Cite as 2020 Ark. App. 423 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-07-12 11:07:48 DIVISION I Foxit PhantomPDF Version: No. CR-19-249 9.7.5
Opinion Delivered September 23, 2020 JAMES M. BOHANAN APPELLANT APPEAL FROM THE CONWAY V. COUNTY CIRCUIT COURT [NO. 15CR-18-22] STATE OF ARKANSAS APPELLEE HONORABLE JERRY RAMEY, JUDGE
MOTION TO WITHDRAW DENIED; MERIT BRIEF ORDERED
BRANDON J. HARRISON, Judge
James Bohanan was convicted of possessing firearms as a felon following a jury trial
in the Conway County Circuit Court. The court appointed Bohanan’s trial counsel to
represent Bohanan in the appeal process. Counsel filed a notice of appeal on Bohanan’s
behalf.
But counsel did not file a brief in support of Bohanan’s appeal. Instead, Bohanan’s
appointed counsel moved to withdraw from the case and filed an Anders brief, arguing that
an appeal was not meritorious and wholly frivolous. In time, the appeal was submitted for
a decision. We ordered rebriefing because, among other things, counsel did not adequately
discuss Bohanan’s attempts to remove his counsel at several points during the case. Bohanan
v. State, 2020 Ark. App. 11. Because this deficiency has still not been fixed to our satisfaction
in accordance with the Anders process, we order a merit brief and deny counsel’s motion to
withdraw. I.
A.
The main problem is that we disagree with counsel’s assertion that this appeal is
wholly without merit. There is an issue that warrants a merit brief: Was Bohanan
improperly denied his constitutional right to self-representation? Counsel’s explanation to
this court on why the circuit court was “correct in denying the appellant’s motion to
discharge his attorney and to represent himself” was as follows:
The appellant was determined by the court to be indigent and counsel was appointed to represent him in this case by the court. Therefore, appellant cannot “fire” or discharge his court appointed counsel. That authority remains with the court. There is no evidence that the court abused its discretion by not removing appointed counsel.
This is mistaken. It is well-established law that the Sixth and Fourteenth
Amendments to the United States Constitution give a criminal defendant the right to
represent himself at trial. Faretta v. California, 422 U.S. 806 (1975). A defendant in a
criminal case also has the right to represent himself at trial and act as his own lawyer pursuant
to article 2, section 10 of the Arkansas Constitution. Ivory v. State, 2017 Ark. App. 269,
520 S.W.3d 729. This is so whether or not counsel was court appointed. Whether a circuit
court erred in denying a defendant’s request to represent himself at trial is an issue of law.
Talley v. State, 2017 Ark. App. 550, at 3, 533 S.W.3d 95, 98.
There can, however, be no infringement on the right to self-representation if a
defendant fails to properly assert it. See Pierce v. State, 362 Ark. 491, 209 S.W.3d 364 (2005).
The test is whether a defendant clearly and unequivocally invoked his or her right to proceed
pro se; this test safeguards the fundamental right to counsel. See id. Although a defendant
2 need not have the skill and experience of a lawyer to competently and intelligently choose
self-representation, he must be made aware of the dangers and disadvantages of self-
representation. To this end, the circuit court record must establish well enough that the
defendant knows what he is doing, and the choice to self-represent was made with eyes
wide open. Faretta, supra. Importantly, the denial of the right to self-representation is not
subject to a harmless-error analysis because it is deemed a structural error. See Reams v.
State, 2018 Ark. 324, at 16, 560 S.W.3d 441, 452 (citing McKaskle v. Wiggins, 465 U.S. 168
(1984)).
Here, counsel appears to assert in his no-merit brief that Bohanan wanted to represent
himself at trial but was not permitted to do so by the circuit court. The record supports this
assertion. After jurors had been selected, but not sworn, defense counsel (who is also
appellate counsel) presented a note to the circuit court. The note, which was from Bohanan
to his trial-turned-appellate counsel, was accepted as evidence in the case. The note read,
“[B]efore you approach the jury I would like to dismiss you as my attorney. Do you bring
that before the Court or do I?” After reading the note, the court ruled, “The jury has already
been [e]mpaneled, and I have already told the [d]efendant that I am not going to release you
as the attorney.”
After the close of the State’s case, Bohanan chose to testify in his own defense. His
first sentence during his testimony was: “Your Honor, I dismissed my counsel earlier today.”
The court then said, “We are going to go on with the testimony regarding the case. If you
would please answer [his] questions.” Bohanan’s counsel tried to elicit some factual
3 responses from Bohanan and then said, “[W]ould you rather I let you say what you want to
say without questioning?” Bohanan replied, in part, “I don’t want you at all.”
Then came this discussion on the record, during which the court stated,
Mr. Bohanan, do you know, if I turn it over to you, do you know what you want to say. I can’t ask you questions and the jury can’t ask you questions. So it will be up to you to tell them what you want to say, since you’re not going to let Mr. Jeffrey ask the questions. That is where I am at. Do you know what you are going to say?
In response Bohanan said, “I don’t know what I am allowed to say.” And the prosecuting
attorney argued, “I think the Court needs to make clear to Mr. Bohanan, is that while he’s
entitled to testify, he’s not entitled to have a discourse with this jury.” Bohanan was never
permitted to represent himself.
B.
The Anders process balances an indigent appellant’s right to counsel on direct appeal
with appointed counsel’s professional responsibility to not file a frivolous appeal. Anders v.
California, 386 U.S. 738 (1967). In the Anders decision, the Supreme Court of the United
States directed that a reviewing appellate court must “after a full examination of all the
proceedings . . . decide whether the case is wholly frivolous.” Id. at 744. We therefore have
an independent duty to make certain that appointed counsel has not overlooked the
existence of potentially nonfrivolous issues. An issue does not have to be a winner on its
face before we order a merit brief. That is in no wise the point of the Anders process.
Given our independent review of the record, we are not satisfied that counsel
examined the record for appealable issues and accurately determined that an appeal would
be wholly frivolous. Again, our review of the record and caselaw reveals a nonfrivolous
4 question—were Bohanan’s attempts to dismiss his attorney also requests to represent himself;
and if they were, did he make them sufficiently clear and unequivocal so that the circuit
court was required to inquire further? Faretta, supra. We therefore deny counsel’s motion
Free access — add to your briefcase to read the full text and ask questions with AI
Cite as 2020 Ark. App. 423 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-07-12 11:07:48 DIVISION I Foxit PhantomPDF Version: No. CR-19-249 9.7.5
Opinion Delivered September 23, 2020 JAMES M. BOHANAN APPELLANT APPEAL FROM THE CONWAY V. COUNTY CIRCUIT COURT [NO. 15CR-18-22] STATE OF ARKANSAS APPELLEE HONORABLE JERRY RAMEY, JUDGE
MOTION TO WITHDRAW DENIED; MERIT BRIEF ORDERED
BRANDON J. HARRISON, Judge
James Bohanan was convicted of possessing firearms as a felon following a jury trial
in the Conway County Circuit Court. The court appointed Bohanan’s trial counsel to
represent Bohanan in the appeal process. Counsel filed a notice of appeal on Bohanan’s
behalf.
But counsel did not file a brief in support of Bohanan’s appeal. Instead, Bohanan’s
appointed counsel moved to withdraw from the case and filed an Anders brief, arguing that
an appeal was not meritorious and wholly frivolous. In time, the appeal was submitted for
a decision. We ordered rebriefing because, among other things, counsel did not adequately
discuss Bohanan’s attempts to remove his counsel at several points during the case. Bohanan
v. State, 2020 Ark. App. 11. Because this deficiency has still not been fixed to our satisfaction
in accordance with the Anders process, we order a merit brief and deny counsel’s motion to
withdraw. I.
A.
The main problem is that we disagree with counsel’s assertion that this appeal is
wholly without merit. There is an issue that warrants a merit brief: Was Bohanan
improperly denied his constitutional right to self-representation? Counsel’s explanation to
this court on why the circuit court was “correct in denying the appellant’s motion to
discharge his attorney and to represent himself” was as follows:
The appellant was determined by the court to be indigent and counsel was appointed to represent him in this case by the court. Therefore, appellant cannot “fire” or discharge his court appointed counsel. That authority remains with the court. There is no evidence that the court abused its discretion by not removing appointed counsel.
This is mistaken. It is well-established law that the Sixth and Fourteenth
Amendments to the United States Constitution give a criminal defendant the right to
represent himself at trial. Faretta v. California, 422 U.S. 806 (1975). A defendant in a
criminal case also has the right to represent himself at trial and act as his own lawyer pursuant
to article 2, section 10 of the Arkansas Constitution. Ivory v. State, 2017 Ark. App. 269,
520 S.W.3d 729. This is so whether or not counsel was court appointed. Whether a circuit
court erred in denying a defendant’s request to represent himself at trial is an issue of law.
Talley v. State, 2017 Ark. App. 550, at 3, 533 S.W.3d 95, 98.
There can, however, be no infringement on the right to self-representation if a
defendant fails to properly assert it. See Pierce v. State, 362 Ark. 491, 209 S.W.3d 364 (2005).
The test is whether a defendant clearly and unequivocally invoked his or her right to proceed
pro se; this test safeguards the fundamental right to counsel. See id. Although a defendant
2 need not have the skill and experience of a lawyer to competently and intelligently choose
self-representation, he must be made aware of the dangers and disadvantages of self-
representation. To this end, the circuit court record must establish well enough that the
defendant knows what he is doing, and the choice to self-represent was made with eyes
wide open. Faretta, supra. Importantly, the denial of the right to self-representation is not
subject to a harmless-error analysis because it is deemed a structural error. See Reams v.
State, 2018 Ark. 324, at 16, 560 S.W.3d 441, 452 (citing McKaskle v. Wiggins, 465 U.S. 168
(1984)).
Here, counsel appears to assert in his no-merit brief that Bohanan wanted to represent
himself at trial but was not permitted to do so by the circuit court. The record supports this
assertion. After jurors had been selected, but not sworn, defense counsel (who is also
appellate counsel) presented a note to the circuit court. The note, which was from Bohanan
to his trial-turned-appellate counsel, was accepted as evidence in the case. The note read,
“[B]efore you approach the jury I would like to dismiss you as my attorney. Do you bring
that before the Court or do I?” After reading the note, the court ruled, “The jury has already
been [e]mpaneled, and I have already told the [d]efendant that I am not going to release you
as the attorney.”
After the close of the State’s case, Bohanan chose to testify in his own defense. His
first sentence during his testimony was: “Your Honor, I dismissed my counsel earlier today.”
The court then said, “We are going to go on with the testimony regarding the case. If you
would please answer [his] questions.” Bohanan’s counsel tried to elicit some factual
3 responses from Bohanan and then said, “[W]ould you rather I let you say what you want to
say without questioning?” Bohanan replied, in part, “I don’t want you at all.”
Then came this discussion on the record, during which the court stated,
Mr. Bohanan, do you know, if I turn it over to you, do you know what you want to say. I can’t ask you questions and the jury can’t ask you questions. So it will be up to you to tell them what you want to say, since you’re not going to let Mr. Jeffrey ask the questions. That is where I am at. Do you know what you are going to say?
In response Bohanan said, “I don’t know what I am allowed to say.” And the prosecuting
attorney argued, “I think the Court needs to make clear to Mr. Bohanan, is that while he’s
entitled to testify, he’s not entitled to have a discourse with this jury.” Bohanan was never
permitted to represent himself.
B.
The Anders process balances an indigent appellant’s right to counsel on direct appeal
with appointed counsel’s professional responsibility to not file a frivolous appeal. Anders v.
California, 386 U.S. 738 (1967). In the Anders decision, the Supreme Court of the United
States directed that a reviewing appellate court must “after a full examination of all the
proceedings . . . decide whether the case is wholly frivolous.” Id. at 744. We therefore have
an independent duty to make certain that appointed counsel has not overlooked the
existence of potentially nonfrivolous issues. An issue does not have to be a winner on its
face before we order a merit brief. That is in no wise the point of the Anders process.
Given our independent review of the record, we are not satisfied that counsel
examined the record for appealable issues and accurately determined that an appeal would
be wholly frivolous. Again, our review of the record and caselaw reveals a nonfrivolous
4 question—were Bohanan’s attempts to dismiss his attorney also requests to represent himself;
and if they were, did he make them sufficiently clear and unequivocal so that the circuit
court was required to inquire further? Faretta, supra. We therefore deny counsel’s motion
to withdraw and order a merit brief on the point.
The clerk of this court provided Bohanan with a copy of his counsel’s motion to
withdraw along with an accompanying Anders no-merit brief in accordance with Rule 4-
3(k)(2) of the Rules of the Supreme Court and Court of Appeals of Arkansas. Bohanan
filed pro se points within thirty days, and the Arkansas Attorney General’s Office has filed a
brief in response. Ark. Sup. Ct. R. 4-3(k)(3) (2019). Bohanan’s pro se points span a wide
range of topics; most have to do with his lawyer’s performance. We acknowledge the points
but do not address them now given the order to rebrief.
II.
Counsel’s motion to withdraw is denied, and he is ordered to file a merit brief on
the issue of whether Bohanan’s requests to dismiss his attorney were also requests to
represent himself; and if they were, did Bohanan make knowing, voluntary, timely, clear,
and unequivocal requests made with a general understanding of the consequences? Faretta,
supra; see also State v. Towle, 35 A.3d 490, 493 (N.H. 2011) (discussing various courts’
approaches when a defendant tries to remove his defense attorney).
The merit brief is due within thirty days of today’s opinion. The State may file a
response brief if it so chooses within thirty days after Bohanan’s counsel has filed a merit
brief.
Motion to withdraw denied; merit brief ordered.
5 KLAPPENBACH and HIXSON, JJ., agree.
Robert N. Jeffrey, Attorney at Law, by: Robert N. Jeffrey, for appellant.
Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.