR-99-29]

HON. TED C. CAPEHEART,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case pled guilty to first-degree criminal mischief in June 1999 and was placed on probation for a period of three years. In September 2000, the State filed a petition to revoke appellant's probation, alleging that he violated the terms thereof by failing to report to his probation officer, failing to notify his probation officer of a change in his employment status, failing to maintain employment, and failing to pay court costs and probation fees. After a hearing, the trial judge found that appellant violated the conditions of his probation by failing to report to his probation officer, revoked appellant's probation, and sentenced him to six years' imprisonment. In a separate case that has been consolidated with the probation revocation on appeal, appellant was charged with committing the offense of delivery of marijuana in March 1999. After a jury trial in which appellant representedhimself, he was convicted of that offense and sentenced to five and one-half years' imprisonment.

For reversal of his probation revocation, appellant contends that the prosecutor was guilty of misconduct because he assertedly attempted to prejudice appellant by asking a question implying that appellant had committed other crimes not alleged as grounds for revocation in the State's petition to revoke. For reversal of his conviction of delivery of marijuana, appellant contends that the trial court erred in finding that he made a voluntary, knowing, and intelligent waiver of his right to assistance of counsel at trial. We affirm.

We are unable to address appellant's contention that the prosecutor in his revocation case was guilty of misconduct. There is no indication in the record that the prosecutorial-misconduct argument was made to the trial court, and the argument therefore has not been preserved for appeal. Farmer v. State, 54 Ark. App. 66, 923 S.W.2d 876 (1996). We do not consider arguments raised for the first time on appeal. Id.

With respect to appellant's contention that the trial court erred in finding that he made a voluntary, knowing, and intelligent waiver of his right to assistance of counsel at his jury trial for delivery of marijuana, we find no error. To effectively waive the right to counsel, the accused must be made aware of the dangers and disadvantages of self-representation; the trial judge must explain the desirability of having the assistance of counsel during trial and the drawbacks of not having an attorney. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999). A specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant possessed such knowledge from other sources, is requiredto establish a waiver. Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001). Determining whether an intelligent waiver of the right to counsel has been made depends on the particular facts and circumstances of each case, including the background, experience, and conduct of the accused. Bledsoe v. State, supra.

In the present case, the record shows that the appellant informed the judge that he was thirty years old, with twelve years of school and some college. Appellant had some experience with the legal system and had witnessed trials before. In addition to inquiring about appellant's background and experience, the trial court informed appellant that he was entitled to appointed counsel and recommended emphatically that he avail himself of it. He further informed appellant that he would be held to the same standard as an attorney, and that he would be expected to know the law and required to follow the procedural rules. The judge also informed appellant that he would be required to examine witnesses and choose jurors, and explained by reference to analogy that conducting a successful jury trial required skills not possessed by laymen, that it would be like performing a surgical operation on himself instead of employing a surgeon, that he would be a fool to attempt it, that he would make a mess of it, and that it would be a grave mistake.

Unlike the brief interview with the defendant in Bledsoe, the trial judge in the present case inquired into appellant's background and experience and talked at length with the appellant concerning the dangers and disadvantages of self-representation. Although the trial judge did not detail the precise consequences of failure to follow rules and procedure, he clearly conveyed, in terms that would be unmistakable to a person of appellant'sbackground and experience, that the consequences would be catastrophic. On this record, we cannot say that the trial court erred in finding that appellant made a voluntary, knowing, and intelligent waiver of his right to assistance of counsel.

Affirmed.

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