William Seward v. State of Arkansas

Cite as 2022 Ark. App. 183
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-21-476

WILLIAM SEWARD Opinion Delivered April 27, 2022
APPELLANT
APPEAL FROM THE YELL
COUNTY CIRCUIT COURT,
V. SOUTHERN DISTRICT
[NO. 75SCR-18-39]
STATE OF ARKANSAS
APPELLEE HONORABLE JERRY DON RAMEY,
JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

William Seward appeals the Yell County Circuit Court’s revocation of his probation.

On appeal, he does not challenge the sufficiency of the evidence. Instead, he argues that the

court erred in denying his oral motion for a mental examination. For the following reasons,

we affirm.

On October 4, 2018, Seward entered a negotiated plea of guilty in the Yell County

Circuit Court to possession of drug paraphernalia. As part of the plea deal, the State nolle

prossed two additional controlled-substance charges. He was sentenced as a habitual offender

to a term of 120 months’ probation. Among other terms and conditions of probation,

Seward was not to commit a criminal offense punishable by imprisonment; to submit to any
nonresidential rehabilitative, medical, counseling, or psychiatric program deemed necessary

by his supervising probation officer; and to pay a supervision fee of $35 a month.

On March 21, 2019, the State filed a petition to revoke Seward’s probation because

he was charged with the commission of a new felony offense, possession of a controlled

substance; and a new misdemeanor offense, possession of a Schedule IV controlled substance

in Conway County on or about February 6, 2019. On July 1, the State filed a motion to

nolle prosse the probation-revocation petition.

On September 11, 2020, the State filed a second petition to revoke Seward’s

probation as a result of new charges that Seward received in Pope County on August 12,

2020: (1) felony offenses—two counts of possession of a controlled substance and one count

of possession of drug paraphernalia; and (2) misdemeanor offenses—driving on a suspended

or revoked license, driving without insurance, and possession of drug paraphernalia.

Additionally, the State alleged Seward had violated the terms and conditions of probation

because as of August 24, 2020, he was delinquent on his supervision fees in the amount of

$385, and he had failed to participate in any substance-abuse treatment as directed by the

probation office.

On November 18, the State filed an amended revocation petition to add an allegation

that Seward also violated the terms and conditions of his probation by committing the

following new felony offenses in Pope County on October 22, 2020: possession of a

controlled substance and possession of drug paraphernalia. Arraignment on the probation-

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revocation charges was held on May 6, 2021, and a revocation hearing was scheduled for

June 3, 2021.

At the arraignment, the circuit court appointed an attorney to represent Seward and

instructed him to “[s]tay in touch with [his attorney] and talk to [her].” Seward agreed, stating,

“Yes, Your Honor.” On June 3, the circuit court ordered a continuance due to the

unavailability of a necessary witness for the prosecution and rescheduled the revocation

hearing for July 1. The court again instructed Seward to remain in contact with his attorney,

which he again agreed to do.

On July 1, 2021, the circuit court held a hearing on the State’s amended revocation

petition. At the beginning of the hearing, Seward’s counsel asked for a continuance, stating,

“There is information that I need to get from Mr. Seward that I was not aware of today that

could impact this case.” The court denied the motion, noting that the case already had been

continued from June 3. Seward interjected, “It’s about my health.” Then he stated to his

attorney, on the record, “You need to get a continuance.” Immediately after this exchange,

the court instructed the State to call its first witness, but Seward’s attorney interrupted,

“Judge, I think we have a plea agreement.” The court responded, “I’ve got witnesses here. I

am ready to move forward, Ms. Wright. It’s 2 o’clock in the afternoon, we’ve been here all

morning and we are just now getting––” Seward interrupted, “I want rehab.”

The court continued, “I am going to leave it up to the State, it is the State’s case. Do

you want a few minutes to talk, fine, but I’m ready for trial.” The deputy prosecutor then

stated, “What I don’t want to do, Your Honor, and what I’m concerned about is there’s been

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wish-washiness about whether we’re going to . . . take a plea or not take a plea. And I don’t

want to delay this matter any further and have it not end up pleading.”

Seward’s attorney agreed with the State and asked Seward, “Are you going to take the

plea agreement?” He replied, “Yes, ma’am.” The court then granted a short continuance and

instructed the parties to start the plea paperwork while it attended to other matters on the

docket.

Later that day, the circuit court recalled the case. At that time, Seward’s attorney

informed the court of her intent to file a motion for a fitness-to-proceed examination,

explaining that “after a conversation[,] there has been a question about Mr. Seward’s fitness,

that he is under mental care. He does not understand what I am doing.” The court voiced

its displeasure at the issue of Seward’s fitness having been raised for the first time “at this

late stage.” Seward interrupted, “I just don’t understand, I mean, I went to the nut house

from the jail.” Seward’s attorney stated, “Judge, I think fitness stops everything.” The court

replied, “There are time issues on fitness and this is it.”

Seward interjected again, “I don’t understand.” The court stated, “I’ve made my

ruling,” and then inquired whether the parties had reached a plea agreement. The deputy

prosecutor informed the court they had not. The revocation hearing proceeded, during

which Seward’s probation officer testified that she went over the terms and conditions of

probation with Seward, including that he was not to commit a criminal offense punishable

by imprisonment. Additionally, the State introduced Seward’s Pope County judgments of

conviction showing that on April 12, 2021, he pleaded guilty to having committed the

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offenses of possession of a controlled substance and possession of drug paraphernalia and

his Conway County judgment of conviction reflecting that on May 15, 2019, he pleaded

guilty to having committed the offense of possession of drug paraphernalia.

Seward testified that he “was under care for mental health,” did not understand “what

we’re doing here today,” and “didn’t know this was even happening.” When asked about his

health problems, he stated, “I’ve got hepatitis C, I’m on stage four. There’s only four. I found

that out two days before I got caught in Russellville. And they just decided that it was

probation that I should have.” When asked what types of medication he was taking, he

answered, “I take ten pills a day. Four of them is for my heart. The rest of them is for my

body, my mind.” And when asked if he had been diagnosed with “schizophrenia or anything

like that[,]” he said, “Yeah. A lot of them, I don’t remember what all––mental disorder.”

On cross-examination, Seward admitted that he remembered pleading guilty in

Conway County Circuit Court to possession of a controlled substance and drug

paraphernalia, stating that he pleaded guilty to possessing “a baggie.” And he admitted that

he also remembered pleading guilty in Pope County in two criminal cases involving

methamphetamine and a pipe. When asked whether he started “feigning this ʻI don’t

understand anything’” only after he learned that he was “going to jail today under the

negotiated agreement that we had with your lawyer[,]” he insisted that he did not understand

and that he did not remember pleading guilty or going over the terms and conditions of

probation in the present case. He admitted, however, that he understood he could not

commit other crimes while on probation.

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Seward then stated to the circuit court, “Your Honor, I went to get evaluated. I went

to the nut house from jail, 11 days, I’m free. I just found out I was diagnosed, I was told it

was drugs––I was terminal, stage four.” The circuit court found that Seward had violated the

terms and conditions of his probation by committing new criminal offenses, revoked his

probation, and sentenced him to prison for a term of five years.

The timely appeal is now properly before us. In two related points for reversal, Seward

claims that the court erred by conducting the revocation hearing without suspending the

proceeding, ordering a competency examination, and determining that he was fit to proceed.

His argument is two-fold: (1) he contends the court erroneously denied his oral motion for

a fitness-to-proceed examination for the “sole reason” that the motion was untimely; and (2)

he contends the trial court should have sua sponte ordered a fitness-to-proceed examination.

We will reverse a circuit court’s decision to proceed in a revocation proceeding

without a competency examination only if the decision was clearly erroneous. E.g., Hardaway

v. State, 321 Ark. 576, 579, 906 S.W.2d 288, 290 (1995). The State maintains that the court

did not violate Seward’s due-process rights by failing to order a competency examination.

We agree.

At the outset, as to his oral motion for a competency examination, Seward narrowly

construes the court’s ruling as “solely based on timeliness.” Arkansas Code Annotated

section 5-2-327(1) (Supp. 2021) provides that “[a]ny party or the court may raise the issue of

the defendant’s fitness to proceed.” However, Arkansas Code Annotated section 5-2-304(a)

(Supp. 2021) mandates: “If a defendant intends to put his fitness to proceed in issue, he

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must notify the trial court and the prosecutor at the earliest practicable time.” Here, we hold

that, given the facts before us, it was not brought to the court’s attention in a timely manner.

The court is required to order a fitness-to-proceed examination when “it finds there

is reasonable suspicion that a defendant is not fit to proceed.” Ark. Code Ann. § 5-2-

327(a)(2). “The test for determining whether a trial court should sua sponte order a

competency hearing is whether there is substantial evidence that the defendant may be

mentally incompetent[.]” Flowers v. State, 2015 Ark. App. 181, at 4–5, 458 S.W.3d 250, 252.

Evidence is “substantial” if it raises a reasonable doubt about the defendant’s fitness to

proceed. E.g., Philips v. State, 2021 Ark. App. 221, at 5, 625 S.W.3d 394, 397. “In

determining the existence of a reasonable doubt as to competency, it is appropriate to

consider any irrational behavior exhibited by the defendant, his demeanor in the

proceedings, and any prior medical opinion on competence to assist in his defense.” Welter

v. State, 26 Ark. App. 75, 77, 759 S.W.2d 814, 815 (1988). Under these standards, the court’s

refusal to order, either upon Seward’s oral motion or sua sponte, a competency examination

was not clearly erroneous, and we accordingly affirm.

Seward appeared in court with the same attorney on at least two prior occasions only

weeks before he requested a competency examination for the first time. Before that, he had

appeared with the same attorney on at least five occasions in connection with his prosecution

and conviction for the underlying felony offense and previous revocation proceedings. By

his own admission, he learned of his purportedly terminal illness and went from jail to the

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“nut house” where he was evaluated, treated, and released—all before his revocation hearing

on July 1, 2021.

Seward was questioned on cross-examination about whether he was “feigning” his

alleged inability to understand the proceedings. It was the court’s responsibility to judge the

credibility of his testimony vis-à-vis his eleventh-hour incompetency claim, and we will not

disturb the court’s credibility determination on appeal. E.g., Fritts v. State, 2013 Ark. App.

404, at 4; see also, e.g., Hardaway, 321 Ark. at 578–79, 906 S.W.2d at 289–90 (willful

misconduct does not give rise to belief that a defendant is incompetent).

There was nothing before the circuit court, other than Seward’s own self-serving

assertion that he did not understand the proceedings, that gave rise to a reasonable doubt

about whether his mental-health status prevented him from understanding the proceedings

and assisting in his defense. As such, the court did not clearly err by proceeding with the

revocation hearing without a fitness-to-proceed examination.

Affirmed.

HARRISON, C.J., and GRUBER, J., agree.

Beth Wright, Public Defender, for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Sr. Ass’t Att’y Gen., for appellee.

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