Berkley v. State

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          APPEAL FROM THE BOONE COUNTY CIRCUIT COURT [05CR-14-86], HONORABLE GORDON WEBB, JUDGE

         Hancock Law Firm, Little Rock, by: Charles D. Hancock, for appellant.

         Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.

          OPINION

         ROBERT J. GLADWIN, Judge

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          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. W 2015-00831-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.

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          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 ...