Sanders v. State
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Cite as 2009 Ark. App. 833
ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR08-704
Opinion Delivered
DANIEL SANDERS
APPELLANT
V.
STATE OF ARKANSAS
APPELLEE
December 9, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
FOURTH DIVISION [CR 2006-2975]
HONORABLE JOHN W.
LANGSTON, JUDGE
AFFIRMED
DAVID M. GLOVER, Judge
Appellant, Daniel Sanders, was tried by a jury and found guilty of the offenses of
robbery and second-degree battery (felonies) and theft of property and possession of a
controlled substance (misdemeanors). He was sentenced as an habitual offender to 540
months in the Arkansas Department of Correction. Appellant filed a pro se motion for new
trial, which was denied by the trial court. Appellant did not request a hearing on that motion,
and the trial court did not order one. Through attorney error, no notice of appeal was filed
in this case — even though appellant expressed his desire for an appeal to his counsel. Our
supreme court granted appellant’s pro se motion for belated appeal and directed the clerk “to
lodge the record so that the appeal from the judgment and commitment order may proceed.”
Sanders v. State, CR08-704 (Oct. 9, 2008) (per curiam). His trial counsel was eventually
Cite as 2009 Ark. App. 833
allowed to withdraw, and substitute counsel was appointed. Sanders v. State, CR08-704
(Nov. 20, 2008) (per curiam). As the sole point of this appeal, counsel contends that the trial
court “erred in denying appellant’s motion for new trial without granting him a hearing, as
required by statute, on his claim of ineffective assistance of counsel, thus denying appellant’s
right to direct appeal.” Finding no error, we affirm.
Rule 33.3 of the Arkansas Rules of Criminal Procedure provides in pertinent part:
“The trial court shall designate a date certain, if a hearing is requested or found to be necessary, to
take evidence, hear, and determine all of the matters presented.” (Emphasis added.) It is
undisputed that appellant did not request a hearing on his motion for new trial. Thus, the
only portion of the rule that is applicable to the facts presented here is the clause, “if a hearing
is ... found to be necessary.” The trial court obviously did not believe that a hearing was
necessary because he decided the motion in a lengthy order without requiring a hearing.
The question for this court is whether the trial court erred in denying the motion without a
hearing.
In the first paragraph of his “Grounds for motion for new trial,” appellant asserted:
“Ineffective assistance of Counsel: By said public defender & paid lawyer John May, letter
copy attached to motion with affidavit from paid attorney.” He also asserted as grounds the
discovery of new evidence, his absence from trial, a verdict prejudicing his substantial rights,
a verdict decided by lot, and jury misconduct. In his accompanying motion for new trial, he
set out nine numbered sections. Sections I through IV involved subpoenas for telephone
records and in section IV, he asserted:
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Cite as 2009 Ark. App. 833
while in possession of this evidence which would have prove[d] my innocence of the
charges against me, Ms. Greta J.H. Falkner failed her duties as my lawyer by not
assisting my paid lawyer which was John May after he was retained by defendant’s
spouse for proper legal assistance on 2/13/07. Ms. Greta Falkner Public defender,
didn’t turn over my case file until the actual morning of the trial 3/14/07 nor did she
advise him of the content in the file such as phone records from Cingular, witnesses
on my behalf outside of Anthony Washington who confess to the charges through his
own free will, but was threaten by the State Attorney after he had wrote and signed
a affidavit and had it notaried, stating he committed the crime I’m charged with.
In section V, he asserted that Ms. Falkner was aware of other witnesses, including
Theresa McCall, “which was subpoenaed by defense but somehow ended up being a state
witness,” but that Falkner did not tell John May and therefore he was unprepared for trial.
In section VI, he essentially asserted that the detectives lied about him having an active
warrant, upon which they based their arrest. Sections VII and VIII asserted that several jurors
were allowed to sit outside and see the victim, thereby prejudicing appellant, and that John
May should have asked for a mistrial. Also, he stated that “I asked my said lawyer to present
the phone records from my phones and my C.D.L. class A permit into evidence for the
second stage of my jury, he refused, so I fired him.” Further, he stated that the trial judge
allowed the trial to proceed even after appellant refused to return to the courtroom. In
section IX, he requested a new trial.
In denying this motion, the trial court explained in pertinent part:
The defendant requests a new trial based on the fact that his court appointed
attorney, Greta Faulkner, subpoenaed cell phone records regarding phone number
501-772-8929, including “tower or relays” information, which was not timely
provided to his second attorney, John May, who had been retained to replace Ms.
Faulkner. The defendant contends that these records would have proven his
innocence. This allegation is conclusory in that he does not state what these records could have
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Cite as 2009 Ark. App. 833
shown which would have been exculpatory or even admissible. He is not entitled to a new trial
based on this allegation.
The defendant next requests a new trial based on his contention that Ms.
Faulkner did not assist Mr. May by promptly turning over the case file to his new
attorney, or advising Mr. May of the contents of the file. The defendant states that
Ms. Faulkner did not advise Mr. May of the phone records or any witnesses other than
Anthony Washington. The defendant states Ms. Faulkner was aware of other potential
witnesses, but identifies only one by name, Theresa McCall. The defendant does not provide
any indication of what Ms. McCall could have testified to, other than stating she (McCall)
became a witness for the State. The record reflects that a Thelma McCall did in fact testify at
trial as a witness for the State. The defendant has not demonstrated any prejudice or shown that
a new trial is warranted based on this allegation.
The defendant next requests a new trial based on the allegation that he was
improperly arrested. He alleges that police officers altered evidence and lied regarding
the existence of an outstanding warrant on which he was arrested. Although the
defendant’s motion states he will prove the allegations with “new evidence,” he does not identify
what the new evidence is, or how it would warrant a new trial.
The defendant also requests a new trial based on the allegation that the victim
gave “3 to 4 different stories” regarding the incident. This is a challenge to the credibility
of a witness and is not a basis for a new trial.
The defendant also alleges there was contact between the potential jurors and
the victim and other witnesses in the trial prior to jury selection. The defendant
alleges this contact unfairly prejudiced him and deprived him of a fair trial. The record
reflects that the witnesses were brought into the courtroom, or were identified by
name if not physically present. The Court inquired of the jury panel if anyone knew any of
the witnesses, or had had any business or social contact with any of the witnesses. There was no
response from any juror indicating that any of the potential jurors knew, or had had any contact
with any of the witnesses. The defendant has not demonstrated a new trial is warranted based
on this conclusory allegation.
The defendant next requests a new trial based on his assertion that when he
asked his attorney to introduce the phone records and documents regarding an
application for a commercial driver’s license into evidence in the sentencing stage of
the trial, his attorney refused and the defendant states he fired his attorney at that point,
and refused to return to the courtroom. The defendant requests a new trial based on
the fact that the trial continued in his absence. The record reflects that the Court,
defense counsel, the prosecuting attorneys, and the Court reporter went to the lockup
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area where the defendant was being held after the verdict of guilty had been rendered
by the jury in the first stage of the trial. The record reflects that the Court personally
addressed the defendant and advised him that he had a right to be present in the
second stage of the proceedings, and the Court inquired of the defendant if he was
going to come into the courtroom. The defendant refused to respond to the Court’s
question, and the defendant was advised that his silence would be considered a waiver
of his right to attend the proceedings. The defendant was advised by the Court that
the proceedings would continue whether he attended or not. The record reflects that
the defendant was advised that if he changed his mind at any time and wished to be
present, he would be brought into the courtroom. A bailiff was stationed in the
lockup area to notify the Court if the defendant changed his mind. The record reflects
that after the jury had retired to deliberate the sentences, the Court, defense counsel,
the prosecuting attorneys, and the Court reporter went to the lockup area a second
time to again inquire if the defendant wished to be present in the courtroom. The
defendant again refused to respond. He was again advised that if he so wished, he
would be brought to the courtroom to attend the proceedings. The defendant’s absence
during the proceedings was the result of his own actions and by his own choice. He is not entitled
to a new trial on this ground.
(Emphasis added.)
The trial court’s order is well considered and well reasoned, addressing appellant’s
grounds for a new trial, many of which did not involve claims of ineffective assistance. The
three primary cases relied upon by appellant in the appeal to this court, Rounsaville v. State,
374 Ark. 356, 288 S.W.3d 213 (2008), Halfacre & Duty v. State, 265 Ark. 378, 578 S.W.2d
237 (1979), and Crouch v. State, 62 Ark. App. 33, 968 S.W.2d 643 (1998), are distinguishable
in that in each of those cases, a hearing was specifically requested by the defendant. Here, as
noted previously, it is undisputed that no hearing was requested. A hearing under Rule 33.3
is mandatory only when requested. If a hearing is not requested, then the decision of whether
to hold a hearing is a matter of discretion for the trial court. Kozal v. State, 264 Ark. 587, 573
S.W.2d 323 (1978). We will not reverse the actions of the trial court unless the trial court
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Cite as 2009 Ark. App. 833
has abused its discretion. Id. We find no abuse of the trial court’s discretion in denying
without a hearing appellant’s motion for a new trial.
Affirmed.
GLADWIN and BROWN, JJ., agree.
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