Cite as 2019 Ark. App. 447 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.03 14:02:17 DIVISION II -05'00' No. CR-19-191 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 16, 2019 JAMAL AKRAM APPELLANT APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT V. [NO. 47BCR-16-94]
HONORABLE RALPH WILSON, JR., STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED
RAYMOND R. ABRAMSON, Judge
Appellant Jamal Akram was convicted by a Mississippi County jury of first-degree
murder and was sentenced as a habitual offender to sixty years’ imprisonment. This court
upheld his conviction in Akram v. State, 2018 Ark. App. 504, 560 S.W.3d 509. Akram filed
a Rule 37 petition challenging issues concerning his waiver of counsel at trial as well as a
claim of ineffective assistance of appellate counsel. On January 14, 2019, the circuit court
denied his petition. Akram now appeals the circuit court’s denial of his petition. On appeal,
he argues that his waiver of trial counsel was invalid because his request to represent himself
was equivocal and untimely, and he had ineffective assistance of appellate counsel on direct
appeal. Neither point has merit, and we affirm.
Akram’s conviction stems from the beating death of his live-in girlfriend, whose body
was found in their home on March 18, 2016. Prior to the start of the second day of trial, Akram asked to represent himself. After the circuit court delivered a lengthy lecture about
the dangers of self-representation and a thorough inquiry into Akram’s desire to represent
himself, Akram signed a waiver of counsel and was allowed to represent himself.
When reviewing a circuit court’s ruling on a Rule 37 petition, we will not reverse
the circuit court’s decision granting or denying postconviction relief unless it is clearly
erroneous. E.g., Nichols v. State, 2017 Ark. 129, at 2, 517 S.W.3d 404, 407. A decision is
clearly erroneous if, even with evidence to support the decision, this court “is left with the
definite and firm conviction that a mistake has been committed.” Id.
A defendant has a constitutional right to self-representation. Faretta v. California, 422
U.S. 806 (1975). This necessarily requires the waiver of the right to be represented by
counsel, which is a personal right that may be waived at the pretrial stage or at trial. E.g.,
Jarrett v. State, 371 Ark. 100, 104, 263 S.W.3d 538, 542 (2007). A criminal defendant may
invoke his right to defend himself pro se if “(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.” Id., 263 S.W.3d at 541. Every reasonable
presumption must be indulged against the waiver of fundamental constitutional rights, and
it is the State’s burden to show that a defendant voluntarily and intelligently waived his
fundamental right to the assistance of counsel. Walton v. State, 2012 Ark. 336, at 8, 423
S.W.3d 56, 61.
We first note that Akram has no cause of action in a Rule 37 proceeding to pursue
a Faretta claim because his argument here could have been raised on direct appeal. See Oliver
2 v. State, 323 Ark. 743, 918 S.W.3d 690 (1996). Akram alleges that his waiver of the right
to be represented by counsel was not valid because it was not timely and was equivocal.
However, his arguments that the circuit court erred in allowing him to proceed pro se were
not raised to the trial court or on direct appeal. Akram’s claim that his waiver to proceed
pro se was invalid is not cognizable in Rule 37 proceedings because Rule 37 is not available
to raise questions of trial error, even questions of constitutional dimension. Lee v. State, 2017
Ark. 337, 532 S.W.3d 43. For our court to address such a question raised by the appellant
for the first time in Rule 37 proceedings, the appellant must show a fundamental error
sufficient to void the judgment. Id. Such is not the case here; accordingly, we could
summarily affirm.
However, were we to address the merits of Akram’s claim, we would affirm the
circuit court. Akram stated at the beginning of the second day of trial that he no longer
wanted his appointed attorney to represent him and that he wanted the trial ended and
another attorney appointed. He made it clear that if the circuit court would not appoint
another attorney, he wanted to represent himself. Akram went on to emphasize that the
trial concerned his freedom, and if he were to have to serve time, he would want to do so
“behind [his] mouth[.]” The circuit court spent a considerable amount of time explaining
to Akram the dangers and pitfalls of representing himself. Following a lengthy colloquy, the
circuit court once again asked Akram if he wanted to represent himself. Akram then asked
that he be allowed to listen with defense counsel to an audio recording of the 9-1-1 call.
The court granted his request, and recessed.
3 After returning from recess, Akram indicated that he still wanted to represent himself,
and the circuit court again explained the dangers and disadvantages of self-representation
and urged him to “consider permitting counsel to represent you.” Akram reiterated his
desire to represent himself and then executed a waiver of counsel.
In his Rule 37 petition, Akram alleged that his waiver of counsel was equivocal. We
disagree. There was nothing ambiguous about Akram’s waiver of trial counsel and his clearly
stated desire to represent himself. Akram was asked multiple times about waiving counsel
and representing himself, and each time he unequivocally stated that this was his desire.
Akram signed a waiver of counsel despite the repeated warnings of the lower court.
Akram also argues that his waiver of counsel was invalid because it was untimely.
The waiver of counsel made by a defendant must be timely. E.g., Jarrett, 371 Ark. at 104,
263 S.W.3d at 541. However, the issue of timeliness is not clearly defined. In Faretta, 422
U.S. at 835, the defendant made his request weeks before trial. The Supreme Court of the
United States noted in a different case that most courts have a requirement that a Faretta
request be made in a timely fashion. Martinez v. Ct. App. Cal., Fourth Appellate Dist., 528
U.S. 152, 162 (2000).
A request to represent oneself is often closely tied to complaints about appointed
defense counsel, and the right to counsel cannot be used to “frustrate the inherent power
of the court to command an orderly, efficient, and effective administration of justice.” Jarrett,
371 Ark. at 104–05, 263 S.W.3d at 542. Thus, the logical reading of the timeliness
requirement is that it refers to the ability of the circuit court to efficiently and effectively
4 control the docket and administer justice, and a request to waive defense counsel can be
denied as untimely if the circuit court finds it would interfere with these aims. Id.
A timely request to waive trial counsel can be reversible error if not granted. See
Pierce v. State, 362 Ark. 491, 504, 209 S.W.3d 364, 371 (2005). However, we also
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Cite as 2019 Ark. App. 447 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.03 14:02:17 DIVISION II -05'00' No. CR-19-191 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 16, 2019 JAMAL AKRAM APPELLANT APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT V. [NO. 47BCR-16-94]
HONORABLE RALPH WILSON, JR., STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED
RAYMOND R. ABRAMSON, Judge
Appellant Jamal Akram was convicted by a Mississippi County jury of first-degree
murder and was sentenced as a habitual offender to sixty years’ imprisonment. This court
upheld his conviction in Akram v. State, 2018 Ark. App. 504, 560 S.W.3d 509. Akram filed
a Rule 37 petition challenging issues concerning his waiver of counsel at trial as well as a
claim of ineffective assistance of appellate counsel. On January 14, 2019, the circuit court
denied his petition. Akram now appeals the circuit court’s denial of his petition. On appeal,
he argues that his waiver of trial counsel was invalid because his request to represent himself
was equivocal and untimely, and he had ineffective assistance of appellate counsel on direct
appeal. Neither point has merit, and we affirm.
Akram’s conviction stems from the beating death of his live-in girlfriend, whose body
was found in their home on March 18, 2016. Prior to the start of the second day of trial, Akram asked to represent himself. After the circuit court delivered a lengthy lecture about
the dangers of self-representation and a thorough inquiry into Akram’s desire to represent
himself, Akram signed a waiver of counsel and was allowed to represent himself.
When reviewing a circuit court’s ruling on a Rule 37 petition, we will not reverse
the circuit court’s decision granting or denying postconviction relief unless it is clearly
erroneous. E.g., Nichols v. State, 2017 Ark. 129, at 2, 517 S.W.3d 404, 407. A decision is
clearly erroneous if, even with evidence to support the decision, this court “is left with the
definite and firm conviction that a mistake has been committed.” Id.
A defendant has a constitutional right to self-representation. Faretta v. California, 422
U.S. 806 (1975). This necessarily requires the waiver of the right to be represented by
counsel, which is a personal right that may be waived at the pretrial stage or at trial. E.g.,
Jarrett v. State, 371 Ark. 100, 104, 263 S.W.3d 538, 542 (2007). A criminal defendant may
invoke his right to defend himself pro se if “(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.” Id., 263 S.W.3d at 541. Every reasonable
presumption must be indulged against the waiver of fundamental constitutional rights, and
it is the State’s burden to show that a defendant voluntarily and intelligently waived his
fundamental right to the assistance of counsel. Walton v. State, 2012 Ark. 336, at 8, 423
S.W.3d 56, 61.
We first note that Akram has no cause of action in a Rule 37 proceeding to pursue
a Faretta claim because his argument here could have been raised on direct appeal. See Oliver
2 v. State, 323 Ark. 743, 918 S.W.3d 690 (1996). Akram alleges that his waiver of the right
to be represented by counsel was not valid because it was not timely and was equivocal.
However, his arguments that the circuit court erred in allowing him to proceed pro se were
not raised to the trial court or on direct appeal. Akram’s claim that his waiver to proceed
pro se was invalid is not cognizable in Rule 37 proceedings because Rule 37 is not available
to raise questions of trial error, even questions of constitutional dimension. Lee v. State, 2017
Ark. 337, 532 S.W.3d 43. For our court to address such a question raised by the appellant
for the first time in Rule 37 proceedings, the appellant must show a fundamental error
sufficient to void the judgment. Id. Such is not the case here; accordingly, we could
summarily affirm.
However, were we to address the merits of Akram’s claim, we would affirm the
circuit court. Akram stated at the beginning of the second day of trial that he no longer
wanted his appointed attorney to represent him and that he wanted the trial ended and
another attorney appointed. He made it clear that if the circuit court would not appoint
another attorney, he wanted to represent himself. Akram went on to emphasize that the
trial concerned his freedom, and if he were to have to serve time, he would want to do so
“behind [his] mouth[.]” The circuit court spent a considerable amount of time explaining
to Akram the dangers and pitfalls of representing himself. Following a lengthy colloquy, the
circuit court once again asked Akram if he wanted to represent himself. Akram then asked
that he be allowed to listen with defense counsel to an audio recording of the 9-1-1 call.
The court granted his request, and recessed.
3 After returning from recess, Akram indicated that he still wanted to represent himself,
and the circuit court again explained the dangers and disadvantages of self-representation
and urged him to “consider permitting counsel to represent you.” Akram reiterated his
desire to represent himself and then executed a waiver of counsel.
In his Rule 37 petition, Akram alleged that his waiver of counsel was equivocal. We
disagree. There was nothing ambiguous about Akram’s waiver of trial counsel and his clearly
stated desire to represent himself. Akram was asked multiple times about waiving counsel
and representing himself, and each time he unequivocally stated that this was his desire.
Akram signed a waiver of counsel despite the repeated warnings of the lower court.
Akram also argues that his waiver of counsel was invalid because it was untimely.
The waiver of counsel made by a defendant must be timely. E.g., Jarrett, 371 Ark. at 104,
263 S.W.3d at 541. However, the issue of timeliness is not clearly defined. In Faretta, 422
U.S. at 835, the defendant made his request weeks before trial. The Supreme Court of the
United States noted in a different case that most courts have a requirement that a Faretta
request be made in a timely fashion. Martinez v. Ct. App. Cal., Fourth Appellate Dist., 528
U.S. 152, 162 (2000).
A request to represent oneself is often closely tied to complaints about appointed
defense counsel, and the right to counsel cannot be used to “frustrate the inherent power
of the court to command an orderly, efficient, and effective administration of justice.” Jarrett,
371 Ark. at 104–05, 263 S.W.3d at 542. Thus, the logical reading of the timeliness
requirement is that it refers to the ability of the circuit court to efficiently and effectively
4 control the docket and administer justice, and a request to waive defense counsel can be
denied as untimely if the circuit court finds it would interfere with these aims. Id.
A timely request to waive trial counsel can be reversible error if not granted. See
Pierce v. State, 362 Ark. 491, 504, 209 S.W.3d 364, 371 (2005). However, we also
acknowledge that there is no bright-line rule about the timeliness of a Faretta request. Our
standard of review is whether the circuit court’s finding that the waiver of rights was
knowingly and intelligently made was clearly against the preponderance of the evidence.
Bogard v. State, 311 Ark. 412, 414, 844 S.W.2d 347, 349 (1993).
The State contends that the timeliness requirement should be read as a tool for circuit
courts to manage their dockets and administer justice and not as a gateway to reverse an
otherwise valid waiver. We agree. Akram’s argument that it was reversible error for the
circuit court to grant his otherwise valid request to represent himself on the second day of
the trial is unsupported by case law.
Akram’s second argument is that his appellate counsel was ineffective for not
challenging the validity of his waiver to proceed pro se at trial. While he raised this claim in
his Rule 37 petition, he failed to get a ruling from the circuit court. The circuit court’s
order denying his petition did not address this claim. We therefore cannot reach the merits
of his second point on appeal because it is not preserved for our review. See Crippen v. State,
2019 Ark. App. 291, 577 S.W.3d 390.
In the postconviction context, when the circuit court provides written findings on
at least one, but fewer than all, of the petitioner’s claims, our supreme court has held that
an appellant has an obligation to obtain a ruling on any omitted issues if they are to be
5 considered on appeal. Cowan v. State, 2011 Ark. 537, at 3. If the order does not contain a
ruling on an issue or issues, it is incumbent on the appellant to file a motion asking the court
to address the omitted issues. Id. The requirement that an appellant obtain a ruling on all
issues he or she wishes to raise on appeal is procedural, and all appellants, including those
proceeding without counsel, are responsible for following procedural rules in perfecting an
appeal. Id. Matters left unresolved are waived and may not be raised on appeal. Id. Because
Akram failed to get a ruling from the circuit court on his second point on appeal, it is not
preserved.
Having considered the arguments raised by Akram in this appeal, the record, and the
circuit court’s order, we find no error and affirm.
Affirmed.
GLADWIN and WHITEAKER, JJ., agree.
Jamal Akram, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Chris R. Warthen, Ass’t Att’y Gen., for appellee.