Appeal 2

A Drew County man convicted last year of harassment and harassing communications has lost his appeal to the Arkansas Court of Appeals.

James Hall, who is currently running for a seat in the Arkansas House of Representatives, was sentenced last year to a year in the Drew County jail with all but 90 days suspended if he complies with certain conditions when he is released.

Hall appealed his conviction and sentence to the Arkansas Court of Appeals arguing that Circuit Court Judge Sam Pope violated his Sixth Amendment right to an attorney of his choice.

The Arkansas Court of Appeals upheld the conviction and sentence.

Hall was originally convicted in Drew County District Court where Omar Greene, a public defender, was appointed to represent him. He filed an appeal to the Drew County Circuit Court on September 27, 2013, but the appeal was dismissed due to Hall’s failure to appear.

In a pro se motion for reconsideration on August 21, 2014, Hall claimed that Greene had failed to communicate with him, return his telephone calls and communicate any court dates with him. He further alleged that he was still indigent and needed of a court-appointed attorney, that Greene was still “suitable”, and the public defender’s office was “conflicted” from representing him.

On Hall’s behalf, Greene filed a supplemental motion for reconsideration of the dismissal of Hall’s appeal. He argued that a failure to appear at a pretrial hearing is not proper grounds for dismissal of an appeal from city court to circuit court.

Circuit Judge Sam Pope granted Greene’s motion and set aside the dismissal and set Hall’s case for trial in Drew County Circuit Court.

On February 10, 2015, Hall left a telephone message on the circuit court’s answering machine saying he fired his court-appointed attorney, that he wanted another attorney, and he would be handling the matter pro se. Pope wrote Hall a letter telling him that he could not fire the court-appointed attorney and could not represent himself while he was represented by a court-appointed attorney.

The following day, Hall filed a pro se motion for immediate replacement of his court-appointed attorney, complaining that Greene failed to attend a January 20, 2015 hearing. He claimed that he could not reach his attorney, that his attorney was “incompetent or uncaring,” and that he wanted a new lawyer.

At a March 13, 2015 hearing when Hall complained that Greene had been late or missed several pretrial hearings, Pope reminded Hall that Greene had reinstated Hall’s appeal in circuit court. Hall agreed, but said Greene had reported to the circuit court that he was too tired to drive to the last hearing and that Greene had reported to Hall that he had been in the emergency room all night with his wife, which Hall claimed that he understood. Nevertheless, Hall said Greene “has not had any witness lists from me. We have not prepared for trial.”

Hall also complained that Greene should have argued at the district-court level that there was a conflict of interest among Hall, the district judge, and the 10th Judicial District Public Defender’s Office because of a blog that Hall had been writing. Pope explained to Hall that he could not create his own conflict and then complain about it. Hall continued his argument, complaining that he could not contact Greene. Pope said Hall had placed a notice of change of address in a civil-case file, while the circuit court was working from the criminal file, and thus, attempts at notification of his new contact information were not adequate.

Greene told the court:

Well, Judge, I’ve had trouble communicating with him too. You know, it’s a two-way street on that. And then I don’t recall him letting me know where he moved. Maybe he did. And he will call me, like, at a time when I’m in a trial or something. And then my secretary will take a message from him. But a lot of time[s] the messages are just, they’re, just to be honest, they’re just bizarre, I mean, something about somebody threatened him. You know, I wasn’t appointed to be his body guard, Your Honor. I mean, what am I supposed to do? Drive down to Drew County and protect him or something. And then on the, where the Court dismissed his appeal, I found a case that said, that his appeal couldn’t be dismissed unless he didn’t show up for trial. Just not showing up for a pre-trial hearing wasn’t sufficient. And then he had filed a bunch of pre-trial—he had filed a bunch of pro se motions which didn’t cite anything that helped him. It just ranted on about a bunch of stuff.

Pope asked Greene whether he had represented Hall in the district court. Greene said he had.

“And we won on, I don’t know how many counts, you know,” Greene said. “And, then, so we filed notice and the rest the Court knows about. You know, I’ve tried to represent Mr. Hall to the best of my ability. I did do some effective research on the issue of his appeal being dismissed. You know, he is one of the more difficult individuals I’ve ever represented, including people that are facing the death penalty. You know, so, if he wants me to not represent him anymore….”

Pope then denied Hall’s motion.

A Drew County jury convicted Hall on April 22, 2015 of one count of harassment and two counts of harassing communications and sentenced him to a year in the county jail with all but 90 days suspended.

Hall appealed to the Arkansas Court of Appeals, arguing that his Sixth Amendment right to counsel of his choice was violated by the circuit court’s ruling.

Citing several court cases, the Arkansas Court of Appeals said that “while constitutionally guaranteed, the right to counsel of one’s choosing is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice…. Once competent counsel is obtained, any request for a change in counsel must be considered in the context of the public’s interest in the prompt dispensation of justice…. The decision whether to grant or deny a motion to allow counsel to withdraw is a matter within the sound discretion of the trial court, whose decision we will affirm in the absence of an abuse of discretion…. In addition, a defendant must show that prejudice resulted from the denial of the motion to withdraw…. A court is not required to allow a change in attorneys shortly before a trial date simply because there are differences or disagreements between attorney and client….”

In his argument, Hall acknowledged that Greene filed a supplemental motion and that the circuit court reinstated his appeal, but complained that Greene was late for the hearing and failed to communicate with him. He contends that the record is clear that he had lost confidence in his attorney and that “the attorney-client relationship was in peril.”

Hall claimed that his situation cannot be characterized as a last-minute attempt to delay the trial, as the attorney-client relationship had been deteriorating for months. Further, when balancing his request for a change in counsel against the public’s interest in the prompt dispensation of justice, Hall maintains that the charges against him were all misdemeanors, and a new attorney could have been appointed and prepared by the trial date.

Hall cited a case in which the the Arkansas Supreme Court reversed the trial court’s removal of the defendant’s appointed attorney, holding that when a trial court terminates the representation of an attorney over the defendant’s objection under circumstances which do not justify the lawyer’s removal and which are not necessary for the efficient administration of justice, a violation of the defendant’s right to particular counsel occurs.

Hall contends that the case stands for the importance of the attorney-client relationship, even when the client is indigent.

He acknowledged that, instead of his attorney being removed over his objection as was done in the case he cited, the circuit court refused to replace his court-appointed attorney. Nevertheless, Hall claims that the fact that he is indigent and that he had a court-appointed attorney should not determine whether a new attorney may be appointed.

The State maintained that once Hall accepted representation by an attorney, the fact that he was not satisfied with his attorney does not entitle him to a different attorney. Further, the State asserted that appointment of new counsel would cause a delay in justice.

The Arkansas Court of Appeals found that Pope did not abuse his discretion in denying Hall’s motion for a new attorney.

“Because Greene had represented Hall at the district court as well as the circuit court, he was intimately familiar with Hall’s case,” Chief Judge Robert J. Gladwin wrote. “Greene had successfully reinstated Hall’s case in the circuit court, and he had been Hall’s counsel for nearly two years when Hall requested his removal. The circuit court considered these facts, questioned Hall and Greene regarding the circumstances of Hall’s complaints, and determined that Hall was not entitled to new counsel. Further, Hall failed to show that he suffered prejudice as a result of the circuit court’s denial of his motion.”