Philyaw v. State, CR

• Decision Date: 24 February 1986
• Docket Number: No. CR,CR
• Citation: 704 S.W.2d 608,288 Ark. 237
• Parties: Charles W. PHILYAW, Appellant, v. STATE of Arkansas, Appellee. 85-167.
• Court: Arkansas Supreme Court

Page 608

704 S.W.2d 608

288 Ark. 237

Charles W. PHILYAW, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-167.

Supreme Court of Arkansas.

Feb. 24, 1986.

Greg Stephens, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Mary Beth Sudduth, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellant, Charles W. Philyaw, was convicted of attempted capital murder and sentenced to a term of 20 years imprisonment, to run consecutively with a prior life sentence. He sought postconviction relief pursuant to Ark.R.Crim.P. 37, which was denied by the trial court after a hearing. It is from that denial that this appeal is brought. Our jurisdiction is based on Sup.Ct.R. 29(1)(e).

Although the appellant raised numerous issues in his Rule 37 petition and in this appeal, we need only discuss the first point he raises, since we find it has merit. The appellant contends that the trial court erred when it refused to appoint an attorney to represent him during the trial. We find that the appellant was denied his constitutional right to assistance of counsel, and accordingly reverse the conviction.

The facts giving rise to this situation are as follows. The appellant was charged with aggravated robbery in Miller County, Arkansas, in connection with a May 11, 1981, robbery. He was also charged by amended information in Hempstead County, Arkansas, with attempted capital murder for allegedly pointing a gun at the arresting officer when he was apprehended for the robbery. The appellant was convicted in Miller County of the aggravated robbery charge and sentenced to life imprisonment. He was convicted in Hempstead County on the charge of attempted capital murder and sentenced to a consecutive 20 year sentence. An accomplice in the robbery, Fabian Costillo, was also convicted in Miller County. Circuit Judge John Goodson presided over both of appellant's trials and over Costillo's trial.

On November 9, 1981, the appellant filed a pro se notice of appeal and on April 14, 1982 he filed a pro se motion seeking a free transcript. The motion was denied and the appeal was never perfected. Later, a pro se motion for a belated appeal was denied by this court. The appellant then filed a petition in circuit court for relief under Rule 37. A different judge presided over the Rule 37 evidentiary hearing, since Judge Goodson was subpoenaed as a witness.

The appellant was represented in the Miller County robbery trial by retained counsel, Gene Harrelson. On October 5, 1981, the day set for trial in Hempstead County on the attempted capital murder charge, Mr. Harrelson was permitted to withdraw as appellant's attorney. The order permitting withdrawal of counsel states that the motion to withdraw was filed by Mr. Harrelson, with the "consent and approval" of the appellant, and that "from statements of counsel, statements of consent from Charles W. Philyaw, and other things and proof before the Court," the court found there was sufficient cause to allow the withdrawal and it was in the best interest of justice.

The appellant maintains that Mr. Harrelson withdrew because the appellant would not accept an arranged plea bargain and because he had not paid Mr. Harrelson. Mr. Harrelson disagreed that he quit because he had not been paid, but agreed that his withdrawal was based on the disagreement over the plea bargain. At the Rule 37 hearing, Mr. Harrelson testified that the idea of withdrawing originated with him and that he does not remember whether he told the appellant that he could have kept him as his attorney if he insisted. He also stated that the subject never came up about the consequences of his withdrawal and whether the appellant could get an appointed lawyer.

The following colloquy occurred during the October 5, hearing:

Court: Mr. Philyaw, how long do you think it will take you to obtain another counsel?

Defendant: A week, your Honor. I should think I could if I can get some phone calls.

Court: All right, sir. Mr. Harrelson, you will be permitted to withdraw. Mr. Philyaw, you will be given a week to obtain other counsel. I anticipate trying this case next week, here.

Defendant: Yes, sir.

Court: Now, whoever you employ, I recommend that you do it as hurriedly as you can because they will need some time to work on your case but any handicap that they may have will be your responsibility. Do you understand that?

On October 12, 1981, the case was called and the appellant appeared without counsel. In proceeding § before the trial, out of the hearing of the jury, the appellant explained that he was only allowed to use the telephone at night and he could not reach an attorney. Appellant also stated that his sister had talked to 16 lawyers for him who were supposed to call or come and see him, but none of them did. He further stated that he had sent his sister to the judge asking for an appointed attorney and the request was refused. The appellant then related the circumstances under which Mr. Harrelson quit--the lack of payment and appellant's refusal to plead guilty--and explained that he was told by Mr. Harrelson, "Well, either you plead guilty, or I withdraw as your attorney." The following then took place:

Court: Now, Mr. Philyaw, whether you--I assume that you knew or know that if an attorney is once in a case, they cannot be relieved unless done so by the judge, and if his--was on the strength of what you said to me, I certainly was not privy and have no business of knowing what you and your attorney's conversations were. Mr. Harrelson's not here to give his version of the matter now.

....

Defendant: --he quit. I did not relieve him because I wanted a different one or to make hardship on the court or anything.

....

Defendant: He was relieved and I agreed to it.

Court: --I don't know, and you may make your record, but I plan on trying this case Wednesday. I will appoint a lawyer to sit with you to answer any questions which you may ask, but not to represent you. You may represent yourself, sir.

Defendant: Sir, I don't know anything about courtroom procedures or anything.

Court: Well, this case was set for last week to try, and we had a jury here and we were ready to do it.

....

And at that time, you told me you could have a lawyer in a week. Today is the end of that week. I, at that time, told you that this case would be tried on the 13th. I plan to be as good as my word. You can represent yourself ... Now, your cohort tried this over ... in Miller County, and it didn't work there; it's not going to work here.

Defendant: I believe your Honor is wrong there. He fired his attorney; I did not.

....

When an attorney tells me "You owe me money. Do you have any money?" and I say, "No, I do not have the money," and then he says, "Then I'm not going to represent you."

Court: When his name is on this book, he is going to be here. He is going to function. And both of you all agreed because I asked you last week.

Defendant: And you refuse to appoint me a court-appointed attorney?

Court: Yes, sir. I'm not going to throw an attorney or a member of the Bar in here on two days notice to prepare a case such as this when you have had an attorney, you agreed that that attorney be relieved or discharged--whatever word you care for--and let the matter go ahead.

A jury was empaneled and the trial began two days later on October 14, 1981. During a pretrial conference, the judge restated his reasons for refusing to appoint an attorney for appellant. He noted that the appellant had retained counsel and allowed him to withdraw from the case; the appellant then appeared without an attorney on the day set for trial and without having filed an indigent affidavit; and the court appointed counsel to answer his legal questions during the trial. The appellant asked what an indigent affidavit was and, upon being told, asked if he could fill one out. The judge stated that he would let him fill one out, but that he would still have to proceed to trial that day. He then denied appellant's motion for a continuance to prepare the case with legal assistance. Once more, during the trial, the appellant asked for a court-appointed lawyer and the judge refused.

At the Rule 37 hearing, the trial judge testified that he did not appoint an attorney because: "I had the distinct feeling that this was an an effort or subterfuge on Mr. Philyaw's part to extend the period or to obtain continuance, and that is not the first time that has been tried to be pulled." The judge also stated that he does not know whether he ever inquired into Mr. Philyaw's financial status to find out if he could afford to hire a lawyer or whether he provided him with an affidavit of indigency. The judge stated that if he had appointed counsel and postponed the case, "Mr. Philyaw would have probably, in all likelihood, stated that he had ineffective assistance of counsel."

The attorney who was appointed to assist the appellant, testified he was appointed to "[sit] at counsel table during trial of the case and [answer] any law questions that the defendant might have."

We have long recognized that the sixth amendment to the United States Constitution guarantees an accused the right to have the assistance of counsel for his defense. This amendment is made obligatory upon the states by the due process clause of the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Slaughter & Scott v. State, 240 Ark. 471, 400 S.W.2d 267 (1966). Article 2, § 10 of the Arkansas Constitution specifically provides that an accused in a criminal prosecution shall enjoy the right to be heard by himself and his counsel. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). No sentence involving loss of liberty can be imposed where there has been a denial of counsel. White v. State, 277 Ark. 429, 642 S.W.2d 304 (1982). Furthermore, an accused is entitled to relief from a conviction whenever the proceedings indicate the unfairness of trial without...