APPEAL
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA
DISTRICT [NO. 47BCR-16-94] HONORABLE RALPH WILSON, JR., JUDGE
Jamal
Akram, pro se appellant.
Leslie
Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE
Appellant
Jamal Akram was convicted by a Mississippi County jury of
first-degree murder and was sentenced as a habitual offender
to sixty years' imprisonment. This court upheld his
conviction in Akram v. State, 2018 Ark.App. 504, 560
S.W.3d 509. Akram filed a Rule 37 petition challenging issues
concerning his waiver of counsel at trial as well as a claim
of ineffective assistance of appellate counsel. On January
14, 2019, the circuit court denied his petition. Akram now
appeals the circuit court's denial of his petition. On
appeal, he argues that his waiver of trial counsel was
invalid because his request to represent himself was
equivocal and untimely, and he had ineffective assistance of
appellate counsel on direct appeal. Neither point has merit,
and we affirm.
Akram's
conviction stems from the beating death of his live-in
girlfriend, whose body was found in their home on March 18,
2016. Prior to the start of the second day of trial, Akram
asked to represent himself. After the circuit court delivered
a lengthy lecture about the dangers of self-representation
and a thorough inquiry into Akram's desire to represent
himself, Akram signed a waiver of counsel and was allowed to
represent himself.
When
reviewing a circuit court's ruling on a Rule 37 petition,
we will not reverse the circuit court's decision granting
or denying postconviction relief unless it is clearly
erroneous. E.g., Nichols v. State, 2017
Ark. 129, at 2, 517 S.W.3d 404, 407. A decision is clearly
erroneous if, even with evidence to support the decision,
this court "is left with the definite and firm
conviction that a mistake has been committed."
Id.
A
defendant has a constitutional right to self-representation.
Faretta v. California, 422 U.S. 806 (1975). This
necessarily requires the waiver of the right to be
represented by counsel, which is a personal right that may be
waived at the pretrial stage or at trial. E.g.,
Jarrett v. State, 371 Ark. 100, 104, 263 S.W.3d 538,
542 (2007). A criminal defendant may invoke his right to
defend himself pro se if "(1) the request to waive the
right to counsel is unequivocal and timely asserted, (2)
there has been a knowing and intelligent waiver of the right
to counsel, and (3) the defendant has not engaged in conduct
that would prevent the fair and orderly exposition of the
issues." Id., 263 S.W.3d at 541. Every
reasonable presumption must be indulged against the waiver of
fundamental constitutional rights, and it is the State's
burden to show that a defendant voluntarily and intelligently
waived his fundamental right to the assistance of counsel.
Walton v. State, 2012 Ark. 336, at 8, 423 S.W.3d 56,
61.
We
first note that Akram has no cause of action in a Rule 37
proceeding to pursue a Faretta claim because his
argument here could have been raised on direct appeal.
See Oliver v. State, 323 Ark. 743, 918 S.W.3d 690
(1996). Akram alleges that his waiver of the right to be
represented by counsel was not valid because it was not
timely and was equivocal. However, his arguments that the
circuit court erred in allowing him to proceed pro se were
not raised to the trial court or on direct appeal.
Akram's claim that his waiver to proceed pro se was
invalid is not cognizable in Rule 37 proceedings because Rule
37 is not available to raise questions of trial error, even
questions of constitutional dimension. Lee v. State,
2017 Ark. 337, 532 S.W.3d 43. For our court to address such a
question raised by the appellant for the first time in Rule
37 proceedings, the appellant must show a fundamental error
sufficient to void the judgment. Id. Such is not the
case here; accordingly, we could summarily affirm.
However,
were we to address the merits of Akram's claim, we would
affirm the circuit court. Akram stated at the beginning of
the second day of trial that he no longer wanted his
appointed attorney to represent him and that he wanted the
trial ended and another attorney appointed. He made it clear
that if the circuit court would not appoint another attorney,
he wanted to represent himself. Akram went on to emphasize
that the trial concerned his freedom, and if he were to have
to serve time, he would want to do so "behind [his]
mouth[.]" The circuit court spent a considerable amount
of time explaining to Akram the dangers and pitfalls of
representing himself. Following a lengthy colloquy, the
circuit court once again asked Akram if he wanted to
represent himself. Akram then asked that he be allowed to
listen with defense counsel to an audio recording of the
9-1-1 call. The court granted his request, and recessed.
After
returning from recess, Akram indicated that he still wanted
to represent himself, and the circuit court again explained
the dangers and disadvantages of self-representation and
urged him to "consider permitting counsel to represent
you." Akram reiterated his desire to represent himself
and then executed a waiver of counsel. In his Rule 37
petition, Akram alleged that his waiver of counsel was
equivocal. We disagree. There was nothing ambiguous about
Akram's waiver of trial counsel and his clearly stated
desire to represent himself. Akram was asked multiple times
about waiving counsel and representing himself, and each time
he unequivocally stated that this was his desire. Akram
signed a waiver of counsel despite the repeated warnings of
the lower court.
Akram
also argues that his waiver of counsel was invalid because it
was untimely. The waiver of counsel made by a defendant must
be timely. E.g., Jarrett, 371 Ark. at 104,
263 S.W.3d at 541. However, the issue of timeliness is not
clearly defined. In Faretta, 422 U.S. at 835, the
defendant made his request weeks before trial. The Supreme
Court of the United States noted in a different case that
most courts have a requirement that a Faretta
request be made in a timely fashion. Martinez v. Ct. App.
Cal., Fourth Appellate Dist., 528 U.S. 152, 162 (2000).
A
request to represent oneself is often closely tied to
complaints about appointed defense counsel, and the right to
counsel cannot be used to "frustrate the inherent power
of the court to command an orderly, efficient, and effective
administration of justice." Jarrett, 371 Ark.
at 104- 05, 263 S.W.3d at 542. Thus, the logical reading of
the timeliness requirement is that it refers to the ability
of the circuit court to efficiently and effectively control
the docket and administer justice, and a request to waive
defense counsel can be denied as untimely if the circuit
court finds it would interfere with these aims. Id.
A
timely request to waive trial counsel can be reversible error
if not granted. See Pierce v. State, 362 Ark. 491,
504, 209 S.W.3d 364, 371 (2005). However, we also acknowledge
that there is no bright-line rule about the timeliness of a
Faretta request. Our standard of review is whether
the circuit court's finding that the waiver of rights was
knowingly and intelligently made was clearly ...