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Whitlow v. State

Court of Appeals of Arkansas, Division III

November 2, 2016

ANTONIO WHITLOW APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO. 60CR-12-3469] HONORABLE BARRY ALAN SIMS, JUDGE AFFIRMED.

          Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, CHIEF JUDGE.

         Appellant Antonio Whitlow appeals his convictions from the Pulaski County Circuit Court on two counts of murder in the first degree and kidnapping. He argues that the trial court incorrectly refused to allow him to represent himself pro se. Specifically, Whitlow claims that the trial court's reliance on his educational level and prior legal knowledge were invalid bases for its refusal to allow him to appear pro se. We affirm.

         I. Facts

         Whitlow appeals his convictions for two counts of murder in the first degree (one count in the presence of a child) and kidnapping. He was sentenced to sixty years for each count of murder in the first degree, plus five years for kidnapping, and he received an additional ten years for committing one count of murder in the first degree in the presence of a child. All sentences are to run consecutive to one another for a total of 135 years to be served in the Arkansas Department of Correction.

         On the eve of trial during an omnibus hearing, Whitlow addressed the trial court and indicated that he no longer wanted his court-appointed attorney of record, Ronald L. Davis, to represent him. Whitlow indicated that he intended to hire new counsel, Teresa Bloodman, but stated that she would not assume his representation until counsel of record withdrew. The trial court declined to relieve counsel without other counsel being present to enter an appearance and indicated, "Okay, let's have this hearing."

         Whitlow then expressed that if he was left with the choice between having counsel of record continue to represent him or of representing himself, he preferred to represent himself. Specifically, Whitlow asked the trial court, "Okay. So why come I can't represent my own self tomorrow?" After a short recess, the trial court placed Whitlow under oath, and in direct response to the trial court's asking Whitlow if he wanted to represent himself the following day at trial, Whitlow responded, "If I can't have [Teresa] Bloodman, yeah." After exhaustive questioning by the trial court, much of which involved irrelevant inquiries about Whitlow's legal abilities, the trial court refused to allow Whitlow to proceed pro se.

         II. Standard of Review and Applicable Law

         Our standard of review is whether the circuit court's finding that a waiver of rights was knowingly and intelligently made was clearly against the preponderance of the evidence. Williams v. State, 2009 Ark.App. 684, 372 S.W.3d 358. Justice Stewart opined in Faretta v. California, 422 U.S. 806 (1975), that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated another way, the inquiry is whether a State may constitutionally hale a person into its criminal courts and force a lawyer upon him, even when he wants to conduct his own defense. See id.

         The Sixth Amendment to the United States Constitution, made obligatory upon the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have assistance of counsel for his defense. Williams, supra. Article 2, section 10, of the Arkansas Constitution specifically provides that an accused in a criminal prosecution has the right to be heard by himself and his counsel. Id. It is also well established that an accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to assistance of counsel in his defense. Id.

         The constitutional right to counsel is a personal right and may be waived at the pretrial stage or at trial. Walton v. State, 2012 Ark. 336, 423 S.W.3d 56. An accused is entitled to represent himself provided that he knowingly and intelligently forgoes his right to counsel and is able and willing to abide by the rules of procedure and courtroom protocol. Jarrett v. State, 371 Ark. 100, 263 S.W.3d 538 (2007). Our supreme court has said that a defendant in a criminal case may invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Id.

         III. Discussion

         The following exchange, in relevant part, occurred between the trial court and Whitlow:

Trial Court: Okay. Do you believe that you're competent to represent yourself?
Whitlow: Yes.
Trial Court: What kind of education have you received?
Whitlow: I received past the twelfth grade education.
Trial Court: Can you read and write?
Whitlow: Yes.
Trial Court: Have you been through criminal trials before? Do you know how to do a trial? Have you sat through a trial? Have ...

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