Jack Nelson Jones Professional Association

February 18-24, 2019

Patton v. State of Arkansas, 2019 Ark. App. 63

This case arose on appeal from the Desha County Circuit, Honorable Sam Patton presiding. The case involved the forfeit of the right to counsel by Adam Patton (“Patton”) in his conviction for rape and incest of his son. Patton was convicted on February 7, 2018, and filed a timely appeal, arguing that the circuit court violated his Sixth Amendment right to assistance of counsel. The Court of Appeals affirmed in an opinion by Robert J. Gladwin. It may be said that Patton gambled that a windfall he received after his initial arrest was better used for the luxuries in life while the citizens of Arkansas should supply his necessary, but less important (to him) needs, such as a free defense attorney. 

Procedural History

Patton was charged by information filed on August 19, 2016, with the rape of his son, JP. The information was amended on May 16, 2017, to include three counts of rape and two counts of incest involving the same victim. Patton was arrested, made bond, and was represented by counsel. The pretrial hearing was set for September 18, 2017, and a that time, the circuit court granted defense counsel’s motion to withdraw, based on Patton’s failure or refusal to contact him to prepare for trial. Patton stated he had made an attempt to contact his lawyer but agreed they had not had any contact. When the circuit court told Patton that it was inclined to grant counsel’s motion to withdraw, Patton asked the court for a continuance to give him time to find another lawyer. The circuit court granted the motion to withdraw in September 2017 and continued the case until January 22, 2018, which was the pretrial date. The circuit court told Patton that he needed a lawyer on his case within the next month to two months. The trial date was reset to February 6–9, 2018.

At the pretrial hearing on January 22, Patton appeared without an attorney, and told the court he had not hired one because he could not find anyone he “could come to an agreement on, moneywise, financially.” At that point, the circuit court found that Patton was there for pretrial, was charged for the rape of his son between 2012 and 2016, that he had previously been represented with an attorney that he did not bother to make contact with and who was allowed to withdraw in September and Patton was directed to appear for the pretrial with an attorney.

Patton said he had not hired an attorney in the ensuing time because he couldn’t agree moneywise on a price, and wanted the court to appoint him one, to ‘say the evidence and all that the courts have against me, I guess I’m unprepared today.’ When the circuit court asked what funds Patton had, he said not much as far as weekly income went, but he had a little bit of luck in a lottery (Patton had hit the Arkansas Million Dollar Lottery shortly after he had made bond on his rape and incest charges in 2017 and had received over $680,000 in after tax payments).

Patton did not deny having spent a “little bit of money”, including remodeling his mother’s home, buying vehicles for his wife, his oldest son, himself, and of course for his mother. However, he stated that the attorneys he talked to wanted a lot of money, it seemed to him, and he just couldn’t see having to pay that much money. At this juncture, the circuit court declared that Patton was not an indigent, did not qualify for an appointed lawyer, that he was gaming the system, and needed to elect to show up for trial with or without an attorney, but he was going to go to trial, the choice was Patton’s, who recognized the seriousness of the charges but did not want to spend his lottery money.

The State presented four witnesses – appellant’s wife, two police officers, and the victim, JP. Appellant and his mother testified for the defense. At the conclusion of evidence, the State dismissed one count of rape. The jury convicted appellant of two counts of rape and two counts of incest, and he was sentenced to a total term of 312 months’ imprisonment. Patton filed a timely notice of appeal.

Applicable Law and Standard of Review

On appeal, the Court of Appeals noted the Sixth Amendment to the United States Constitution, made obligatory on the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel for his defense. Article 2, section 10 of the Arkansas Constitution provides that an accused in a criminal prosecution has the right to be heard by himself and his counsel. It further observed that a defendant has a right to represent himself at trial when his waiver of the right to counsel is knowingly and intelligently made. The court is charged with determining whether a defendant is indigent and, if so, appointing counsel to represent him or her at the first appearance, unless the defendant knowingly and intelligently waives the appointment of counsel. In this case, the circuit court found that Patton was not indigent.

The Court of Appeals noted that the standard of review was whether the trial court abused its discretion in finding that Patton was not indigent, and indigency is considered on a case-by-case basis with the burden of establishing his status as a pauper is on the defendant claiming indigent status. Although there is no set test for indigency, the Court noted that some of the factors to be considered are (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; and (5) the number of persons dependent on the appellant for support. The ability of friends and family members to assist with expenses is not a factor in determining a petitioner’s indigency, although an exception may be made if the petitioner has control or complete discretionary use of funds raised by others.     

Decision on Appeal  

Patton argued that the circuit court erred by granting defense counsel’s motion to withdraw before new counsel had been retained, indigent counsel had been appointed, or the lack of a voluntarily and intelligently waiver of the assistance of counsel. Patton contended that, despite the circuit court twice making a finding he was not indigent and not appointing counsel, he was still entitled to free counsel and did not waive his “right” to have counsel. He also argued that the lottery winnings had been spent and he did not have weekly income to pay a ‘Five figure lawyer’. He also claimed that, even if there was a factual basis to decline to find him indigent, the circuit court still did not obtain a voluntary and intelligent waiver on the record. Patton also claimed his trial performance clearly exhibited a lack of rational understanding of the rules of evidence and courtroom behavior.

In opposition, the State contended Patton had abundant means and time to hire counsel but chose not to do so, thus engaging in conduct frustrating the orderly administration of justice. Patton, free on bond immediately after his arrest, won the lottery but spent his money on anything other than an attorney. The State argued that Patton established he not want to hire a lawyer because he could not justify spending his winnings for a hired attorney. Thus, the circuit court did not abuse its discretion in determining that appellant preferred not to hire a lawyer. 

The Court of Appeals ruled that the circuit court’s finding that Patton forfeited his right to counsel by refusing to hire counsel for his defense was not an abuse of discretion and affirmed the decision. It might be noted, however, that Court of Appeals Judge Vaught concurred with the finding but emphasized the unusual circumstances of Patton forfeiting his right to counsel by refusing to retain counsel with his large chunk of lottery winnings, and emphasized that no member of the Arkansas bar should feel that this would be likely to reoccur regarding an individual’s 6th Amendment right to counsel.