FROM THE GREENE COUNTY CIRCUIT COURT [NO. 28CR-14-186]
HONORABLE BRENT DAVIS, JUDGE
TO WITHDRAW DENIED; REBRIEFING ORDERED
Caroline Wilson, for appellant.
Rutledge, Att'y Gen., by: Ashley Priest, Ass't
Att'y Gen., for appellee.
W. GRUBER, Chief Judge.
for Eric Lenderman has filed a no-merit brief and a motion to
withdraw as counsel in this case, purportedly filing his
brief pursuant to Anders v. California, 386 U.S. 738
(1967) and Arkansas Supreme Court Rule 4-3(k)(1) (2016).
Lenderman has filed a list of pro se points for reversal
pursuant to Rule 4-3(k)(2), and the State has submitted a
brief in response to the issues he has raised. We order
rebriefing because counsel's brief does not comply with
the requirements of Rule 4-3(k)(1).
October 3, 2014, the Circuit Court of Greene County accepted
appellant's negotiated plea of guilty to Class D felony
theft of a credit/debit card or account number, see
Ark. Code Ann. § 5-36-103(b)(3)(C), and to Class C
felony fraudulent use of a credit/debit card or account
number by obtaining moneys, goods, or services in a six-month
period valued at less than $25, 000 but more than $5, 000.
Ark. Code Ann. § 5-37-207(b)(2) (Repl. 2013). He was
sentenced to four years' supervised probation, subject to
written conditions. He was to report as directed to a
supervising officer and permit visits to his residence, place
of employment, or other property; notify the supervising
officer of address changes; pay $35 in monthly supervision
fees; make monthly restitution payments of $175, through the
sheriff's office, to the victim; and pay $50 each month
toward court costs and fees totaling $720.
December 2014 petition to revoke probation and an April 2015
supplemental petition, the State alleged that appellant had
not complied with certain conditions of his probation. At the
conclusion of a revocation hearing on November 2, 2015, the
circuit court found that appellant had violated multiple
conditions of his probation. The sentencing order entered on
the same date reflects that the court revoked appellant's
probation and imposed concurrent sentences of 72 months'
imprisonment for the theft of property and 72 months'
suspended imposition of sentence on the fraudulent use of a
no-merit brief to our court, counsel states that no
objections were raised by appellant during the hearing and
that the only "apparent issue" regards the
sufficiency of the evidence. The argument section of a
no-merit brief, however, must contain "a list of all
rulings adverse to the defendant . . . on all objections,
motions and requests made by either party with an
explanation as to why each ruling is not a meritorious ground
for reversal." Ark. Sup. Ct. R. 4-3(k)(1)
(2016)(emphasis added). Additionally, the rule requires that
the brief's abstract and addendum "shall contain . .
. all rulings adverse to the defendant" made by the
circuit court. Id. Generally speaking, if a no-merit
brief fails to address all adverse rulings, it will be sent
back for rebriefing. Sartin v. State, 2010 Ark. 16,
at 4, 362 S.W.3d 877, 880. The requirement for abstracting
and briefing every adverse ruling ensures that due-process
concerns are met and avoids the unnecessary risk of a
deficient Anders brief resulting in an incorrect
decision on counsel's motion to withdraw. Id. at
8, 362 S.W.3d at 882. Thus, a no-merit brief in a criminal
case that fails to address an adverse ruling does not satisfy
the requirements of Rule 4-3(k)(1) and must be rebriefed.
examination of the record in the present case reveals that
the circuit court sustained hearsay objections raised by the
State during appellant's testimony in the case for the
defense. Counsel has not abstracted these objections and
rulings; nor has he listed them or explained why the adverse
rulings do not constitute meritorious grounds for reversal.
We order rebriefing because of this deficiency.
is encouraged to review Anders v. California,
supra, and Rule 4-3(k)(1) for the requirements of a
no-merit brief. We also note that the statement of the case
in counsel's brief fails to include supporting page
references to the abstract or addendum, a briefing
requirement under Rule 4-2(a)(6), and that various portions
of the argument section fail to refer to pages of the
abstract or addendum,  as required by Rule 4-2(a)(7).
briefing deficiencies we have mentioned are not to be taken
as an exhaustive list. Counsel has fifteen days from the date
of this opinion to file a substituted brief that complies
with the rules. See Ark. Sup. Ct. R. 4-2(b)(3).
After the filing of the substituted brief, our clerk will
forward counsel's motion and brief to appellant so that,
within thirty days, he again will have the opportunity to
raise pro se points in accordance with Rule 4-3(k). The State
will likewise be given the opportunity to file a responsive
brief. Appellant and the State may elect instead to stand on
the original pro se points and responsive brief in this case.
to withdraw denied; ...