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Dark v. State

Court of Appeals of Arkansas, Division II

November 1, 2017

ROBERT THOMAS DARK APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-14-694] HONORABLE MARCIA R. HEARNSBERGER, JUDGE

          Amos J. Richards, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, Judge

         Appellant Robert Thomas Dark was convicted by a Garland County jury of possession of a controlled substance and sentenced as a habitual offender to fifteen years' imprisonment and ordered to pay a $10, 000 fine.[1] He raises four points on appeal: (1) the State failed to prove that he possessed a "useable" amount of a controlled substance, (2) the trial court abused its discretion using its local rule to cut off plea negotiations, (3) the trial court erred in denying his motion for a continuance and "in coercing him to accept appointed counsel, " and (4) the trial court erred by failing to order a fitness-to-proceed examination. We affirm.

         I. Trial Testimony - December 7, 2015

         Officer Brent Scrimshire with the Hot Springs Police Department testified that he assisted on a stolen-vehicle report and identified Dark as a passenger in that vehicle. An ACIC (Arkansas Crime Information Center) check revealed that Dark had a warrant. Officer Scrimshire patted him down for weapons and found none. The officer then asked Dark whether he had anything else on him, and Dark said that he had a small baggie in his pocket. The baggie contained a crystal-like substance, which field tested positive for methamphetamine.

         Nick Dawson, a drug chemist at the Arkansas State Crime Lab, testified that the test sample's total net weight was .3541 grams, and he confirmed that it was methamphetamine and dimethyl sulfone.

         II. Discussion

         A. Sufficiency of the Evidence

         Arkansas Code Annotated section 5-64-419(a) (Repl. 2016) provides that, except as provided by this chapter, it is unlawful for a person to possess a controlled substance. A person who violates this section with respect to a Schedule I or Schedule II controlled substance that is methamphetamine or cocaine with an aggregate weight, including an adulterant or diluent, of less than two grams upon conviction is guilty of a Class D felony. Ark. Code Ann. § 5-64-419(b)(1)(A).

         Dark argues that, because no test was performed to determine what percentage of the sample weighing .3541 grams was methamphetamine, as opposed to the cutting agent, the State failed to prove that he possessed a useable amount of methamphetamine. Dark relies on Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), in which our supreme court reversed the appellant's possession-of-cocaine conviction because a bottle found in his possession contained "less than a useable amount of cocaine."

         Arkansas Rule of Criminal Procedure 33.1(a) provides that a motion for directed verdict in a jury trial must be made at the close of the State's evidence and at the close of all the evidence, and it must specify the respect in which the evidence is deficient. Campbell v. State, 2017 Ark.App. 59, 512 S.W.3d 663. After the State rested in this case, the trial court asked defense counsel whether he had any motions to make and was told, "No, I don't believe the record supports any motions for directed verdict or otherwise." Because Dark made no directed-verdict motion below, his challenge to the sufficiency of the evidence is not preserved for review. Swanigan v. State, 2016 Ark.App. 15.

         B. "Local Rule"

         Initially, the State offered Dark three years in exchange for his guilty plea. He rejected that offer. Later, the State offered Dark ten years, but he rejected that offer as well. At a pretrial hearing on November 18, 2015, the trial court said, "There will be no other plea offers after today." Dark said that he wished to plead guilty and completed the necessary paperwork; however, Dark ultimately said that he would plead not guilty.

         On December 7, 2015, the day of trial, Dark asked the trial court in chambers whether DCC (Department of Community Correction) was "off the table." Defense counsel referred to the judge's "policies" and how they were to be followed regarding the "cut-off point" with plea negotiations. Dark explained that he had gotten "shaken" and "rattled" and, "out of [his] panic, " had said, "Not guilty" at the pretrial hearing on November 18.

         Dark argues on appeal that the trial court's "local rule" regarding plea negotiations is the type of rule abolished by the Arkansas Supreme Court's per curiam decision dated December 21, 1987. In re Changes to the Ark. Rules of Civil Procedure, 294 Ark. 664, 742 S.W.2d 551 (1987) (per curiam). Although Dark claims that he suffered prejudice by the trial court's "refusal to allow a plea bargain, " the facts do not support that assertion.

         Assuming this was a local rule, as opposed to the trial court's simple exercise of control over its courtroom and docket, the judge considered paperwork handed to her by defense counsel on the day of trial indicating that Dark wished to admit to the charge and to his habitual-offender status. After some colloquy, the judge said, "I've asked you this question, now this is the third time I've asked you the question and I won't ask it again. Do you wish to plead guilty?" Dark responded, "No, I don't." Dark cannot demonstrate prejudice because the trial court considered plea negotiations right up to the start of the trial, but Dark refused the last-minute plea offer and chose to go to trial. We find no reversible error.

         C. Continuance and Coercion

         The refusal to grant a continuance in order for the defendant to change attorneys rests within the sound discretion of the trial court. Alexander v. State, 55 Ark.App. 148, 934 S.W.2d 927 (1996). Moreover, the right to counsel of one's choice is not absolute; if change of counsel would require postponement of trial because of inadequate time for a new attorney to properly prepare a defendant's case, the court may consider, in granting or denying the change, such factors as the reasons for the change, whether other counsel has already been identified, whether the defendant acted diligently in seeking the change, and whether the denial is likely to result in any prejudice to the defendant. Id. On appeal, we review the denial of a motion for continuance under an abuse-of-discretion standard. Creed v. State, 372 Ark. 221, 273 S.W.3d 494 (2008). An appellant must demonstrate not only that the trial court abused its discretion in deciding the motion but also that the ruling resulted in prejudice amounting to a denial of justice. Id.

         Dark argues that the trial court summarily denied his motion for a continuance without any consideration of the relevant factors. He contends that he was thus given no opportunity to articulate the reasons a continuance was warranted. Dark further argues that, despite his insistence on representing himself, the trial court "coerced [him] into continued representation by his trial counsel."

         On the morning of trial, defense counsel informed the trial court that Dark wished to discharge him and represent himself. Dark said, "I would beg for the Court's mercy on a continuance since I am-" The trial judge said, "That's denied. We're not going to continue this case."

Court: Okay. So we're going to go out there. Mr. Fraiser is going to represent you. You're going to talk to him and tell him what you want, what you want the jury to know, what you want the jury to see, and we're ...

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