The Arkansas Court of Appeals recently upheld the rape and incest convictions of a Desha County man sentenced last year to 26 years in prison.

Adam Patton, 39, appealed his February 2018 conviction arguing that Circuit Judge Sam Pope violated his Sixth Amendment right to assistance of counsel.

While released on bond on the rape and incest charges, Patton won $1 million in the Arkansas Lottery, netting $680,000. He says he had spent his lottery winnings prior to trial and could not afford an attorney.

Appealing his conviction, Patton said he did not have an attorney, was never given the opportunity to execute an affidavit of indigency for the court’s review, was not appointed an attorney, and did not waive his right to an attorney.

In September, 2017, prior to trial, Patton’s attorney filed a motion to withdraw from the case because Patton failed to contact him. When Circuit Judge Sam Pope told Patton he was inclined to grant the motion, Patton asked Pope to give him time to find another attorney. Pope granted the attorney’s request to withdraw and told Patton he needed an attorney within two months.

At a January 2018 pretrial hearing, Patton told Pope he had not hired an attorney.

The following conversation between Pope and Patton took place at the January 2018 pretrial hearing:

POPE: Mr. Patton is here for pretrial. The State has charged him with the offenses of rape, which allegedly occurred between 2012 and 2016. He was formerly represented by Mr. Robinson, his firm, which filed a motion to withdraw which I granted in September. He was to hire another lawyer. Mr. Patton, have you done that?

PATTON: No, sir, Your Honor. I haven’t, I guess, found somebody that we could come to an agreement on, moneywise, financially. I was here today to ask you for, if maybe the courts would appoint me one, to say the evidence and all that the courts have against me, I guess I’m unprepared. You know, I have spoke to a few different lawyers. We just can’t come to an agreement, Your Honor, so I’m kind of at your mercy.

POPE: What is your income?

PATTON: Right now, Your Honor, not a lot. You know, I ran across a little stroke of luck a little while back with the lottery, and all that, I’ve been living off of, me and my family. As far as income weekly, there isn’t any.

POPE: How much money do you have left from your winnings?

PATTON: Well, there was remodeling of my mother’s home, vehicles for my wife and my oldest son, one for me, one for my mother. So…

POPE: You’re not indigent. I’m not going to appoint you a lawyer. It’s clear to me that you are trying to take advantage of the system. Now, you’re going to trial in two weeks with or without a lawyer. I don’t care.

POPE: Well, I’m not going to appoint him counsel. He is not indigent. And that’s what I, the Constitution requires is me to appoint indigent counsel. Now, if he wants to go to trial without a lawyer, he’s made that choice as far as I’m concerned. Just his statements regarding his disposition of his lottery winnings is clear to me that he had not taken care of his personal business and he’s putting himself in this position. I so find. So, we’ll just go from there. You’re ordered back to court for jury trial February 6th—we’re going to set that date right now—at 8:30 a.m. You can be dismissed until then.

On February 6, before Patton’s trial got underway, 10th Judicial District Deputy Prosecutor Crews Puryear asked that since Patton was deemed not to be indigent that a record be made that he won the lottery, when he won it, and how much he won. “I don’t think the record reflects that,” Puryear explained. “And I would ask that the court would inquire as to that so that the record would reflect that, that winnings and earnings.”

PATTON: I believe it was around the first of March or so, Your Honor. It was a little over six hundred and eighty thousand ($680,000) is what I left there with.

POPE: Okay. So around March 1, of 2017?

PATTON: Yes, sir.

POPE: You received how much?

PATTON: Six hundred and eighty thousand dollars ($680,000) is what I deposited into an account.

POPE: From the Arkansas Lottery? That was after taxes?

PATTON: Yes, sir.

POPE: Okay.

PURYEAR: And that was while this case was pending?

POPE: Yes.

PATTON: While I was out on bond.

POPE: Of course, you’ve had a lawyer in this case before.

PATTON: Yes, sir. And, Your Honor, I did search for counsel, you know. And, like I say, everybody has heard about the lottery and since they know, you know, the number they threw out there is just astronomical and I couldn’t you know, I couldn’t justify paying somebody those five digits, you know, numbers to talk about something they had no idea. I mean, I understand they are more knowledgeable about, your, the way things go in here. But as far as what me and my son went through…

POPE: Well, you’ve got some serious charges, Mr. Patton.

PATTON: Yes, sir.

POPE: I tried to talk to you about this and I’ve tried to encourage you to get your own lawyer. I realize that the fact of your lottery winnings may be knowledge, public knowledge, so that, you know, maybe people try to gouge you or whatever. I don’t know. But it would seem to me that if you look long and hard enough, you could find somebody to represent you for a reasonable sum of money. Because of the serious nature of the charges…

PATTON: Yes, sir.

POPE: . . . you might be getting quoted some high fees. I don’t know. I don’t know all that’s involved in it. But you certainly have resources to hire counsel and that’s the reason I ruled the way I did.

Patton proceeded to trial, representing himself.

The state called four witnesses, Patton’s wife, four police officers and the victim. Patton and his mother testified for the defense. The jury subsequently found Patton guilty of two counts of rape and two counts of incest.

On appeal, Patton argued that Pope violated his Sixth Amendment right to assistance of counsel when Pope granted his attorney’s motion to withdraw before assuring that Patton had another attorney, had been appointed another attorney or waived his right to an attorney. Patton also argued that Arkansas law does not allow a person to be tried without an attorney unless he unless he voluntarily and intelligently waives that right.

Patton contends that Pope twice made a finding that he was not indigent and declined to appoint an attorney to represent him. He contends that he wanted an attorney and did not waive that right. He says he was never given the opportunity to execute an affidavit of indigency for the court’s review and that he had spent his lottery winnings and did not have any income.

Patton says even if a factual basis had been developed for declining to find him indigent, Pope deprived him of his right to an attorney because a voluntary and intelligent waiver was not established on the record.

The state, however, contended that Patton’s case was not a waiver case but a forfeiture case and Pope did not abuse his discretion because Patton had abundant means and time to hire an attorney but decided not to do so.

“We agree that while there is not a voluntary and intelligent waiver on the record, (Patton) forfeited his right to counsel,” the Arkansas Court of Appeals said in its opinion upholding Patton’s conviction.

“The State claims that (Patton’s) refusal to hire counsel despite abundant means and opportunity to do so frustrated the orderly administration of justice…,” the Court wrote. “(Patton) was free on bond during the relevant time period. Further, (Patton) had won the lottery, taking home $680,000 during the pendency of the case. He established on the record that he did not want to hire a lawyer because he could not justify spending the money. Thus, (Pope) did not abuse its discretion in determining that (Patton) preferred not to hire a lawyer. Accordingly, (Pope’s) ruling that (Patton) forfeited his right to counsel by refusing to hire counsel for his defense was not an abuse of discretion.”

Concurring with the majority opinion, Judge David M. Glover wrote that the case is a forfeiture issue and can be affirmed as such. However, Glover said he has “very strong concerns” about how Pope handled Patton’s Sixth Amendment right to assistance of counsel.

“No member of the bar or judiciary should be under an illusion that the manner in which this case played out is to be considered the norm in dealing with such an important right as assistance of counsel,” Glover wrote.

Glover said Pope could have avoided the issue had he more strictly followed the law. He said Pope should not have allowed Patton’s attorney to withdraw until Patton had either retained another attorney, showed that he was indigent and another attorney appointed, or voluntarily and intelligently waived his right to an attorney.

“The circuit court glossed over all these alternatives,” Glover wrote. “Six months before trial, even though Patton asked the court to give him time to find another lawyer…, he was not informed he could also retain his present counsel, even though the attorney desired to withdraw. A defendant must be informed that he can retain his paid attorney even if the attorney desires to withdraw; without that knowledge, a defendant’s act of releasing his paid counsel cannot be viewed as a waiver of a right to counsel.”

Glover said Pope exhibited a cavalier attitude when he stated in open court, “‘It’s clear to me that you are trying to take advantage of the system. Now, you’re going to trial in two weeks with or without a lawyer. I don’t care.'”

Pope made the statement after Patton requested that he be appointed an attorney.

“By then, it was common knowledge that Patton had won the lottery, but the circuit court did not provide Patton with an affidavit of indigency to complete,” Glover said. “Though Patton likely had funds with which to retain counsel, dedicating a short amount of time to allow Patton to complete his financial information would have provided the circuit court a more complete financial picture. There was no indication in the record that Patton was disruptive or rude to the circuit court during any proceedings. (Pope) concluded, ‘Now, if he wants to go to trial without a lawyer, he’s made that choice as far as I’m concerned.'”

To Pope’s credit, Glover said, Pope, on the day of trial, told Patton he had serious charges and tried to encourage him to hire an a lawyer; and while it was public knowledge about the lottery and maybe people were trying to gouge him, if he had looked long and hard enough, he could find someone to represent him for a reasonable sum.

Pope told Patton he had resources to hire an attorney and that was why he ruled as he did.

Patton then proceeded to trial, representing himself.

Glover said Patton was seemingly unaware of the dangers of self-representation, and those dangers were not specifically pointed out to him by Pope.

Though Patton was charged with deplorable sexual encounters over a substantial period of time, he had never been criminally charged before and was unfamiliar with the criminal system, Glover said.

Patton, however, appeared to have ample remaining lottery winnings with which to hire an attorney. It is equally obvious Patton did not want to pay his attorney “five digits” of his funds to hire an attorney to represent him, which is why the case was affirmed as a forfeiture case, Glover said.

Though he concurred with the majority, Glover said he was writing simply to point out that Pope did not explain to Patton the dangers of self-representation.

“Forget the lottery winnings! Under the circumstances established here, I believe it is a slippery slope to begin denying a defendant counsel in a criminal trial and forcing him to proceed pro se without requiring an affidavit of indigency or at least attempting to obtain a knowing and intelligent waiver of counsel,” Glover said. “The constitutional requirement is clear; that duty lies with the circuit court. We must do better than this.”

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