Right to counsel overlooked, appeals court rules

When Dale Harvey Brown decided to represent himself in his trial on drug manufacturing and possession charges, he wasn’t fully advised of his right to have an attorney or of the risks of turning one down, the Arkansas Court of Appeals ruled Wednesday.

The panel of six judges was split, with four ruling in favor of reversing Brown’s conviction and remanding the case back to the Van Buren County Circuit Court for a new trial.

Brown was convicted of manufacturing marijuana, possession of marijuana with intent to deliver, possession of drug paraphernalia and simultaneous possession ofdrugs and firearms. In total, he was sentenced the 16 years in prison and fined $30,000.

The Arkansas Supreme Court has ruled that an accused person can “knowingly and intelligently” waive his right to counsel.

Brown argued on appeal that he did not.

He said several times over the course of about a year that he considered hiring private counsel but did not for various reasons. In his appeal, Brown was represented by Sharon Kiel, an attorney in Little Rock.

After his arraignment, he told the trial court that he had visited the law library, was educated, and had computer and Internet access.

But Judge Douglas Martinnoted in the judges’ majority opinion that “Brown had no criminal history, however, and was essentially a newcomer to the criminal justice system.”

Martin wrote that although there were 13 pretrial hearings, the trial judge never explicitly told Brown that he had an “absolute right” to counsel, and did not “adequately” warn him about the risks of representing himself. And a public defender appointed to serve as standby counsel was not substantial, Martin added.

“Based on our review, however, it appears that the trial judge simply overlooked the basic premise that Brown had a constitutional right to counsel,” Martin wrote. “We cannot assume that Brown was aware of his right to counselsimply because Brown is educated and had access to an online law library.”

Chief Judge Larry Vaught and Judges John Robbins and Raymond Abramson agreed.

But in a dissent, Judge Rita Gruber wrote that, even without an explicit statement advising Brown of his fundamental right to counsel, Brown knew what he was getting himself into.

“Our mothers warned us to be careful what we wish for because we just might get it. This appears to be true for Mr. Brown,” she wrote.

Judge Josephine Linker Hart agreed with the dissent.

At the Arkansas Court of Appeals, the case is CACR11-535, Dale Harvey Brown v. State of Arkansas.