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Talley v. State

Court of Appeals of Arkansas, Division I

October 25, 2017

DARRYL VINCENT TALLEY, JR. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-11-3766] HONORABLE LEON JOHNSON, JUDGE

          William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge

         Appellant, Darryl Talley, appeals his convictions by the Pulaski County Circuit Court on charges of robbery, theft of property, and employment of a firearm to commit aggravated robbery, for which he received an aggregate sentence of fourteen years' imprisonment. Appellant argues that the trial court erred in denying his request to represent himself at trial and, as a procedural matter, that his sentencing order erroneously reflects that he was convicted of a Class B felony rather than a Class C felony, theft of property. We affirm appellant's convictions and remand the case for the limited purpose of allowing the trial court to correct the error in the sentencing order.

         On an initial procedural note, the parties agree that there is an error that needs to be corrected on the sentencing order. Appellant was charged with, among other charges, theft of property with a value of $25, 000 or more, a Class B felony offense, in violation of Arkansas Code Annotated section 5-36-103(b)(1)(A) (Supp. 2011). The trial court found him guilty of the lesser-included offense of theft of property with a value of less than $25, 000 but more than $5, 000. It is clear from the transcript that appellant was convicted of the lesser-included Class C felony, theft of property, but the sentencing order reflects a checkmark beside the offense classification "B" for the theft-of-property conviction. The ten-year sentence indicated on the sentencing order is consistent with the sentence announced by the trial court in open court and is within the statutory range for a Class C felony offense. Because the checkmark beside classification "B" rather than "C" appears to be simply a clerical error, we hold that this is the type of error that trial court can correct at any time by entering an amended sentencing order nunc pro tunc. See McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999). We also note that the sentencing order erroneously indicates that appellant was sentenced to an additional term of suspended imposition of sentence for the theft-of-property conviction. [1] Like the checkmark on offense classification "B", this is a clerical error. Accordingly, we remand for the limited purpose of allowing the trial court to correct these errors. See Pascuzzi v. State, 2016 Ark.App. 213, at 1, n.2, 489 S.W.3d 709, 710, n.2.

         I. Facts and Procedural History

         On May 7, 2013, the State filed an amended felony information against appellant, alleging in relevant part that on or about October 7, 2011, appellant committed against Charleston Brown two felony offenses: (1) the Class Y felony of aggravated robbery; and (2) Class B felony theft of property. In the information, the State also alleged that because appellant employed a firearm to commit a felony, any sentence of imprisonment imposed on him for committing that felony should be enhanced pursuant to Ark. Code Ann. § 16-90-120(a)-(b) (Repl. 2015).

         Appellant's bench trial was held on May 2, 2016. Appellant preserved the issue now before us by repeatedly asking, at the beginning of his trial, that he be allowed to represent himself and be his own defense counsel. The trial court denied appellant's repeated requests to represent himself at trial and act as his own lawyer, and the trial court found appellant guilty of having committed aggravated robbery, Class C felony theft of property, and of having used a firearm to commit aggravated robbery. At the sentencing hearing held on June 29, 2016, the trial court sentenced appellant to an aggregate sentence of fourteen years' imprisonment pursuant to sentencing orders filed on July 6, 2016. Appellant filed a timely notice of appeal on August 5, 2016.

         II. Standard of Review and Applicable Law

         A defendant in a criminal case has a Sixth and Fourteenth Amendment right to represent himself at trial. Faretta v. California, 422 U.S. 806 (1975). A defendant in a criminal case also has the right to represent himself at trial and act as his own lawyer pursuant to article 2, ·section 10 of the Arkansas Constitution. Ivory v. State, 2017 Ark.App. 269, 520 S.W.3d 729. Whether a trial court erred in denying a defendant's request to represent himself at trial is an issue of law. State v. Blanchard, 236 P.3d 845, 848 (Ore. App. 2010). This court reviews issues of law de novo. Howard v. State, 2010 Ark.App. 382.

         III. Discussion

         At the start of appellant's bench trial, he requested that the trial court allow him to represent himself and act as his own lawyer. After the following colloquy that focused on how much appellant knew about the law and courtroom procedure, the trial court denied appellant's request:

The Court: Set for bench trial today. Both sides ready for trial?
Defense Counsel: We are, sir. However, the defense, I believe there is a pro se motion my client would like to address to the court before we proceed.
The Court: Mr. Talley, good afternoon, sir.
Appellant: I'm revoking him as my public defender-
The Court: On what grounds?
Appellant: -and I would like to represent myself.
The Court: On what grounds?
Appellant: Oh, on what ground?
The Court: Yeah, that's the question I asked you twice.
Appellant: Because I'm competent to withstand trial.
The Court: You are?
Appellant: Yes, I-
The Court: Do you know the rules of evidence?
Appellant: Yes, sir.
The Court: How far did you go in school?
Appellant: I went-I compl-went all the way in the 12th grade, from 9th to 12th grade, Little Rock Central High.
The Court: And what did you do after school to learn about the law?
Appellant: What did I-I'm not schooled in law.
The Court: What do you know about the rules of evidence?
Appellant: Yes, sir.
The Court: What do you know about the rules of evidence?
Appellant: I know that the evidence must be brung forward if it's requested by law before I proceed in any of my cases or take any pleas. And I asked the gentleman a couple of times-that there was revoked. It's like they're using scare tactics trying to get me to cop pleas and I'm steady telling them no, I'm not waiving any of my rights.
The Court: Okay. I'm not asking you about whether you're waiving any of your rights. I want to know what do you know about the law that governs what is admitted into evidence and what cannot be admitted into evidence.
Appellant: I know the basic rule of affidavit.
The Court: Okay. Tell-rule of affidavits?
Appellant: Yes.
The Court: Okay. Do you know anything about the rules of chain of custody?
Appellant: Chain of custody?
The Court: Yes, sir.
Appellant: I don't have any idea what-
The Court: Okay.
Appellant: ...

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