Jacobs v. State

682 S.W.3d 15

2023 Ark. App. 554

Jimmy JACOBS, Appellant

v.STATE of Arkansas, Appellee

No. CR-23-156

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered December 6, 2023

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-18-63], HONORABLE JODI RAINES DENNIS, JUDGE

Tinsley & Youngdahl, PLLC, Little Rock, by: Jordan B. Tinsley, for appellant.

Tim Griffin, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.

BRANDON J. HARRISON, Chief Judge

₁This is a speedy-trial challenge, so the calendar and a dizzying number of dates (reader beware) play the pivotal roles. To state the bottom line up front, Jimmy Jacobs entered a conditional plea of guilty to three counts of kidnapping and now ap- peals the circuit court’s denial of his motion to dismiss on speedy-trial grounds. Our de novo review has revealed a total of 909 days that are not excluded for speedy-trial purposes. We therefore agree that his right to a speedy trial has been violated, and we vacate the convictions and dismiss the case.

On 31 January 2018, the State filed an information charging Jacobs, an inmate in the Arkansas Department of Correction (ADC), with three counts of kidnapping. The State alleged that on 7 August 2017, Jacobs and six other inmates held three ADC staff members hostage at the Tucker Maximum Security Unit.

₂On 7 February 2018, Jacobs appeared before the Jefferson County Circuit Court for his arraignment. The circuit court continued the matter until March 7 so that Jacobs could retain counsel and noted that "[t]he time between now and March the 7th goes to the defendant for speedy trial." The record shows that Jacobs was served with the arrest warrant on February 9, at which time the twelve-month period for bringing him to trial began to run.

On 7 March 2018, the circuit court appointed the public defender’s office to represent Jacobs and scheduled a trial date of 20 June 2018. The scheduling order did not indicate that the time between March 7 and June 20 was excluded for speedy-trial purposes. The public defender’s office later moved to be relieved as counsel because it represented Derrick Robertson, one of the other inmates. The circuit court granted the motion, and the Arkansas Public Defender Commission ultimately appointed Will Shelton, who entered his appearance as Jacobs’s attorney on 9 April 2018. Also on April 9, Jacobs’s counsel filed a motion for discovery.

The record reflects no further action in the case for a full year. On 10 April 2019, the State filed a response to Jacobs’s discovery motion. On 16 May 2019, over one year after its 7 March 2018 scheduling order and nine months after Jacobs’s scheduled trial date of 20 June 2018, the circuit court entered a scheduling order that noted a motion for continuance filed by "codefendant" Jordan Williams had been granted; therefore, the jury trial scheduled for 20 June 2018 had been rescheduled for 31 July 2019. The order also found that "the period of delay from June 20, 2018, until July 31, 2019, is excluded from the time calculated for speedy trial."

₃On 3 June 2019, Shelton moved for continuance and explained that he had a conflict with the 31 July 2019 trial date. On June 4, the circuit court granted the continuance and rescheduled the jury trial for 23 October 2019. The scheduling order noted that the delay from 31 July 2019 to 23 October 2019 was excluded from the time calculated for speedy trial.

Although Jacobs’s jury trial was scheduled for 23 October 2019, the record does not reflect any further activity in the case until 3 December 2019; on that date, the circuit court entered a scheduling order that stated, "The motion to continue filed by the Defendant has been granted. The Jury Trial scheduled for October 23, 2019, is rescheduled for May 21, 2020. … [T]he period of delay from October 23, 2019, until May 19, 2020, is excluded from the time calculated for speedy trial."

In February 2020, Shelton filed a motion to withdraw at Jacobs’s request. The motion explained that Jacobs had "clearly and unambiguously communicated that he does not want Mr. Shelton to represent him," On 30 March 2020, Shelton filed a second motion to withdraw and stated that had accepted a job with the Federal Public Defender’s Office in Little Rock and was winding down his private practice. The court granted the second motion the same day it was filed. It appears that Jacobs was without counsel from 30 March 2020 to 22 April 2020, when he moved to have Jordan Tinsley appointed as his new counsel.

Also on 22 April 2020, Jacobs filed a motion for continuance and asserted that Tinsley needed additional time to review the case, conduct discovery, negotiate with the State, and otherwise prepare for trial. The motion also noted that due to the coronavirus outbreak, the Arkansas Supreme Court had suspended all jury summons through June 2020. Jacobs ₄agreed to toll speedy trial for any delay attributable to the granting of the motion and noted that the supreme court had held that delays caused by the coronavirus outbreak are excludable from any speedy-trial calculation.

On 18 May 2020, the circuit court entered an order finding that due to the ongoing public health crisis, there was good cause to continue the case and toll speedy trial until the next available court date. The court continued the case from 21 May 2020 to 3 December 2020 and found that "[s]peedy trial and the nine-month rule, if applicable, are tolled from the date of this order until the next court date, pursuant to Arkansas Rule of Criminal Procedure 28.3(h)." On 2 December 2020, the circuit court entered a second continuance order due to the ongoing public health crisis and set the trial date as 17 June 2021.

On 25 May 2021, the circuit court entered a new scheduling order after explaining that a continuance motion from "codefendant" Larry Pitchford had been granted. The jury trial scheduled for 17 June 2021 was rescheduled for 12 January 2022. The order noted that the period of delay was excluded from the time calculated for speedy trial.

On 21 December 2021, Jacobs moved to sever his "codefendants’ " cases from his case. The motion explained that the allegations against him stem from an incident on 7 August 2017; that at least six other individuals had been charged in the same court with offenses that allegedly occurred during the incident; and that although there did not appear to be a formal order of joinder regarding the cases of his "codefendants," the court had treated the cases as such when adjudicating continuance motions made by the various defendants. Also on 21 December 2021, Jacobs moved to dismiss his case on speedy-trial grounds.

₅On 6 January 2022, the State responded to Jacobs’s motion to dismiss and generally argued that all of the continuances in the case had been entered due to requests by Jacobs, by his "codefendants," or due to preemptive public health and safety concerns caused by the COVID-19 pandemic.

On 22 June 2022, the circuit court convened a hearing at which the parties debated the issues of speedy trial and severance. Also on June 22, the State moved to split the seven defendants into two trials: one with defendants Jacobs, Jordan Williams, and Larry Pitchford; and a second trial with defendants Derrick Roberson, Floyd Brownlee, Andrew Robinson, and Christopher Williams. The motion claimed that "currently, all defendants are joined pursuant to Ark. R. Crim Pro 23.1 and set for trial on July 6, 2022."¹

On 28 June 2022, the circuit court entered an order of continuance from the scheduled 6 July 2022 trial date for six of the "codefendants" and explained that "codefendant" Floyd Brownlee’s case had been severed and would proceed as scheduled on July 6. Also on June 28, the court entered a scheduling order setting Jacobs’s new trial date for 14 November 2022. The order noted that the period of delay from 6 July 2022 to 14 November 2022 was excluded from the time calculated for speedy trial.

On 3 November 2022, the circuit court severed the trials for Jacobs and two other defendants from the remaining defendants. On November 7, the court summarily denied ₆Jacobs’s motion to dismiss for lack of speedy trial. One week later, Jacobs entered his conditional plea to the counts of kidnapping, and he received a sentence of fifteen years’ imprisonment.

Before we reach the merits of Jacobs’s argument on appeal, we first address the State’s arguments that Jacobs has failed to bring up a record sufficient to support de novo review, so this court should summarily affirm; and Jacobs failed to preserve his claims by raising contemporaneous objections below to the continuance orders.

[1] The State first contends that Jacobs’s failure to supply a docket sheet and "other documentation contemporaneous with the relevant orders tolling his speedy-trial time" leaves this court unable to reach the merits of his claim. It cites two cases in support of this contention. In Hoover v. State, 2022 Ark. App. 188, 643 S.W.3d 891, the defendant argued that one of the charges against him should be dismissed on speedy-trial grounds because the same charge had been previously nolle prossed, and the nolle prosse order had not indicated that it was dismissed for good cause. On appeal, this court held that we could not determine what happened below because

Hoover did not include in the record certain items that are pertinent to resolving his speedy-trial claim, including the docket sheet from the 2011 case; the motion for nolle prosequi; the transcript of the hearing on that motion (if there was one); or the order of nolle prosequi. Hoover has failed to bring up a record sufficient to demonstrate that he either made an objection to the lack of good cause when the State made a motion to nolle prosse or that he did not have the opportunity to do so.

Id. at 5, 643 S.W.3d at 894-95 (internal citations omitted).

In Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000), the defendant argued that the circuit court had erred in...