Fisher v. State

• Decision Date: 16 November 2005
• Docket Number: No. CR 04-1084.,CR 04-1084.
• Citation: 217 S.W.3d 117
• Parties: Gregory FISHER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

217 S.W.3d 117

Gregory FISHER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 04-1084.

Supreme Court of Arkansas.

November 16, 2005.

James P. Clovette, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.

ANNABELLE CLINTON IMBER, Justice.

This case is an appeal of a circuit court's denial of postconviction relief pursuant to Ark. R.Crim. P. 37 (2005). The constitutional question before us is whether a criminal defendant was denied his Sixth Amendment right to counsel solely because his nonresident lawyer, who was licensed to practice law in another state, failed to secure pro hac vice admission to the Arkansas court trying his criminal case. We hold that such a circumstance does not constitute a per se violation of the Sixth Amendment right to counsel.

Appellant Gregory Fisher was convicted of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. He was sentenced to 480 and 180 months' imprisonment, to be served consecutively, and the court also imposed a fine of $150,000. At trial, Mr. Fisher and his co-defendant, Kevin McKenzie, were both represented by Charles E. Waldman. Mr. Waldman is a licensed attorney in the State of Tennessee, but not in the State of Arkansas. On direct appeal, the Arkansas Court of Appeals affirmed Mr. Fisher's conviction. Fisher v. State, 84 Ark.App. 318, 139 S.W.3d 815 (2004). Following his conviction and direct appeal, Mr. Fisher filed a petition for postconviction relief pursuant to Ark. R.Crim. P. 37. In his petition, Mr. Fisher argued that because Mr. Waldman was never licensed to practice law in Arkansas, he was denied his Sixth Amendment right to counsel. The circuit court concluded that, among other things, Mr. Waldman had associated with an attorney licensed to practice law in Arkansas, and, thus, Mr. Fisher was not denied his constitutional right to counsel. From the order denying his Rule 37 petition for postconviction relief, Mr. Fisher now appeals.

Because the instant case is an appeal of a circuit court's denial of postconviction relief, we have jurisdiction pursuant to Ark. R.Crim. P. 37 and Ark. Sup.Ct. R. 1-2(a)(8) (2005). We have repeatedly held that we will not reverse the denial of' postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Jones v. State, 340 Ark. 1, 4-5, 8 S.W.3d 482, 484 (2000)(citing Norman v. State, 339 Ark. 54, 2 S.W.3d 771 (1999) (per curiam) and State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999)).

Mr. Fisher's sole point on appeal is that he was denied his constitutional right to counsel because his trial counsel, Charles E. Waldman, was not licensed to practice law in Arkansas, and, thus, Mr. Waldman was not able to effectively represent him. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have assistance of counsel for his defense." U.S. Const., amend VI. This constitutional provision provides those accused with the right to effective assistance of counsel at every critical stage of a criminal proceeding. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As a general rule, to prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Strickland v. Washington, supra; Jones v. State, supra. This requires a showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the petitioner by the Sixth Amendment. Id. Petitioner must also show that the deficient performance prejudiced the defense; this requires a showing that counsel's error was so serious as to deprive the petitioner of a fair trial. Id. On appeal, the court indulges in a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id.

Notwithstanding the Supreme Court's two-pronged analysis in Strickland v. Washington, supra, Mr. Fisher contends on appeal that his counsel's performance was per se unconstitutional because trial counsel was not authorized to practice law in Arkansas. In the alternative, Mr. Fisher contends that trial counsel was also ineffective under the Strickland test because he failed to properly preserve the issue of sufficiency of the evidence for appellate review.

1. Per Se Ineffective Assistance of Counsel

In Arkansas, nonresident lawyers are permitted by comity and courtesy to appear pro hac vice in our courts. Specifically, Rule XIV of the Arkansas Rules Governing Admission to the Bar states:

A lawyer residing outside the State of Arkansas who has been admitted to practice law in the Supreme Court of the United States or in the United States Court of Appeals for the circuit in which the attorney resides or in the Supreme Court or the highest appellate court of the state of the attorney's residence, and who is in good standing in the court of the attorney's admission, will be permitted by comity and by courtesy to appear, file pleadings and conduct the trial of cases in all courts of the State of Arkansas. However, any trial court may require such nonresident attorney to associate a lawyer residing and admitted to practice in the State of Arkansas upon whom notices may be served and may also require that the Arkansas lawyer associated be responsible to the court in which the case is pending for the progress of the case, insofar as the interest represented by the Arkansas lawyer and the nonresident lawyer is concerned.

Unless the State in which the said nonresident lawyer resides likewise accords similar comity and courtesy to Arkansas lawyers who may desire to appear and conduct cases in the courts of that State, this privilege will not be extended to such nonresident lawyer.

A nonresident lawyer will not be permitted to engage in any case in an Arkansas court unless a written statement is filed with the court in which the nonresident lawyer submits to all disciplinary procedures applicable to Arkansas lawyers.

Rule XIV of the Arkansas Rules Governing Admission to the Bar (2005). As noted in the State's brief, the rule provides that a trial court may require the nonresident lawyer to associate an Arkansas lawyer and the trial court may require that the Arkansas lawyer be responsible to the court for the pending case. In contrast to such discretionary provisions, the rule mandates that the nonresident lawyer be afforded the privilege to appear pro hac vice in Arkansas courts if and only if (1) the State where he or she is licensed accords similar comity and courtesy to Arkansas lawyers and (2) the lawyer submits a written statement attesting that he or she will abide by all disciplinary procedures applicable to Arkansas lawyers. The drafters of Rule XIV clearly made a distinction between permissive requirements—what a lawyer may be required to do—and mandatory requirements—what a lawyer must do—in order to appear pro hac vice by comity.¹ In other words, while the trial court may have discretion in requiring the nonresident lawyer to associate with an Arkansas lawyer, no such discretion exists with regard to the "similar comity" provision and the requirement that the nonresident lawyer file a written statement attesting that he or she will submit to all disciplinary procedures applicable to Arkansas lawyers.

In this case, as noted earlier, Mr. Waldman was a licensed lawyer in the State of Tennessee, but he was not licensed in the State of Arkansas. There was testimony that Mr. Waldman had prepared a motion to be admitted pro hac vice, but the circuit court instructed him that such a motion was unnecessary. The record, however, does not indicate that a written statement was ever filed in accordance with Rule XIV, by which Mr. Waldman attested that he would submit to the disciplinary procedures applicable to Arkansas lawyers. Regardless of the circuit court's statement to the contrary, such a written statement is mandatory under Rule XIV. Consequently, because of Mr. Waldman's noncompliance with Rule XIV's written-statement requirement, we must conclude that Mr. Fisher's trial counsel was not authorized to appear pro hac vice in this State at the time of the trial.

At the outset, it is important to note that our court has not heretofore considered the question of what circumstances, if any, constitute a per se violation of the Sixth Amendment. The test under the Strickland analysis involves an examination of specific acts and omissions on the part of counsel that are alleged to constitute deficient performance resulting in prejudice to the defense. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). The Nebraska Supreme Court has nonetheless noted that some courts "have held that in certain circumstances, legal representation by a particular individual constitutes a per se violation of a criminal defendant's Sixth Amendment right to the effective assistance of counsel, regardless of the particulars of such representation." State v. McCroy, 259 Neb. 709, 713, 613 N.W.2d 1, 4-5 (2000).

Generally, other jurisdictions have held that there is a per se violation of the Sixth Amendment when the person posing as a lawyer was never properly licensed to practice law. For instance, in Solina v. United States, 709 F.2d 160 (2d Cir. 1983), the defendant was represented by counsel who had graduated from an accredited law school but had never successfully passed the bar exam. Consequently, he had never been admitted to the bar. Under those circumstances, the Second Circuit Court of Appeals held that this constituted a per se violation of the defendant's Sixth Amendment right to "assistance of counsel." Id. at 167. Likewise, in U.S. v. Novak, 903 F.2d 883 (2d Cir. 1990), the federal appellate court followed a similar rationale in holding that representation by a lawyer who had been admitted to the bar only on the basis of false...