Thompson v. State , 2014 Ark. 79 ( 2014 )

Cite as 2014 Ark. 79
SUPREME COURT OF ARKANSAS
No. CR-13-438
EDWARD LEE THOMPSON III Opinion Delivered FEBRUARY 20, 2014
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
V. [NO. CR-2012-749]
STATE OF ARKANSAS HONORABLE BARRY SIMS,
APPELLEE JUDGE
REBRIEFING ORDERED.
PER CURIAM
A jury found Appellant Edward Lee Thompson III guilty of first-degree murder,
aggravated robbery, felony theft of property, and misdemeanor theft of property and
sentenced him, respectively, to life imprisonment, fifty years’ imprisonment, and forty years’
imprisonment in the Arkansas Department of Correction, as well as one year in the Pulaski
County jail. The court ordered the term-of-year sentences to run concurrently with the life
sentence.
A timely notice of appeal was filed, and the attorney appointed to represent Appellant
on appeal has filed a motion to withdraw as counsel and a no-merit brief. The requirements
for withdrawal of counsel for a defendant in a criminal case after a notice of appeal has been
filed on the basis that an appeal is without merit are set forth in Anders v. California, 386 U.S.
738 (1967), and Arkansas Supreme Court Rule 4-3(k) (2013). In accordance with Rule 4-
3(k)(2), our clerk furnished Appellant with a copy of the no-merit brief filed by counsel.
Cite as 2014 Ark. 79
Appellant submitted a pro se response, setting forth issues that he believed warranted a reversal
of his conviction, and the State has responded. Because Appellant received a sentence of life
imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2013).
At this time, we stay appellate counsel’s motion to withdraw and order rebriefing because he
has failed to fully comply with the requirements of Anders and our Rule 4-3(k).
In his no-merit brief to this court, appellate counsel has listed five rulings decided
adversely to Appellant and set forth reasons why those rulings provide no basis for a
meritorious appeal. However, in setting forth the final adverse ruling, which concerned the
issue of whether Appellant could be found guilty of either aggravated robbery or robbery,
appellate counsel misconstrues the nature of trial counsel’s objection and, as a result, does not
properly address whether that issue indeed lacks merit. As a result, we must order rebriefing
in the present case because the brief submitted by appellate counsel is inadequate. See Sartin
v. State, 2010 Ark. 16, 362 S.W.3d 877.
Further, because we order rebriefing on the verdict issue, we direct appellate counsel
to address an additional issue that has come to the court’s attention in reviewing the record.
Specifically, the record reveals that the circuit court engaged in an ex-parte communication
with a juror during the course of the trial. Although the record is silent as to whether an
objection was raised, we believe that it is necessary for appellate counsel to address whether
this issue provides any meritorious basis for appellate review.
Counsel’s substituted brief, abstract, and addendum are due within fifteen days from
the date of our decision. Ark. Sup. Ct. R. 4-2(b)(3) (2013). By this ruling, we do not
2
Cite as 2014 Ark. 79
express any opinion as to whether the new brief should be filed pursuant to Rule 4-3(k)(1)
or should be filed asserting meritorious grounds for reversal. If a no-merit brief is filed,
counsel’s motion and brief will be forwarded by our clerk to Appellant so that, within thirty
days, he will again have the opportunity to raise any points he so chooses in accordance with
Rule 4-3(k)(2). In either instance, the State shall be afforded the opportunity to file a
responsive brief.
Benca & Benca, by: Patrick J. Benca, for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
3