FROM THE JEFFERSON C O U NT Y C IRC U IT C O U R T [NO.
35CR-15-246] HONORABLE BERLIN C. JONES, JUDGE
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, JUDGE
Jarmall Kelley appeals his conviction by a Jefferson County
Circuit Court jury of residential burglary, aggravated
assault, theft by receiving, and interference with custody.
Kelley previously submitted a merit brief that we sent back
for rebriefing in Kelley v. State, 2018 Ark.App.
299. In that opinion, we held that Kelley's brief failed
to provide an impartial condensation of the transcript in
that it omitted key testimony adverse to Kelley, and we noted
that "this abstracting deficiency appears to be
intentional" based on misleading arguments made in
reliance on the inaccurate abstract. Kelley, 2018
Ark.App. 299, at 2. Kelley's appointed counsel has now
filed a no-merit brief and a motion to be relieved pursuant
to Anders v. California, 386 U.S. 738 (1967). Kelley
has been notified of his right to file pro se points and has
not done so. Again, we cannot reach the merits of
Kelley's appeal because his counsel's no-merit brief
is flagrantly deficient. We therefore order rebriefing and
deny counsel's motion to withdraw.
supreme court has explained that the purpose and substance of
a brief in support of an attorney's motion to withdraw as
counsel where an appeal would be without merit is governed in
part by Anders and subsequent United States Supreme
Court cases. Sartin v. State, 2010 Ark. 16, at 3,
362 S.W.3d 877, 879-80. Pursuant to those cases, the purpose
of an Anders brief is both "to provide the
appellate courts with a basis for determining whether
appointed counsel have fully performed their duty to support
their clients' appeal to the best of their ability"
and to aid the court in its "critical determination
whether the appeal is indeed so frivolous that counsel should
be permitted to withdraw." McCoy v. Court of Appeals
of Wisconsin, 486 U.S. 429, 439 (1988). This framework
imposes two important duties on an appellate court faced with
an Anders brief. First, the court "must satisfy
itself that the attorney has provided the client with a
diligent and thorough search of the record for any arguable
claim that might support the client's appeal."
Penson v. Ohio, 488 U.S. 75, 83 (1988) (citing
McCoy, 486 U.S. at 442). Second, the court
"must determine whether counsel has correctly concluded
that the appeal is frivolous." Id. at 83.
fulfill the due-process safeguards necessary in no-merit
withdrawal cases, the Arkansas Supreme Court promulgated Rule
4-3, which requires that a brief accompanying an
attorney's request to withdraw from appellate
representation of a criminal defendant on the ground that the
appeal is wholly without merit 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. Gordon v. State,
2015 Ark. 191, at 2 (citing Ark. Sup. Ct. R. 4-3(k)(1)). In
the present case, counsel has identified six adverse rulings:
the court's denial of Kelley's motion for directed
verdict and five evidentiary rulings. Counsel has failed,
however, to sufficiently explain why each adverse ruling
would not present grounds for a meritorious appeal. For each
evidentiary ruling, counsel simply describes the circuit
court's ruling and provides a conclusory statement, such
as "[t]he Court was correct in its actions."
discussion of the adverse rulings fails to cite any
convincing legal authority or make substantive arguments as
to the merits of each issue. For example, in addressing the
circuit court's ruling that an audio recording of a 911
call could be played for the jury over Kelley's hearsay
objections because it was admissible under Arkansas Rule of
Evidence 803 as a business record, counsel simply states that
Rule 803 allows for the admission of business records, but he
fails to address whether the audio recording at issue
qualifies as such a record. In addressing the court's
decision to revoke Kelley's bond, counsel simply states
(without citation to authority) that "[t]he Court has
wide discretion in assuring the appearance of a defendant for
judicial proceeding," without analyzing the application
of that discretion to Kelley. "We cannot affirm an
appellant's conviction and allow an attorney to withdraw
without adequate discussion as to why a particular ruling by
the trial court should not be a meritorious ground for
reversal." Sartin, 2010 Ark. 16, at 4, 362
S.W.3d 877, 880 (citing Brady v. State, 346 Ark.
298, 302, 57 S.W.3d 691, 694 (2001); Mitchell v.
State, 327 Ark. 285, 286-87, 938 S.W.2d 814, 815
we note that the contents of the addendum fail to comply with
Arkansas Supreme Court Rule 4-2(a)(8)(A)(i), which plainly
requires an appellant to include in the addendum exhibits,
including computer disks, CDs, and DVDs, that are essential
for the appellate court to understand the case. Here, both
video and audio recordings were played for the jury. While
these recordings are attached to the record, they have not
been included in the addendum. These recordings are necessary
for us to review counsel's arguments regarding the
sufficiency of the evidence presented against Kelley.
Moreover, at least two of the evidentiary objections at issue
in this case related to the recordings. Therefore, copies of
these key pieces of evidence must be included in the
addendum. Lewis v. State, 2012 Ark.App. 540, at 1-2.
therefore again order rebriefing. Counsel's substituted
brief, abstract, and addendum are due within fifteen days
from the date of this decision. As is our practice, we
express no opinion as to whether the substituted brief should
be submitted pursuant to Rule 4-3(k) or on meritorious
grounds. Weaver v. State, 2014 Ark.App. 34, at 2-3.
If a no-merit brief is filed, counsel's motion to
withdraw and brief will be forwarded to Kelley by our clerk
so that, within thirty days, he will again have the
opportunity to raise any pro se points he so chooses. Ark.
Sup. Ct. R. 4-3(k)(2). Also, the State shall be afforded the
opportunity to file a responsive brief. Ark. Sup. Ct. R.
remind counsel of his duty to protect his client's
due-process rights by representing the client's appeal to
the best of his ability, and we caution counsel that repeated
future failures to comply with our rules will be referred to
the Committee on Professional Conduct.
ordered; motion ...