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Cooper v. State

Court of Appeals of Arkansas, Division III

January 14, 2015

LARRY LEE COOPER, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT. NO. 23CR-11-331. HONORABLE CHARLES E. CLAWSON, JR., JUDGE.

MOTION TO WITHDRAW DENIED; REBRIEFING ORDERED; AND CLERK DIRECTED TO SERVE A COPY OF LARRY COOPER'S PRO SE POINTS ON THE ATTORNEY GENERAL'S OFFICE PURSUANT TO RULE 4-3(K)(3).

Lucas Law, PLLC, by: Molly Lucas, for appellant.

No response.

DAVID M. GLOVER, Judge. GLADWIN, C.J., and GRUBER, J., agree.

OPINION

Page 148

DAVID M. GLOVER, Judge.

On December 9, 2011, Larry Lee Cooper entered negotiated guilty pleas to the underlying offenses of attempted possession/intent to deliver a controlled substance, possession of drug paraphernalia, and driving with a suspended license. He was placed on probation. The State subsequently filed a petition to revoke, alleging that Cooper violated the terms and conditions of his probation by failing to report, failing to abstain from illegal substances, and failing to pay fines, fees, and court costs. Following the revocation hearing on October 3, 2013, the trial court revoked Cooper's probation and sentenced him to eighteen months in a regional correction facility, with an additional twenty-four months' suspended imposition of sentence. On October 16, 2013, Cooper filed a pro se " petition for appeal," even though he was still represented by his trial counsel.[1] A joint motion for substitution of counsel was subsequently filed and granted by our court. Substituted counsel has filed a motion to withdraw, accompanied by an abstract, brief, and addendum, asserting that an appeal in this matter would be wholly without merit. We deny the motion to withdraw and order rebriefing by Cooper's counsel. In addition, we direct our court clerk to serve a copy of Cooper's " points," and this opinion, on the Attorney General's Office pursuant to Rule 4-3(k)(3) for preparation and submission of a responsive brief.

The foundational authorities for seeking to withdraw from representation on the ground that an appeal is wholly without merit lie in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals. Because our court is receiving more and more Anders briefs that do not fully embrace the underlying rationale for allowing " no-merit" briefs and presenting them to

Page 149

this court, we take this opportunity to review the foundations.

In Anders, the United States Supreme Court was " concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." 386 U.S. at 739. The Court explained that the " constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae," and that the " no-merit letter[2] and the procedure it triggers do not reach that dignity." Id. at 744. The Court made clear, however, that " if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Id. at 744. The Court further explained:

A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their ...

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