Patrick Duane Smith v. State of Arkansas

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ar03-745

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

PATRICK DUANE SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-745

March 31, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR-2002-2174]

HON. JOHN LANGSTON,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Pulaski County jury found Patrick Duane Smith guilty of commercial burglary and misdemeanor theft. He was sentenced as a habitual offender to serve fifteen years' imprisonment. His sole point on appeal is that the trial court erred in denying his pro se motions to change public defenders prior to trial. We affirm.

At an omnibus hearing on August 16, 2002, appellant moved to have his public defender dismissed. In support of his motion, appellant presented to the trial judge a journal in which he had kept track of various letters he had mailed to counsel and telephone calls he had made to the public defender's office. He submitted that the journal showed that he had repeatedly requested discovery information that counsel failed to provide. Appellant also complained that he had not even seen his counsel until the day of the hearing. The trial judge denied appellant's motion.

Following the omnibus hearing, appellant filed two identical motions on October 18, 2002, and on November 14, 2002, again requesting that his counsel be relieved. In those motions, appellant stated that he was "not pleased" with his representation by the public defender; that his counsel had not been effective toward his case; and that counsel was biased, prejudiced, and had formed a preconceived opinion of his guilt. The docket reflects that on December 3, 2002, the trial court denied appellant's motions. After granting appellant's motion for a continuance, the trial was held on March 26, 2003.

On appeal, appellant does not challenge on appeal the sufficiency of the evidence supporting his conviction, therefore, only a brief recitation of the facts is necessary. On May 14, 2002, in the early morning hours, an alarm went off at the Downtown Deli in Little Rock. The front glass door had been shattered. A tray of cookies on the counter had been disturbed, and bottles of orange juice were missing from the cooler. Just prior to a radio call about the alarm, a patrol officer had seen appellant just a couple of blocks from the deli and had noted that appellant appeared to have been stuffing something into his mouth. When appellant was apprehended, he had a bottle of orange juice in his hand and another cold one in a pant's pocket. A drop of blood that had been collected from the frame of the shattered door was analyzed, and forensic experts testified that the blood matched a sample that had been taken from appellant. The jury convicted appellant of commercial burglary and misdemeanor theft of property.

On appeal, appellant argues that he was "penalized" for being indigent in that he did not have the luxury of being able to simply fire the public defender appointed to represent him. In addition, he contends that granting his motions would not have been problematic because the motions were made well in advance of his trial, i.e., he was not attempting to delay his trial.

A defendant's right to counsel of choice is grounded in the Sixth Amendment to the United States Constitution, and is also guaranteed by Art. 2, ยง 10, of the Arkansas Constitution. While constitutionally guaranteed, the right to counsel of one's choosing is not absolute, and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). Moreover, once competent counsel is obtained, any request for a change in counsel must be considered in the context of the public's interest in the prompt dispensation of justice. Id. Once an appellant has accepted representation by an attorney, the fact that he is dissatisfied with counsel's efforts does not entitle him to appointment of a different attorney. Id.

While we agree that appellant's motions were timely, appellant was not entitled to have another public defender appointed to represent him. We point out that appellant did not seek to hire his own counsel or to represent himself. Specifically, he wanted another public defender appointed to represent him. Aside from bald assertions, appellant's motions reflect nothing more than his general dissatisfaction. We note that appellant does not contend on appeal that his counsel did an inadequate job representing him. Defense counsel discussed Rule 404(b) issues with appellant, sent an investigator to discuss the evidence with him, and made several motions on his behalf. We cannot discern any incompetence or bias on the part of the public defender that would have warranted the appointment of a different public defender to represent appellant. Accordingly, the trial court did not abuse its discretion in denying appellant's motions.

Affirmed.

Hart and Griffen, JJ., agree.