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Perea v. State

Court of Appeals of Arkansas

June 5, 2019

MARIO LOPEZ PEREA, JR.APPELLANT
v.
STATE OF ARKANSASAPPELLEE

          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, ...


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