APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-17-292]
HONORABLE BRAD KARREN, JUDGE
Tara
Ann Schmutzler, for appellant.
Leslie
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
BART
F. VIRDEN, JUDGE
A
Benton County jury convicted appellant Mario Lopez Perea,
Jr., of attempted sexual assault in the second degree. He was
sentenced as a habitual offender to twenty years'
imprisonment. Counsel has filed a no-merit brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and
Arkansas Supreme Court Rule 4-3(k), along with a motion to
withdraw. In accordance with Rule 4-3(k)(2), the clerk of
this court furnished Perea with a copy of counsel's brief
and informed him of his right to file pro se points for
reversal. Perea filed pro se points, and the State has
responded. Because counsel's no-merit brief does not
comply with Anders and Rule 4-3(k), we deny her
motion to withdraw and order rebriefing to give her an
opportunity to cure any deficiencies. We thus order counsel
to file a substituted abstract, addendum, and brief within
fifteen days of the date of this opinion.
I.
Procedural Background
Perea
was charged with second-degree sexual assault under Ark. Code
Ann. § 5-14-125(a)(1) (Supp. 2017), which provides that
a person commits sexual assault in the second degree if the
person engages in sexual contact with another person by
forcible compulsion. There were several pretrial hearings,
including arraignment hearings, an omnibus hearing, pretrial
status hearings, and a motions hearing. A jury trial was held
on December 11 and 12, 2017.
The
State introduced testimony by the victim, her grandfather,
and her mother. The State also presented the testimony of
several law enforcement officers, and a video of an interview
between police and Perea was played for the jury. After the
State rested, trial counsel moved for a directed verdict,
which was denied.
Perea
testified in his own defense. Trial counsel then renewed his
directed-verdict motion, which was again denied. The jury
found Perea guilty of the lesser-included offense of
attempted sexual assault in the second degree.
During
the sentencing phase, the trial court read a jury instruction
regarding Perea's habitual-offender status and then read
the four prior felony convictions into the record. There was
no objection by trial counsel. The State introduced
victim-impact statements, and Perea introduced two photos of
him with small children. The jury fixed Perea's sentence
at twenty years' imprisonment with no fine. The trial
court sentenced Perea in accordance with the jury's
verdict.
Trial
counsel, on Perea's behalf, filed a timely notice of
appeal from the conviction. Trial counsel's subsequent
motion to withdraw was granted, and appellate counsel was
appointed to represent Perea. Appellate counsel has filed a
motion to withdraw on the basis that the appeal is wholly
without merit.
II.
Counsel's No-Merit Brief
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. Ark. Sup. Ct. R. 4-3(k)(1). The brief
must contain an argument section that consists of a list of
all rulings adverse to the defendant made by the trial court
on all objections, motions, and requests with an explanation
as to why each adverse ruling is not a meritorious ground for
appeal. Id. In deciding whether to allow counsel to
withdraw from appellate representation, the test is not
whether counsel thinks the trial court committed no
reversible error, but rather whether the points to be raised
on appeal would be wholly frivolous. Eads v. State,
74 Ark.App. 363, 47 S.W.3d 918 (2001). We are required to
determine whether the case is wholly frivolous after a full
examination of all the proceedings. Vail v. State,
2019 Ark.App. 8.
Counsel
asserts that there were three adverse rulings, including the
denial of Perea's motion for a directed verdict; however,
...