Brief on this case not a memo but a brief

10:32 75 / 60.24 230 Louis CLAY a/k/a Louis Clay, Jr. a/k/a 'Spoola Boo' V. STATE of Mississippi. No. 97-KA-01452-SCT. Supreme Court of Mississippi. March 23, 2000. [757 So.2d 237] Robert J. Hildum, Baton Rouge, Attorney for Appellant. Office of the Attorney General by Pat S. Flynn, Attorney for Appellee. BEFORE PITTMAN AND BANKS, P.JJ., AND MILLS, J. PITTMAN, Presiding Justice, for the Court: STATEMENT OF THE CASE 1 1. This is a criminal appeal taken from the Circuit Court of Wilkinson County, Mississippi, Circuit Judge Lillie Blackmon Sanders, presiding, wherein Louis Clay, Jr. was convicted of aggravated assault and sentenced as an habitual offender to twenty years in the custody of the Mississippi Department of Corrections without benefit of probation or parole. Final judgment was entered on October 17, 1997, and this appeal was timely filed. STATEMENT OF THE FACTS 1 2. On November 8, 1996, Louis Clay, Jr., was indicted on the charges of assault with a deadly weapon and a convicted felon in possession of a firearm. The indictment also noted that Clay was an habitual offender. 1 3. On December 2, 1996, Clay appeared before Circuit Judge Lillie Blackmon Sanders in the Circuit Court of Wilkinson County for arraignment. Clay pled not guilty. Judge Sanders found Clay to be indigent and appointed Thomas Rosenblatt to represent Clay. Citing an unwillingness by Clay to defer and cooperate with counsel, Rosenblatt filed a motion to withdraw as Clay's attorney, granted. L.H. Rosenthal10:32 all o 0 ' 9 3. On December 2, 1996, Clay appeared before Circuit Judge Lillie Blackmon Sanders in the Circuit Court of Wilkinson County for arraignment. Clay pled not guilty. Judge Sanders found Clay to be indigent and appointed Thomas Rosenblatt to represent Clay. Citing an unwillingness by Clay to defer and cooperate with counsel, Rosenblatt filed a motion to withdraw as Clay's attorney, which was granted. L.H. Rosenthal was then appointed as Clay's counsel, and trial was set fo February 27, 1997. Rosenthal sought and was granted a continuance, giving him more time to prepare for trial due to his recent appointment to the case. 9 4. Trial was set for June 17, 1997. On June 16, Rosenthal sought and was granted a continuance based upon Clay's impending surgery with a new trial date set for June 26, 1997. Although not reflected [757 So.2d 238] in the record, the trial was apparently continued again on June 26, 1997. On September 19 trial was reset for October 8, 1997. 9 5. Jury selection began on October 8, 1997, but a mistrial was declared prior to the jury being selected. Trial was reset for October 16, 1997. On the date of trial an extensive conference was held in chambers. During the conference, Clay requested that he be allowed to present pro se motions. During the course of discussion, the court discovered that Clay and Rosenthal disagreed on how Clay was to be represented. Rosenthal then made an oral motion to withdraw as Clay's counsel citing a differing opinion on how to proceed with the case and questioning Clay's indigent status. 9 6. Clay responded to Rosenthal's allegation concerning certain assets and pointed out that Clay received food stamps and disability benefits, citing a monthly income of $484. Subsequently, the court granted Rosenthal's motion to withdraw and revoked Clay's indigent status based upon his statement that he made $484 per month from disability. A discussion then ensued concerning the prior delays in going to trial. The State blamed the delays on Clay and accused him of intentionally delaying the proceedings. The State also petitioned the court to raise Clay's bond. Rosenthal stated that delay alone was not his purpose for seeking another continuance. Before Rosenthal could explain his reason for the continuance, Judge Sanders cut him off, reminding him that he had been excused from representing Clay. The discussion of prior delavs continueq WItD the Slale seeking once again to 10:32 all o 0 ' questioning Clay's Indigent status. 9 6. Clay responded to Rosenthal's allegation concerning certain assets and pointed out that Clay received food stamps and disability benefits, citing a monthly income of $484. Subsequently, the court granted Rosenthal's motion to withdraw and revoked Clay's indigent status based upon his statement that he made $484 per month from disability. A discussion then ensued concerning the prior delays in going to trial. The State blamed the delays on Clay and accused him of intentionally delaying the proceedings. The State alsc petitioned the court to raise Clay's bond. Rosenthal stated tha delay alone was not his purpose for seeking another continuance. Before Rosenthal could explain his reason for the continuance, Judge Sanders cut him off, reminding him that he had been excused from representing Clay. The discussion of prior delays continued with the State seeking once again to have Clay's bond raised, theorizing that Clay was manipulating the system through undue delays. 91 7. Conversation then turned to the issue of Judge Sanders's ability to be fair and unbiased. The discussion ended when Judge Sanders once again found Clay not indigent, granted a recess in which time Clay could hire a new attorney, and raised his bond from $20,000 to $100,000 so the case would not "drag on and on and on." 9 8. Clay stated that he could not make the bail and requested that he be given "a couple of days" to find an attorney since he had already talked to one about taking his case. Judge Sanders reiterated that Clay's bail was set at $100,000 and explained that his new attorney could talk to him in jail. Faced with the prospect of going to jail during the interim before trial and after talking with Rosenthal, Clay decided to proceed pro se that day. 9 9. Judge Sanders then conducted an examination of Clay under URCCC 8.05 to determine whether he knowingly and voluntarily desired to proceed as his own attorney. After the examination and further discussion with Rosenthal, Clay decided to represent himself at trial that day. For the record, Judge Sanders found that Clay knowingly and voluntarily decided to proceed as his own attorney. Judge Sanders, in her discretion, further decided not to appoint, at that time, an attorney to assist Clay in matters of procedure and protocol. Clay suggested that he might need an attorney later, at which point the State argued that such an appointment at a later time would once again delay the trial. Judge Sanders responded that Clav conld acanire an ATTOIMEV 10 aqvice im at the heginning of 10:32 all o 0 ' STATEMENT OF THE ISSUES I. WHETHER CLAY WAS DENIED HIS DUE PROCESS RIGHTS WHEN ON THE DAY OF TRIAL THE COURT STRIPPED CLAY OF HIS INDIGENT STATUS AND ALLOWED HIS ATTORNEY TO WITHDRAW. II. WHETHER CLAY'S DECISION TO PROCEED PRO SE WAS FREE AND VOLUNTARY WHERE AS A RESULT OF THE TRIAL COURT'S RULINGS CLAY WAS FACED WITH THE CHOICE OF GOING TO TRIAL WITHOUT COUNSEL OR GOING TO JAIL. DISCUSSION I. WHETHER CLAY WAS DENIED HIS DUE PROCESf RIGHTS WHEN ON THE DAY OF TRIAL THE COURY STRIPPED CLAY OF HIS INDIGENT STATUS AND ALLOWED HIS ATTORNEY TO WITHDRAW. II. WHETHER CLAY'S DECISION TO PROCEED PRO SE WAS FREE AND VOLUNTARY WHERE AS A RESULT OF THE TRIAL COURT'S RULINGS CLAY WAS FACED WITH THE CHOICE OF GOING TO TRIAL WITHOUT COUNSEL OR GOING TO JAIL. 9 12. Issues I and II shall be considered together for the purpose of determining whether stripping Clay of his indigent status and raising his bail served to make his choice to proceed pro se nonvoluntary and to infringe his right to effective assistance of counsel. Both the determination of indigent status and the setting of bail are left to the sound discretion of the trial judge. Gerrard v. State, 619 So.2d 212, 218 (Miss.1993); Lee v. Lawson, 375 So.2d 1019, 1021 (Miss.1979). Such judgment shall not be overturned unless there is a showing of manifest error or abuse of discretion. Id. at 1021. 9 13. The record reflects that Clay was examined and declared indigent on December 3, 1996, by Judge Sanders and an attorney was appointed for his defense. The record does not show upon what basis this decision was made, nor are there any affidavits or statements attesting to Clay's status as an indigent. 9 14. On October 16, 1997, the day of trial, Clay sought a continuance and the dismissal of his attorney, Rosenthal. After such motion had been read into the record, Rosenthal claimed that Clay was not indigent. He based this opinion upon certain property he had seen at clavs nome over the course of his 10:32 all o 0 ' 9 14. On October 16, 1997, the day of trial, Clay sought a continuance and the dismissal of his attorney, Rosenthal. After such motion had been read into the record, Rosenthal claimed that Clay was not indigent. He based this opinion upon certain property he had seen at Clay's home over the course of his representation of Clay. These assets as described by Rosenthal were cars, office equipment and interest in a club. Rosenthal, however, did not provide any evidence that such property belonged to Clay nor did he provide an affidavit for the record as directed by Judge Sanders. 9 15. When questioned about these alleged assets Clay explained that the cars were not his and were not located at his address but were located at the address of his common-law wife, Yolanda Davis. He explained that his common-law wife owned four, that his son owned one, and that another belonged to a friend, Joseph Pyle, for whom Clay "had some guys working on it." Clay further explained that the office equipment belonged to his sister who owned a beauty shop in Baton Rouge which had burned, and she was storing the equipment witl him. Clay did not address his alleged interest in a social club; but Rosenthal admitted that the club was titled in the name of Clay's son. Clay admitted to receiving $480 in disability and food stamps. He had admitted to this income at his first examination concerning whether he was indigent. [757 So.2d 240] 1 16. Based upon Rosenthal's opinion regarding Clay's assets and Clay's income of $480 per month from disability and food stamps, Judge Sanders stripped Clay of his indigent status. Judge Sanders also granted Rosenthal's motion to withdraw as Clay's counsel. 9 17. While the determination of indigent status is left to the sound discretion of the judge and no law requires that an evidentiary hearing be held to determine such, the decision must not be an abuse of that discretion. See generally Bilbo v. Thigpen, 647 So.2d 678 (Miss.1994). This Court finds that Judge Sanders abused her discretion in stripping Clay of his indigent status under the facts of this case. 9 18. Supporting this decision are several factors: First, Clay had previously been examined and declared indigent by Judge Sanders with the knowledge that Clay received a monthly income of $480. Secakdembitmahbiiokeabdlosenthal, without A v 10:32 sl > 0 ' 9 20. The revocation of Clay's indigent status should not be examined alone. The raising of Clay's bond from $20,000 to $100,000 should also be considered in the context of Clay proceeding to trial pro se and his right to effective counsel. While this Court has maintained that the setting of bail is within the trial court's discretion, this Court has espoused factors which should be considered as guidelines when determining the amount of bail. They are here set forth: 1) Defendant's length of residence in the community; 2) His employment status and history and his financial condition; 3) His family ties and relationships; 4) His reputation, character and mental condition; 5) His prior criminal record, including any record of prior release on recognizance or on bail; 6) The identity of responsible members of the community who would vouch for defendant's reliability; 7) The nature of the offense charge and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and 8) Any other factors indicating the defendant's ties to the community or bearing on the risk of willful failure to appear. Shook v. State, 511 So.2d 1386, 1387 (Miss. 1987). The record clearly reveals that [757 So.2d 241] Judge Sanders considered none of these guidelines when she determined to raise Clay's bail. The only reason stated for raising the bail was that Judge Sanders did not want the case to "drag on and on and on." Judge Sanders got her wish. Clay proceeded to trial that day as a pro se defendant and was convicted after a two-day trial. -t ~ ~ 1. . 1 ~oa