FROM THE NEVADA COUNTY CIRCUIT COURT [NOS. 50CR-16-121,
50CR-16-122, 50CR-16-123, AND 50CR-16-124] HONORABLE RANDY
C. Self, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
W. GRUBER, Chief Judge
Timmy Dale Jester was convicted by a jury on one count of
rape in violation of Ark. Code Ann. § 5-14-103 and three
counts of sexual assault in the second degree in violation of
Ark. Code Ann. § 5-14-125. He was sentenced to 300
months' imprisonment for the rape conviction and 60
months' imprisonment on each of the sexual-assault
convictions. The circuit court ordered the sentence for the
rape conviction to run consecutively to one of the sentences
for sexual assault, and the other two sexual-assault
sentences were to run concurrently with those sentences.
to Anders v. California, 386 U.S. 738 (1967), and
Rule 4-3(k)(1) (2017) of the Rules of the Arkansas Supreme
Court and Court of Appeals, appellant's attorney has
filed a no-merit brief and a motion to withdraw, arguing that
this appeal is without merit. The motion is accompanied by an
abstract and addendum of the proceedings below, purporting to
include "all of the motions made which were denied,
" and a brief in which counsel explains why there is
nothing in the record that would support an appeal. Appellant
has filed pro se points for reversal, and the State has 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.
4-3(k)(1) requires that the argument section of a no-merit
brief contain "a list of all rulings adverse to the
defendant made by the circuit court on all objections . . .
with an explanation as to why each . . . is not a meritorious
ground for reversal" and that "the abstract and
addendum of the brief shall contain . . . all rulings adverse
to the defendant." Ark. Sup. Ct. R. 4-3(k)(1). Generally
speaking, if a no-merit brief fails to address all the
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 the due-process concerns in
Anders are met and prevents the unnecessary risk of
a deficient Anders brief resulting in an incorrect
decision on counsel's motion to withdraw.
Sartin, 2010 Ark. 16, at 8, 362 S.W.3d at 882. For
these reasons, 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 rebriefing will be
review of the record reveals at least two adverse rulings
that were neither abstracted nor argued by counsel. For
example, page 682 of the record reflects that, during trial,
the court sustained the State's objection based on
leading the witness. On page 66 of the supplemental record,
appellant's counsel objected on the ground of leading
during the posttrial hearing to which the court responded,
"A little leading is allowed." In addition,
counsel's abstract in both the paper copies and the
electronic copy is missing page 68, which is also referenced
in counsel's argument. Due to deficiencies, we deny
counsel's motion to withdraw and order rebriefing.
note that counsel has argued why the denial of the
directed-verdict motion is not a meritorious ground for
reversal, suggesting that the victims' testimony alone
would be sufficient to support the convictions. However, counsel
has failed to point to any specific testimony of the victims
to support each conviction. The court's instructions to
the jury as to each of the five counts charged, which
identifies each victim, are not included in the abstract and
would be helpful for our review of this argument.
deficiencies we have noted should not be considered an
exhaustive list, and counsel is strongly encouraged to review
Anders, supra, and Rule 4-3(k) of the
Arkansas Rules of the Supreme Court and Court of Appeals for
the requirements of a no-merit brief. 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 counsel has filed the substituted
brief, our clerk will forward counsel's motion and brief
to appellant, and he will have 30 days within which to raise
additional pro se points in accordance with Rule 4-3(k). The
State will likewise be given an opportunity to file a
responsive brief if further pro se points are made. Appellant
and the State may elect to stand on the original pro se
points and responsive brief in this case.
to withdraw denied; rebriefing ordered.
Harrison and Brown, JJ., agree.