DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-1317

June 13, 2001

WANDA CALLOWAY AN APPEAL FROM JEFFERSON

APPELLANT COUNTY CIRCUIT COURT

[A2000-17-1]

V. HON. JOHN CONE, SPECIAL JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wanda Calloway appeals from her conviction for harassing communications, which is a misdemeanor punishable by a sentence not to exceed one year and a fine not to exceed $1,000. Her sole argument is that because the offense with which she was charged was punishable by incarceration, the trial court erred in allowing her to represent herself without first determining whether she made a voluntary and knowing waiver of her Sixth Amendment right to counsel. Because appellant was not sentenced to a term of incarceration, we must affirm.

Appellant was charged with one count of harassing communications and was tried in municipal court. She was convicted and was ordered to pay a $1,000 fine, with $500 suspended. She appealed to the circuit court. The circuit court made no inquiry as to whether appellant was competent to represent herself at trial. The court simply determined that she waived her right to a jury trial, that she was ready to proceed, and allowed her torepresent herself. Appellant was found guilty, and was again sentenced to pay a $1,000 fine, with $500 suspended. She then filed an appeal with this court and asserts that a person who is tried for an offense that may result in an incarceration has an absolute right to counsel.

An accused has a constitutional right to represent himself and to make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel. See 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. See Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999). 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 an attorney. See id. The trial judge must also explain the advantages of having the assistance of an attorney during the trial as well as the disadvantages of not having an attorney. See id. The trial court in this case failed to make the necessary inquiries and failed to inform appellant of the dangers of proceeding pro se. Appellant argues that because the offense with which she was charged was punishable by imprisonment, the trial court violated her right to counsel by not determining whether she was capable of representing herself.

We hold that the trial court's failure to make the determination regarding appellant's ability to represent herself was not clearly erroneous because appellant was not sentenced to incarceration. This general rule under federal case law is that an indigent does not havea Sixth Amendment right to counsel in a misdemeanor case unless there is an actual sentence of imprisonment imposed. See Scott v. Illinois, 440 U.S. 367 (1979). In addition, although not cited by either party, Arkansas Rule of Criminal Procedure 8.2(b) provides that:

whenever an indigent accused is charged with a criminal offense and, upon being brought before any court, does not knowingly and intelligently waive the appointment of counsel to represent him, the court shall appoint counsel to represent him unless he is charged with a misdemeanor and the court has determined that under no circumstances will imprisonment be imposed as part of the punishment if found guilty.

Although our appellate courts have never interpreted this rule, a straightforward reading of this rule implies that where the trial court fails to appoint counsel, it must decide at the outset of the proceeding that imprisonment will not be imposed if the defendant is found guilty. However, under Scott v. Illinois, supra, and other Arkansas cases, our courts have not required the trial court to make the determination that no prison sentence will be imposed at the outset of the proceedings. Rather, these other authorities stand for the proposition that if a defendant is charged with a misdemeanor, it is not error if the court fails to appoint counsel to represent him as long as the trial court does not subsequently impose a prison sentence. See Worthington v. State, 301 Ark. 354, 786 S.W.2d 117 (1990); Alexander v. State, 258 Ark. 633, 527 S.W.2d 927 (1975).

Our appellate courts have only cited to Rule 8.2(b) in one case, Duty v. State, 45 Ark. App. 1, 871 S.W.2d 400 (1994). Even in Duty, however, the trial court did not determine at the outset that no jail time would be imposed. Rather, just before the State rested, the State agreed during trial to waive jail time. However, the Duty court found that the trial court did not err in failing to appoint counsel because appellant was not sentenced toincarceration. Therefore, pursuant to these authorities, we hold that the trial court did not err because it did not impose a sentence of imprisonment.

Appellant was convicted of harassing communications under Arkansas Code Annotated section 5-71-209 (Repl. 1997), which is a Class A misdemeanor punishable by a sentence not to exceed one year and a fine not to exceed $1,000. See Ark. Code Ann. §§ 5-4-201 and 5-4- 401 (Repl. 1997). In Scott v. Illinois, supra, the defendant was convicted of theft and fined $50 under an Illinois statute that set the maximum penalty for such an offense to a $500 fine or one year in jail. The defendant in Scott, like appellant in this case, argued that federal constitutional law required the State to provide counsel whenever imprisonment is an authorized penalty, even if no prison sentence is imposed. 440 U.S. at 368. The Supreme Court rejected this argument, stating that "actual imprisonment" is "the line defining the constitutional right to appointment of counsel." Id. at 373. The Scott court held that no indigent criminal defendant could be sentenced to a term of imprisonment unless the State affords him the right to assistance of counsel. Id. at 374.

In line with Scott v. Illinois, supra, our supreme court stated in Alexander v. State, supra, that absent a knowing and intelligent waiver, no indigent person may be imprisoned for any offense, unless he is represented by counsel at trial, but also stated that the court need not consider the requirements of the Sixth Amendment with regard to the right to counsel where the defendant does not suffer the loss of liberty. 258 Ark. at 635, 527 S.W.2d at 927 (citing Argersinger v. Hamlin, 407 U.S. 25 (1972)).

Here, even though the offense was punishable by a jail term, the trial court imposed only a fine; appellant was not sentenced to incarceration. In sum, her right to counsel wasnot violated for at least two reasons: 1) there was no allegation and no showing that she was indigent; and 2) there is no absolute right to counsel for offenses that may, but do not, result in incarceration. The burden of establishing indigency is on the party claiming that status. See Hall v. State, 305 Ark. 193, 805 S.W.2d 651 (1991). Appellant did not meet this burden because she failed to allege and offer proof below that she was indigent. However, even if we assume that appellant was indigent, the trial court did not err in allowing her to proceed pro se because she was not sentenced to serve a jail term. See Duty v. State, supra (holding that where the court assumed the defendant was indigent, the trial court did not err in not providing an attorney where he was not sentenced to a jail term). Pursuant to the foregoing authorities, we must hold that appellant was not denied her right to counsel upon conviction of a misdemeanor for which she received no jail sentence.1

Affirmed.

Vaught, J., agrees.

Roaf, J., concurs.

Andree Layton Roaf, Judge, concurring. I concur in the result reached by the majority, but only because the appellant does not argue that Ark. R. Crim. P. 8.2(b) provides for greater rights than does the Sixth Amendment or that she is an indigent accused entitled to such protection.

Rule 8.2(b) provides that the court shall appoint counsel to represent an indigent accused "unless he is charged with a misdemeanor and the court has determined that under no circumstances will imprisonment be imposed as part of the punishment if found guilty." (Emphasis added.) The rule is forward-looking, as opposed to the holding in Scott v. Illinois, 440 U.S. 367 (1979), that an indigent does not have a Sixth Amendment right to counsel in a misdemeanor case unless there is an actual sentence of imprisonment. None of the Arkansas cases relied upon by the majority squarely address this issue. Worthington v. State, 301 Ark. 354, 786 S.W.2d 117 (1990), involved a motion for rule on the clerk where the appellant received a two-day sentence. In Alexander v. State, 258 Ark. 633, 527 S.W.2d 927 (1975), our supreme court held that an uncounseled municipal court conviction could not be used for purposes of revoking a suspended sentence. Only Duty v. State, 45 Ark. App. 1, 871 S.W.2d 400 (1994), even mentions Rule 8.2(b), however, it also relies on Scott v. Illinois. No Arkansas appellate case has directly addressed the question of whether Rule 8.2(b) affords greater protection than our federal constitution provides.

Our supreme court has stated that it views the right to counsel provided by Article 2, section 10 of the Arkansas Constitution as guaranteeing the same right conferred by theSixth Amendment. Olive v. State, 340 Ark. 343, 10 S.W.3d 443 (2000); Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998). Section 10 provides in pertinent part that "In all criminal prosecutions the accused shall enjoy the right...to be heard by himself and his counsel." The Sixth Amendment to the U.S. Constitution similarly provides that "In all criminal prosecutions the accused shall enjoy the right...to have the assistance of counsel for his defense."

In Olive v. State, supra, the question presented was whether the Arkansas Constitution provides greater rights to an accused than does the Sixth Amendment in the context of custodial interrogations. Our supreme court stated that it has "frequently relied on the Supreme Court's decisions in determining the scope of the right to counsel during custodial interrogation." Id. It may well be that it will likewise look to federal law in resolving the question of the right to counsel in misdemeanor prosecutions. However, until this occurs, the holding of Scott v. Illinois, supra, is at odds with the plain language of Rule 8.2(b).

1 Although we affirm, we note that the Sixth Amendment's prophylactic rule is designed to ensure voluntary, knowing, and intelligent waivers of the right to counsel. See Michigan v. Harvey, 494 U.S. 344 (1990). If the purpose of the right to counsel is merely to prevent the imposition of a prison sentence where a defendant is convicted of a misdemeanor without representation, then we would agree our case law and applicable rules of criminal procedure adequately fulfill that purpose. However, superimposed upon that purpose is the purpose to prevent an adjudication of guilt without proper procedural safeguards. Without an adjudication of guilt, the trial court never imposes sentence.

Instead of protecting the defendant's right to have representation at the outset of the proceedings, current law insulates a trial judge who, without making the proper inquiries and disclosures, decides not to impose a prison sentence after allowing a defendant accused of a misdemeanor to proceed pro se. Where the trial judge fails to make the proper inquiries and disclosures at the outset, our rules and case law purport to allow him to "cure" his error on the back end by not imposing a sentence of imprisonment. That "cure" keeps an accused from being jailed after conviction. It does not mean the accused was adequately represented before conviction, nor does it mean the accused knowingly and intelligently waived the right to competent legal counsel. Thus, current law permits one to stand in jeopardy of being tried, convicted and fined up to $1000-the misdemeanor maximum-without making an informed decision about the advantages of legal representation.