Joe Morris v. State of Arkansas

Cite as 2025 Ark. App. 365
ARKANSAS COURT OF APPEALS
DIVISION III
CR-24-719
No.

Opinion Delivered June 4, 2025

JOE MORRIS APPEAL FROM THE POPE
APPELLANT COUNTY CIRCUIT COURT
[NO. 58CR-20-61]
V.
HONORABLE JAMES DUNHAM,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED

BRANDON J. HARRISON, Judge

The Pope County Circuit Court revoked Joe Morris’s suspended imposition of

sentence (SIS) and sentenced him to fifteen years’ imprisonment and ten years’ SIS. On

appeal, he asserts that the circuit court abused its discretion by denying his request for a

continuance in order to retain new counsel. We affirm.

In January 2020, the State charged Morris with possession with the purpose to

deliver methamphetamine. He was also charged as a habitual offender. In April 2021,

Morris pled guilty and received a sentence of five years’ imprisonment and three years’ SIS.

In December 2023, the State petitioned to revoke Morris’s SIS, alleging that on 7

November 2023, he had committed the offenses of possession of methamphetamine,

cocaine, or heroin with purpose to deliver; possession of a Schedule VI controlled substance

with purpose to deliver; and fleeing.

1
The circuit court convened a revocation hearing on 28 June 2024. Morris’s

appointed defense counsel, Cody Bassham, informed the court that Morris had asked the

day before whether he could have a continuance to hire new counsel. Bassham had advised

Morris that because his arrest had happened over eight months ago, it was unlikely that the

court would grant a continuance. Morris told the court that he had hired private counsel

in a previous case and that he was trying to do so again. Morris said,

My son spoke to an attorney this morning and, you know, we have a
little bit of time left, you know, and then, you know.

But I haven’t really went over too much with Cody. It’s just been a
few minutes. They give me a lawyer, Mr. Seth—Mr. Seth Bradley, and I
never did even speak with him, so and then they kept telling me when I kept
calling the public defender’s office that they was waiting to give me an
attorney, and then all of a sudden he came on there.

I didn’t even know this here was being conducted—go on until I seen
it on the—I had people looked on Court Connect to find out. So I haven’t
been served with anything on this. I had looked up a couple things, you know,
where that it, the Canon Act that I ask you to step down, you know, from it
because I don’t feel like that that— that—I don’t know. He said that if I don’t
take the plea bargain, but I haven’t really went over this stuff enough—he just
handed me this yesterday, so this was supposed to be discovery yesterday.

Morris asked to “fire” his attorney.

The court explained that a public defender is appointed by the court to represent a

defendant; the defendant does not select the public defender. The court stated, “This

appears to be very clearly the matter of the defendant wishing that he would not have a

hearing today, although one has been set for a significant amount of time.”

Morris did not wish to represent himself, so the hearing proceeded, and the court

revoked Morris’s SIS. Morris received a sentence of fifteen years’ imprisonment and ten

years’ SIS, which he has timely appealed.

2
Morris’s sole point on appeal is that the circuit court abused its discretion in denying

his motion for a continuance so he could retain new counsel. A defendant’s right to counsel

of choice is grounded in the Sixth Amendment to the United States Constitution and is also

guaranteed by article 2, section 10 of the Arkansas Constitution. While constitutionally

guaranteed, the right to counsel of one’s choosing is not absolute and may not be used to

frustrate the inherent power of the court to command an orderly, efficient, and effective

administration of justice. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). Once

competent counsel has been obtained, any request for a change in counsel must be balanced

against the public’s interest in the prompt dispensation of justice. Raino v. State, 2021 Ark.

App. 331. Additionally, once a defendant has accepted representation by an attorney, the

fact that the defendant is dissatisfied with counsel’s efforts does not entitle him to

appointment of a different attorney. Bullock, supra. In fact, “the right to counsel of choice

does not extend to defendants who require counsel to be appointed for them.” United States

v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006).

Factors to be considered by the circuit court in determining whether to grant a

continuance for the purpose of obtaining new counsel include whether there was adequate

opportunity for the defendant to employ counsel; whether other continuances have been

requested and granted; the length of the requested delay; whether the requested delay is for

legitimate reasons; whether the motion for a continuance was timely filed; whether the

defendant contributed to the circumstances giving rise to the request for a continuance; and

whether the reason for the discharge of existing counsel was solely for the purpose of

obtaining a continuance. Brewer v. State, 2017 Ark. App. 335, 525 S.W.3d 24. In each

3
situation, the circuit court must look at the particular circumstances of the case at bar, and

the issue must be decided on a case-by-case basis. Liggins v. State, 2015 Ark. App. 321, 463

S.W.3d 331.

A circuit court retains broad discretion to grant or deny a continuance for purposes

of obtaining new counsel. Brewer, supra. A circuit court’s denial of a continuance will not

be overturned absent a showing of abuse of that discretion. Raino, supra. An abuse of

discretion occurs only when the circuit court acts improvidently, thoughtlessly, or without

due consideration. Brewer, supra. Further, even if the circuit court abused its discretion, an

appellant must also demonstrate prejudice amounting to a denial of justice. Raino, supra.

Morris asserts that the circuit court “mistook [his] frustration with the public

defender’s office and stated choice to hire a private attorney—like he did before—to support

a finding that he ‘just didn’t want a hearing today.’” He contends that there is no indication

of any trial preparation done in the first four months that his case was pending, that he never

met the first public defender appointed to represent him, and that Bassham did not file an

entry of appearance in the case until 13 May 2024, which was one month before the

hearing. 1 He had also not previously requested a continuance.

Morris also faults the circuit court with not identifying the public interest at stake or

noting any scheduling conflicts that would be caused by granting the continuance. The

court also failed to inquire about the length of time requested or whether the continuance

would inconvenience the State’s two witnesses. Morris claims he was left in a “catch-22”

1
Bassham filed his entry of appearance six weeks before the revocation hearing.

4
in which he could either go forward without counsel or go forward with the public

defender, whom he had met just one day before the hearing to review the State’s responses

to discovery.

In support of his position, Morris cites Conic v. State, 2021 Ark. App. 185, 624

S.W.3d 322. In Conic, the defendant appeared at his sentencing hearing with attorney

Danny Williams, and Williams informed the court that Conic had hired a new attorney,

Angela Kendrick. Kendrick did not appear, and Williams asked for a continuance on her

behalf, which was denied.

The court discharged Williams from his obligation to represent Conic, and after

Conic confirmed that he no longer wanted Williams as his attorney and that he had hired

Kendrick as his new attorney, the court relieved Williams and told him that he was free to

leave. After an hour-long break, the court stated that Kendrick had contacted the court and

indicated that she would not appear at the hearing. The court told Conic that he had

“played yourself into no attorney.” Id. at 6, 624 S.W.3d at 326. Conic asked the court to

grant a continuance “based off of the grounds of my ignorance,” but the court denied the

request, and the sentencing hearing proceeded. Id., 624 S.W.3d at 327.

On appeal, this court held that the circuit court had abused its discretion in denying

Conic’s request for substitution of counsel and for a continuance. We held that the circuit

court had not weighed Conic’s constitutional right to counsel against a countervailing

governmental interest, had not identified any scheduling conflict or explained why the

probation sentencing could not sustain a minimal delay, had not inquired about the length

of the requested delay, and had not asked Conic whether he had a legitimate reason for

5
retaining a new attorney. Further, the court had not found that Conic was made aware of

the danger of self-representation or that he knowingly and intelligently waived his right to

counsel. This court held that the circuit court’s decision that Conic could represent himself

was clearly against the preponderance of the evidence and that the denial of a continuance

under these circumstances amounted to the denial of due process of law.

Morris also cites Clements v. State¸ 306 Ark. 596, 817 S.W.2d 194 (1991), in which

Clements was facing retrial for capital murder. On 23 April 1991, the circuit court

appointed attorneys Richard Atkinson and Kenneth Suggs to defend Clements at his second

trial scheduled for 24 June 1991. At a pretrial hearing on June 17, Atkinson moved for a

continuance, citing the amount of discovery and the time needed to adequately prepare for

trial. The court denied the motion and instead found both attorneys negligent, held them

in contempt, removed them from the case, and appointed two new attorneys. The court

presented Clements with two options: if he accepted representation from the new attorneys,

the court would grant a continuance; if he proceeded with Atkinson, as he wanted, then

the court would not grant a continuance. Clements agreed to representation by the new

attorneys but also filed an interlocutory appeal of Atkinson’s dismissal.

The Arkansas Supeme Court described the situation as a “catch–22 position that

compelled [Clements] to accept new, unrequested counsel in order to gain a continuance

or proceed immediately to trial against the advice of his previously assigned attorney, with

whom he had developed a working relationship.” Id. at 608–09, 817 S.W.2d at 200. The

supreme court held that the circuit court’s action was “arbitrary and unacceptable” and

constituted a violation of Clements’s right to counsel. Id. at 609, 817 S.W.2d at 200.

6
Morris concludes, leaning on Conic and Clements, that the circuit court abused its

discretion in this case and asks that we reverse and remand for a new revocation hearing.

The State disagrees that Morris was denied the right to counsel of his choosing

because when an appellant fails to identify his counsel of choice, he “manifestly” is not

deprived of that choice. See Raino, 2021 Ark. App. 331, at 9. The State also explains that

Morris did not make his motion for continuance until the day of the hearing, seven months

after the date of his arrest on 7 November 2023. In the interim, the court held four status

hearings in 2024 (February 6, April 15, May 13, and June 17) at which times Morris could

have informed the circuit court of his alleged dissatisfaction with appointed counsel and his

intention to retain private counsel. Morris’s only reason for requesting the continuance was

his dissatisfaction with the amount of communication between him and Bassham. But

Bassham told the court that there were records of his Zoom calls with Morris, during which

they had reviewed evidence. Bassham also stated that he was ready for the hearing when

asked. The State concludes that the totality of the circumstances supports the court’s

rationale that Morris was moving for a continuance primarily for delay purposes.

We hold that the circuit court did not abuse its discretion in denying Morris’s

continuance motion. Morris had no other counsel identified, and by waiting until the day

of the hearing to raise the issue, he failed to show diligence. The cases cited by Morris are

distinguishable; in Conic, the defendant was forced to proceed with no counsel, and in

Clements, the defendant was coerced into accepting new representation so that his attorneys

could be adequately prepared for trial. Here, Morris was not left without representation,

nor did he face the situation of proceeding with an admittedly unprepared attorney. Morris

7
did not allege any actual deficiency in Bassham’s representation, and Bassham was present at

the hearing and ready to proceed. Finally, Morris has not demonstrated prejudice resulting

from Bassham’s representation. Morris’s underlying conviction was a Class C felony, so as

a habitual offender, he faced a sentence of not less than three years and not more than thirty

years. Ark. Code Ann. § 5-4-501(b)(2)(D) (Repl. 2024). As we have said, the court

sentenced Morris to fifteen years’ imprisonment and ten years’ SIS. A defendant who is

sentenced within the statutory range—and short of the maximum sentence—cannot

establish prejudice. Tate v. State, 367 Ark. 576, 242 S.W.3d 254 (2006).

Affirmed.

WOOD and BROWN, JJ., agree.

Dusti Standridge, for appellant.

Tim Griffin, Att’y Gen., by: James Hill, Ass’t Att’y Gen., for appellee.

8