Block v. State
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Cite as 2010 Ark. App. 603
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR09-1373
WILLIOUS E. BLOCK
Opinion Delivered
APPELLANT
V.
STATE OF ARKANSAS
APPELLEE
SEPTEMBER 15, 2010
APPEAL FROM THE HEMPSTEAD
COUNTY CIRCUIT COURT
[NO. CR-07-468-1]
HONORABLE RANDY WRIGHT,
JUDGE
AFFIRMED
KAREN R. BAKER, Judge
On August 28, 2009, a jury in Hempstead County convicted appellant Willious Block
of robbery, two counts of breaking or entering, misdemeanor battery, and misdemeanor theft
of property. He was sentenced to twenty-seven years and six months’ imprisonment at the
Arkansas Department of Correction.1 On appeal, he argues that the trial court erred in
denying his motion to dismiss for lack of a speedy-trial. The appellate courts conduct a de
novo review to determine whether specific periods of time are excludable under our speedy
We note that the judgment and commitment order contained in the addendum is the
amended judgment and commitment order filed on October 6, 2009. Although appellant’s
notice of appeal references the original judgment, the notice is not defective because there is
no change in the amended judgment, and because appellant filed his notice of appeal in a
timely manner based on the date of the filing of the original judgment.
1
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trial rules. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007); Cherry v. State, 347 Ark.
606, 66 S.W.3d 605 (2005). We affirm.
The right to a speedy trial is articulated in the Bill of Rights, U.S. Const. Amend. 6,
and guaranteed to state criminal defendants by the Fourteenth Amendment. Klopfer v. North
Carolina, 386 U.S. 213 (1967). Pursuant to Arkansas Rule of Criminal Procedure 28.1(b), the
State is required to bring a defendant to trial within twelve months, excluding any periods of
delay authorized by Arkansas Rule of Criminal Procedure 28.3. Romes v. State, 356 Ark. 26,
144 S.W.3d 750 (2004); Moody v. Arkansas County Circuit Court, 350 Ark. 176, 85 S.W.3d
534 (2002). If a defendant is not brought to trial within the requisite time, Arkansas Rule of
Criminal Procedure 30.1 provides that the defendant will be discharged, and such discharge
is an absolute bar to prosecution of the same offense and any other offense required to be
joined with that offense. Id. Appellant was arrested on November 28, 2007, and should have
been brought to trial by November 28, 2008, if there were no excludable periods under Rule
28.3. Because the trial did not occur until 639 days later, on August 28, 2009, appellant made
a prima facie case that his right to a speedy trial was violated; therefore, the burden was on the
State to show that the delay was the result of appellant’s conduct or was otherwise justified.
State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008); Miles v. State, 348 Ark. 544, 75
S.W.3d 677 (2002).
There are three undisputed speedy-trial time periods within this appeal. The first time
period chargeable to the State is the 90 days from appellant’s time of arrest until the order for
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the mental health evaluation (“MHE”) on February 26, 2008. The second time period
concerns when the MHE stopped tolling the speedy-trial time period. The trial court
determined that the MHE was completed on June 16, 2008. Appellant does not dispute that
97 of those days are properly chargeable to him.2 The third time period is 163 days of
excludable time attributable to appellant. At a hearing on March 18, 2009, appellant
requested a continuance from the circuit court to appoint a new public defender. He clearly
stated that he was waiving his speedy trial right as to that time period. On April 17, 2009,
appellant’s new counsel, his third attorney, requested a continuance. The trial court granted
this request, and a new date was set for August 24, 2009, but the trial did not start until
August 28, 2009.3
June 2, 2008 to August 11, 2008 (70 days)4
The time necessary to complete the MHE ordered by the trial court pursuant to Ark.
Appellant fleetingly advances that no amount of time for the MHE should be
chargeable to him as the report was never filed; however, he explicitly states that June 2, 2008
is the correct date the MHE was completed for speedy-trial purposes. Appellate courts will
not address arguments not fully developed, Walters v. Dobbins, 2010 Ark. 260, ___ S.W.3d
___, and we decline to do so here.
2
The record reflects that while the continuance was granted until August 24, 2009, the
trial occurred on August 28, 2009. The record also reflects that appellant’s counsel requested
a change in the scheduled trial date to accommodate his schedule, thus, the computation is
based upon the actual trial date. As these days are not challenged, it is not necessary to further
analyze them.
3
The time periods are determined based upon the nature of appellant’s challenges. He
disputes two time periods 1) the completion date of his MHE and 2) the continuances
requested by his second attorney.
4
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Code Ann. § 5-2-305 (Repl. 2006) shall be excluded from the one-year period for speedy
trial. See Ark. R. Crim. P. 28.3(a). Rule 28.3(a) specifically states that the excludable period
of delay includes, but is not limited to, an examination and hearing on the competency of the
defendant. On February 26, 2008, an order for the MHE was entered by the trial court. On
May 22, 2008, the docket entry showed that the MHE was complete. Additionally, on June
2, 2008, it stated “MHE has been completed but no report” and there was an entry setting
a new trial date. The MHE report, on its first page, stated that it was submitted on June 16,
2008. The trial court held that the MHE was completed on June 16, 2008. The MHE report
was entered as an exhibit at a hearing on August 13, 2009, wherein the trial court found that
“they submitted their report ... on June 16, 2008, and there is no excludable period between
February 26, 2008, until today’s date as a result of the docket entries that have been reviewed
by this court.” The written order denying the motion to dismiss for speedy trial violation,
nor the docket entries, furnish illumination for the court’s extension of excludable time
beyond the submitted date of the MHE.
Appellant focuses this court on the fact that the MHE report was not filed. The filing
requirement can be found in Ark. Code Ann. § 5-2-305(f) (Repl. 2006):
(1) A person designated to perform a forensic examination shall file the report
of the forensic examination with the clerk of the court, and the clerk of the
court shall mail a copy to the defense attorney and a copy to the prosecuting
attorney.
(2) Upon entry of an order by the circuit court, a copy of the report of the
forensic examination concerning a defendant shall be provided to the circuit
court by the person designated to perform the forensic examination.
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Appellant argues that the setting of a new trial date by the circuit court proved that the MHE
was completed on June 2, 2008. Thus, he argues that is the date the tolling should have
ended. Appellant relies upon Hufford v. State, 314 Ark. 181, 184, 861 S.W.2d 108, 109
(1993), and Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995). Both of those cases,
however, simply state that the delay caused by a mental examination is excluded. They did
not discuss how to determine the completion date of the MHE when the report is not filed.
That was addressed in Davis v. State, 375 Ark. 368, 373, 291 S.W.3d 164, 168 (2009), where
the court said “[b]ecause the report could not have been filed prior to its mailing, we accept
the cover letter date ... as the last date of exclusion attributable to Davis on the mental
evaluation.”
In this case there is no transmittal letter with the MHE report; however, on the first
page, it stated that the examination was conducted on May 13, 2008, and that it was
submitted on June 16, 2008. Pursuant to Davis, the last day of exclusion attributable to
appellant is June 16, 2008. Therefore, 14 days from June 2, 2008, to June 16, 2008, are
chargeable to appellant, and the 56 days from June 16, 2008, to August 11, 2008, are
attributable to the State.
August 11, 2008 to March 18, 2009 (219 days)
Appellant argues that two motions for continuance constituting 219 days filed by Billy
Moritz were ineffective to toll speedy trial as he was not appellant’s counsel of record and had
no authority to act on his behalf. Specifically, appellant contends that Danny Rodgers, the
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first attorney who represented him, did not follow the proper procedure to withdraw as his
attorney. He further argues that once Mr. Rodgers was appointed as his counsel by the court,
only the court could have relieved him or substituted another attorney. Additionally, he
espouses that Rule 64(b) of the Arkansas Rules of Civil Procedure was not followed, which
would have prevented prejudice to him.
A defendant’s right to counsel of choice is grounded in the Sixth Amendment to the
United States Constitution, and also guaranteed by article 2, section 10 of the Arkansas
Constitution. Wormley v. State, 2010 Ark. 474, ___ S.W.3d ___. While constitutionally
guaranteed, the right to counsel of one’s own choice 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). Also, the
Sixth Amendment does not guarantee that a criminal defendant will be represented by the
lawyer whom he prefers. See Morris v. Slappy, 461 U.S. 1 (1983).
The record reveals that at his first appearance, the public defender’s office, not a
specific attorney, was appointed to represent appellant. On August 5, 2008, Mr. Rodgers,
managing public defender, filed notice that the case had been reassigned to Billy Moritz,
another public defender, due to an ethical conflict of interest. In that notice, the certificate
of service stated that a copy was sent to appellant. On August 11, 2008, Mr. Moritz filed a
motion for continuance stating that the speedy trial requirement was waived. The order
granting a new trial date of December 1, 2008, reflected that the speedy-trial time had been
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tolled. Mr. Moritz filed another motion for continuance asserting again that the speedy-trial
rule was waived. The trial court granted the motion on November 24, 2008, setting a new
trial date for March 23, 2009, and again said that the speedy trial rule was tolled.
The United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972) held that
the constitutional right to a speedy trial, like any other fundamental constitutional right, may
be waived. In Eubanks v. Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998), the Arkansas
Supreme Court held that a waiver was effective by a criminal defendant to his right to a
speedy trial as it was made within the twelve-month period, taking into account any
excludable periods. There is no question here that the waivers were made within the speedytrial time. Appellant is bound by the acts of his attorney. See Lovelace v. Director, Employment
Sec. Dep’t, 78 Ark. App. 127, 79 S.W.3d 400 (2002)(client bound by even the negligent acts
of his attorney).
Appellant’s argument regarding the appointment of Mr. Moritz is not supported in the
record. The record of the first judicial appearance showed that the “public defender’s office”
was appointed and that such was explained to appellant. This was hand written in a blank
space on a form document that appellant signed, attesting to his understanding that the public
defender’s office was appointed. On February 19, 2009, the docket entry reflected that the
trial judge released the public defender’s office pursuant to appellant’s request to act pro se.
On March 13, 2009, the docket sheet stated that appellant was present and he declined the
attorney that had been appointed. Additionally, the entry showed “Mr. Moritz ordered to
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be standby to answer any Qs.” On March 18, 2009, the entry showed that appellant was
granted counsel at his request. Specifically, the record stated that the public defender
commission was to appoint counsel for appellant. At the actual hearing, the trial court
carefully explained to appellant that he was not appointing him a specific attorney, but rather
was going to allow the public defender commission to decide who would represent him.
Appellant acknowledged this several times in open court. Therefore, appellant’s argument that
Mr. Moritz was never his appointed attorney has no merit.
Additionally, appellant argues that Rule 64 of the Arkansas Rules of Civil Procedure
was not followed by Mr. Rodgers in withdrawing from representing him; yet, appellant does
not demonstrate how that impacts his right to a speedy trial. We will not reach the merits of
an argument on appeal, even a constitutional one, when the appellant presents no citation to
authority or convincing argument in its support, and it is not apparent without further
research that the argument is well taken. Harrison v. State, 371 Ark. 652, 269 S.W.3d 321
(2007); Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005).
In sum, of the total 289 days challenged in this appeal, 56 days are chargeable to the
State and 233 days are attributable to appellant. Of the 639 days from the date of arrest to the
date of trial, 493 days are excludable and attributable to appellant. Because only 146 days are
chargeable to the State, the trial court did not err in denying appellant’s motion to dismiss for
lack of speedy trial.
Affirmed.
GRUBER and HENRY, JJ., agree.
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