APPEAL
FROM THE BOONE COUNTY CIRCUIT COURT [05CR-14-86] HONORABLE
GORDON WEBB, JUDGE
Hancock Law Firm, by: Charles D. Hancock, for appellant.
Leslie
Rutledge, Att'y Gen., by: David L. Eanes, Jr., Ass't
Att'y Gen., for appellee.
ROBERT
J. GLADWIN, JUDGE
Appellant
Larry Berkley appeals his conviction by the Boone County
Circuit Court, arguing that the State of Arkansas violated
his right to a speedy trial pursuant to Arkansas Rule of
Criminal Procedure 28.1 (2018) by not trying his case within
the allotted time frame. We affirm.
I.
Facts
Appellant
was served with an arrest warrant on or about May 7, 2014, in
the State of Tennessee on charges[1] pending in Boone County,
Arkansas. Appellant appeared in the Boone County Circuit
Court with his counsel for arraignment on May 16. Appellant
posted bond on May 23, with his next court appearance set for
August 15, trial set for October 27. Appellant was ordered to
keep the circuit court apprised of his whereabouts as a
condition of his bond.
Soon
thereafter, appellant was arrested in Tennessee on similar
but unrelated felony charges that were alleged to have
occurred prior to the charges in Boone County, and he was
placed in the county jail in Lauderdale County,
Tennessee.[2] On June 2, 2014, a grand jury in
Lauderdale County returned a fourteen-count indictment
against appellant. See Tennessee v. Berkley, No.
W2015-00831-CCA-R3-CD, 2016 WL 3006941, at *1 (Tenn. Crim.
App. May 17, 2016), perm. app. denied (Tenn. Sept.
23, 2016).
Appellant
did not appear in Arkansas as scheduled on August 15, 2014,
because of his incarceration in Tennessee, but his attorney,
Bryan Huffman, did appear, and the matter was reset to
September 26. Huffman filed a motion to continue
appellant's Arkansas case on September 22 based on the
Tennessee charges, the serious nature of the charges, and the
number of witnesses involved. The motion further indicated
that appellant waived speedy trial and acknowledged that a
docket notation is sufficient to reflect the waiver. The
circuit court granted the motion and excluded the time from
September 26 to November 25, 2014-the date that the matter
had been reset for pretrial hearing.
Appellant
filed a second motion for continuance on October 3, 2014,
which was granted on October 27, and the matter was again
reset, this time for March 30, 2015. The order reflects that
appellant's presence was waived by Huffman and states
that speedy trial is tolled because appellant was
incarcerated in Tennessee.
Appellant's
trial was held in Tennessee on January 26-27, 2015, and he
was convicted of all fourteen felony charges and was
sentenced on February 19 to thirty-five years in the
Tennessee Department of Correction.
The
Arkansas circuit court entered an order on February 23, 2015,
ordering appellant and counsel to appear for a pretrial
hearing on Friday, March 27, 2015, and setting the five-day
jury trial for March 30. Appellant, who had a detainer
available to him pursuant to the Interstate Agreement on
Detainers Act (IAD), Ark. Code Ann. §§ 16-95-101 et
seq. (Repl. 2006), refused to sign the paperwork and
requested to wait until his postconviction matters were taken
care of in Tennessee. On March 27, appellant failed to
appear, and the circuit court then issued an alias warrant
and revoked his bond on June 30, noting that he remained
incarcerated in Tennessee.
After
the Tennessee Court of Criminal Appeals affirmed his
convictions on May 17, 2016, appellant sought permission to
appeal to the Tennessee Supreme Court, which was denied on
September 23, 2016. Huffman filed a motion to withdraw as
counsel on July 25, 2016, but he did not ask for a hearing on
the motion and thus remained attorney of record.
On
January 4, 2017, an order was entered placing the case on the
inactive docket due to appellant's absconding. On March
7, a form titled "IAD Form V-Request for Temporary
Custody" was filed with the circuit court and signed by
both the circuit court and one of the prosecutors; however,
that form was not signed by both appellant or his counsel.
There is also a filing in the circuit court file titled
"Appellant's Pro Se Motion for Request for Temporary
Custody Under the IAD to be Held in Abeyance," filed
March 27.
On May
4, 2017, a five-page group of forms titled "Agreement on
Detainers: Form III" was filed with the circuit court.
The forms were received from a warden in Tennessee, and they
acknowledged the detainer from Arkansas under the IAD. The
forms contained appellant's signature signed in front of
a witness and were received from a Tennessee prison official
stating that the IAD was in place.
Appellant
was extradited back to Boone County, Arkansas, on August 2,
2017, where he appeared in court on August 4. Huffman's
longstanding motion to withdraw was granted at that
appearance; a public defender was ...