ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

ROBERT R. McINTOSH, SR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-466

FEBRUARY 7, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

FIRST DIVISION

[NO. CR 99-1525]

HONORABLE MARION HUMPHREY, CIRCUIT JUDGE

REVERSED AND REMANDED

A jury sitting in the Pulaski County Circuit Court convicted the appellant, Robert McIntosh, of third-degree domestic battery, fined him $500, and sentenced him to twelve months' imprisonment in the Pulaski County Jail. On appeal, appellant argues that the trial court erred by failing to obtain an intelligent and knowing waiver of appellant's right to counsel. The State concedes error, and we reverse and remand for a new trial.

In municipal court, appellant was represented by the public defender, and appellant was convicted of third-degree domestic battery. The municipal court sentenced him to thirty days in a community detention facility's weekend-work program. The municipal court granted appellant's motion to proceed in forma pauperis following his conviction, and appellant subsequently filed a notice of appeal to the Pulaski County Circuit Court.

At appellant's arraignment in circuit court, he agreed with the circuit judge that hewould proceed pro se. The trial court did not inquire about appellant's ability to have retained counsel, or advise him of his right to a court-appointed attorney if he was unable to afford one. At his omnibus hearing, appellant was present with counsel. However, that counsel was representing appellant on an unrelated charge. During appellant's jury trial, the circuit court did not discuss the subject of appellant's pro se status.

It is well established that an accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999). A defendant may proceed pro se in a criminal case when: (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. Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999).

Appellant argues on appeal that he did not knowingly and intelligently waive his constitutional right to counsel. In order to effectively waive the right to counsel, the accused must "be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Faretta v. California, 422 U.S. 806 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269 (1942)). To establish a voluntary and intelligent waiver, the trial judge must inform the accused that he is entitled to an attorney as a matter of law and question him to determine if he can afford to hire a lawyer. Mayo, supra. The trial judgemust also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney. Id. Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Bledsoe, supra. A specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant possessed such required knowledge from other sources, is required to establish the validity of a waiver. Id.

The record does not reflect that the trial court advised appellant of the dangers and disadvantages of proceeding without an attorney. Appellant was not advised about the substantive risks of proceeding without counsel. Appellant was not informed explicitly of his constitutional right to an attorney, nor was any inquiry made as to his ability to afford an attorney. We therefore conclude that appellant did not knowingly and intelligently waive his right to counsel.

Reversed and remanded for a new trial.

Hart and Jennings, JJ., agree.