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Ivory v. State

Court of Appeals of Arkansas, Division I

May 3, 2017

LEE SULLIVAN IVORY APPELLANT
v.
STATE OF ARKANSAS APPELLEE 2017 Ark.App. 269

         APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT COURT [NO. 32CR-2014-223] HONORABLE JOHN DAN KEMP, JUDGE

          Hancock Law Firm, by: Sharon Kiel, for appellant.

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

          BART F. VIRDEN, JUDGE

         An Independence County jury convicted appellant Lee Sullivan Ivory of possession of a controlled substance, possession of drug paraphernalia, and failure to appear. He was sentenced as a habitual offender to an aggregate term of forty-two years in prison. He does not challenge the sufficiency of the evidence supporting his convictions. His only argument is that the trial court erred in permitting him to represent himself at trial. We affirm.

         I. Arraignments and Pretrial Hearings

         A. Arraignment (Drug Offenses)-November 18, 2014

         On November 14, 2014, the State filed an information charging Ivory with possession of a controlled substance and possession of drug paraphernalia on October 30, 2014. At his arraignment, the trial court informed Ivory of the range of punishment available for each Class D felony offense. The following colloquy occurred:

Court: And since you're facing a possible prison sentence, you have the right to the assistance of counsel. If the Court determines you're an indigent and can't afford to hire an attorney, then the Court can appoint an attorney which will be paid for by the State in representing you.
Ivory: I waive all them rights.
Court: Okay, so you're wanting to waive your right to an attorney?
Ivory: I waive it all. I want to defend myself.
Court: Okay, before the Court can allow you to do that, you're going to have to fill out some paperwork. Can you read and write?
Ivory: Yes.
. . . .
Court: I'm going to need to have a hearing to determine that you're voluntarily, that you're knowingly, and that you're intelligently waiving your right to an attorney and that you're competent to do so. So we'll give you these forms and I've got to make those determinations before the Court is going to allow you to waive an attorney and represent yourself.
Ivory: Okay.
. . . .
Court: Mr. Ivory, when you appeared earlier this morning, you'd indicated to the Court that you wanted to waive your right to an attorney. Is that correct?
Ivory: That's right, sir.
. . . .
Court: [S]ince you are requesting to represent yourself and waive your right to an attorney, the Court needs to make a determination if you're voluntarily, knowingly, and intelligently waiving your right to an attorney and that you're competent to do so. And for the Court to do that, you're going to have to answer some questions that I'm going to ask you regarding these issues.
. . . .
Court: How old are you?
Ivory: Fifty years old.
Court: Are you a high school graduate?
Ivory: No, sir. I have a GED.
Court: Do you have any college hours?
. . . .
Ivory: One semester.
Court: What college?
Ivory: Shorter College, North Little Rock.
Court: Do you understand these proceedings here today?
Ivory: Yes, I do.
Court: Is there anything that prevents you from understanding these proceedings?
Ivory: Due to lack of reading my law books and the lack of law material in the county jail, that's it.
Court: Are you under the influence of drugs or alcohol today?
Ivory: No, sir.
. . . .
Court: Since you're facing two [Class D felonies], you're facing a maximum of not more than twelve years in prison or fines of not more than twenty thousand dollars or both. So do you understand the maximum range of punishment?
Ivory: Yes.
Court: And do you understand that under the Constitution of the United States and the Constitution of the State of Arkansas that you're entitled to and will be provided legal counsel free of charge if you're financially unable to obtain legal counsel without causing substantial hardship to yourself or your family? Do you understand that?
Ivory: Yes.
Court: Do you understand that the Court will not continue further in these proceedings until counsel is provided if you request it? And knowing this, do you voluntarily and with knowledge of these rights, waive your right to counsel?
Ivory: Yes.
Court: Do you further understand that even if you're allowed to waive your right to counsel at this time, that that shall not preclude you or prevent you from claiming your right to counsel in these proceedings until the proceedings are completed. Do you understand that?
Ivory: Right. Yes, sir.
Court: Also I need to inform you that you're entitled to legal counsel at every stage of these proceedings where substantial rights of a criminal accused may be affected. So do you understand that?
Ivory: Could you repeat that again?
Court: Okay. You're entitled to have legal counsel at every stage of these proceedings where substantial rights of a criminal accused may be affected. So do you understand that?
Ivory: Yes.
Court: Okay, I need to advise you of some of the dangers and disadvantages of self-representation that include but are not limited to the following. There's a danger of knowing when or if you should waive certain rights. Do you understand that?
Ivory: Yes.
Court: The Rules of Criminal Procedure and the Rules of Evidence will be enforced by this Court. Do you understand that?
Ivory: Yes.
. . . .
Court: The Court is not going to advise you one way or another in this case like an attorney would. So do you understand the Court's not going to assist or advise you? Do you understand that?
Ivory: Lead me, right.
Court: You do?
Ivory: Yes.
Court: Also, a working knowledge of court procedure, of the rules of evidence, and of conducting a hearing or trial are essential. So do you understand that?
Ivory: Yes.
Court: If motions or objections are not timely or correctly made, then they will not be considered by the court. Do ...

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