FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-14-968]
HONORABLE CHARLES E. CLAWSON, JR., JUDGE.
ORDERED; MOTION TO WITHDRAW DENIED WITHOUT PREJUDICE.
C. Self, for appellant.
KENNETH S. HIXSON, Judge.
was convicted by a Faulkner County jury of three counts of
rape and was sentenced to serve a total of 900 months'
imprisonment. Appellant's attorney has filed a no-merit
brief and a motion to withdraw as counsel pursuant to
Arkansas Supreme Court Rule 4-3(k) (2016) and Anders v.
California, 386 U.S. 738 (1967), asserting that this
appeal is wholly without merit. The motion is accompanied by
an abstract and addendum of the proceedings below, alleged to
include all objections and motions decided adversely to
appellant, and a brief in which counsel explains why there is
nothing in the record that would support an appeal. The clerk
of this court mailed a copy of counsel's motion and brief
to appellant's last-known address informing him of his
right to file pro se points for reversal; however, he has not
done so. Consequently, the attorney general has not
filed a brief in response. However, counsel's no-merit
brief is not in compliance with Anders and Rule
4-3(k). Therefore, we order rebriefing and deny without
prejudice counsel's motion to withdraw.
imperative that counsel follow the appropriate procedure when
filing a motion to withdraw. Walton v. State, 94
Ark.App. 229, 228 S.W.3d 524 (2006). To further the goal of
protecting constitutional rights, it is both the duty of
counsel and of this court to perform a full examination of
the proceedings as a whole to decide if an appeal would be
wholly frivolous. Campbell v. State, 74 Ark.App.
277, 47 S.W.3d 915 (2001). Arkansas Supreme Court Rule 4-3(k)
provides in pertinent part,
Any motion by counsel for a defendant in a criminal or a
juvenile delinquency case for permission to withdraw made
after notice of appeal has been given shall be addressed to
the Court, shall contain a statement of the reason for the
request and shall be served upon the defendant personally by
first-class mail. A request to withdraw on the ground that
the appeal is wholly without merit shall be accompanied by a
brief including an abstract and Addendum. The brief shall
contain an argument section that consists of a list of all
rulings adverse to the defendant made by the circuit court on
all objections, motions and requests made by either party
with an explanation as to why each adverse ruling is not a
meritorious ground for reversal. The abstract and
Addendum of the brief shall contain, in addition to the other
material parts of the record, all rulings adverse to the
defendant made by the circuit court.
that counsel omits large portions of the record in the
abstract, including failure to abstract all adverse rulings
as required. Additionally, counsel failed to address all
adverse rulings in his argument and provide an explanation as
to why there is nothing in the record that would support an
appeal, as he is required to do. Rather than listing each
adverse ruling in chronological order, counsel categorizes
the related adverse rulings and provides a brief explanation
as to why each category of adverse rulings does not present a
meritorious ground for reversal. In doing so, counsel fails
to abstract and address at least two adverse rulings.
Specifically, the trial court denied appellant's motion
to excuse a potential juror during jury voir dire as
reflected in the record on pages 255-56. Additionally, during
trial, appellant objected to the admission of exhibit 22, and
the trial court admitted exhibit 22 into evidence, over
appellant's objection, as reflected in the record on
pages 376-77. In a criminal no-merit appeal, counsel is
required to abstract and discuss every adverse ruling, in
order to comply with Rule 4-3(k) and Anders,
supra, and we must order rebriefing if counsel fails
to do so. Sartin v. State, 2010 Ark. 16, 362 S.W.3d
877. Finally, we note that counsel's addendum fails to
include the State's pretrial response to appellant's
motion to suppress and any of the exhibits appellant objected
to at trial. Arkansas Supreme Court Rule 4-2(a)(8)(A) (2016)
requires that the addendum contain all relevant pleadings,
orders, documents, and exhibits in the record that are
essential to an understanding of the case. Sims v.
State, 2015 Ark.App. 11.
to Rule 4-2(b)(3), we afford appellant's counsel an
opportunity to cure these deficiencies. Counsel is directed
to file a substituted abstract, brief, and addendum within
fifteen days from the date of this opinion. The deficiencies
noted above should not be taken as an exhaustive list, and we
encourage counsel, prior to filing a substituted brief, to
carefully review Rules 4-2 and 4-3 to ensure that no
additional deficiencies exist. We express no opinion as to
whether the new appeal should address the merits or should be
made pursuant to Rule 4-3(k). Whittier v. State,
2015 Ark.App. 183. If a no-merit brief is filed,
counsel's motion and brief will be forwarded by the clerk
to appellant so that, within thirty days, he will again have
the opportunity to raise any points he chooses in accordance
with Rule 4-3(k)(2). In either instance, the State shall be
afforded the opportunity to file a brief in response. Cox
v. State, 2015 Ark.App. 132.
ordered; motion to withdraw denied without prejudice.
Gruber, C.J., and ...