Buckley v. State ( 2014 )

Cite as 2014 Ark. App. 223ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-13-641
Opinion Delivered April 9, 2014
JOEL BUCKLEY APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2011-1798-1]
V.
HONORABLE WILLIAM A. STOREY,
JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED
ROBIN F. WYNNE, Judge
Joel Buckley appeals from his convictions for failure to appear and driving while
intoxicated (fourth offense). He argues on appeal that the trial court erred by allowing his
former attorney to testify regarding a conversation she had with appellant and by allowing
testimony at trial regarding a portable breath test administered by police. Due to deficiencies
in appellant’s abstract and addendum, we order rebriefing.
Appellant was charged with two counts of failure to appear and one count of driving
while intoxicated (fourth offense). Prior to trial, the State issued a subpoena to appellant’s
former attorney, Autumn Tolbert, directing her to testify at trial. Appellant filed a motion
to quash the subpoena, which was denied by the trial court. At trial, Ms. Tolbert testified that
she had advised appellant of a September 19, 2012 court date by telephone.
Officer Garrett Levine, who arrested appellant on suspicion of driving while
Cite as 2014 Ark. App. 223intoxicated, also testified at trial. Officer Levine testified that he had administered a horizontal
gaze nystagmus test to appellant prior to his arrest. He also testified, over appellant’s
objection, that he had administered a portable breath test to appellant.
The jury found appellant guilty of two counts of failure to appear and one count of
driving while intoxicated (fourth offense). He was sentenced to a total of 192 months’
imprisonment.1 This appeal followed.
Due to material deficiencies in both the abstract and the addendum submitted by
appellant, rebriefing is required. The appellant shall create an abstract of the material parts of
all the transcripts (stenographically reported material) in the record. Ark. Sup. Ct. R. 4-
2(a)(5) (2013). Information in a transcript is material if the information is essential for the
appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on
appeal. Id. Appellant’s abstract consists of only two pages. Missing from the abstract are large
portions of Officer Levine’s testimony regarding his reasons for arresting appellant. Given that
the State argues in the alternative in its responsive brief that any error possibly committed by
the trial court with regard to the testimony about the breath test administered by Officer
Levine was harmless in light of the other evidence presented, this testimony is necessary for
this court to decide the appeal. Also missing from the abstract is a material part of the
testimony by Ms. Tolbert.
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We note that, although the total time to be served reflected in the sentencing order
indicates that the sentences for all three offenses are to be served consecutively, the trial court
neglected to indicate in the order whether the sentence for the offense of driving while
intoxicated is to be served concurrently or consecutively to the sentences for the other
offenses.
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Cite as 2014 Ark. App. 223The addendum is missing certain necessary documents. The addendum shall contain
true and legible copies of the non-transcript documents in the record on appeal that are
essential for the appellate court to confirm its jurisdiction, to understand the case, and to
decide the issues on appeal. Ark. Sup. Ct. R. 4-2(a)(8) (2013). At trial, several documents
were submitted by the State as part of its proof on the failure-to-appear charges. Those
documents do not appear in the addendum.
Appellant shall file a substituted abstract, addendum, and brief within fifteen days of
the date of this opinion. The State will then have fifteen days to file a revised brief, if it elects
to do so. We encourage counsel, prior to filing the substituted brief, to review our rules to
ensure that the brief is in compliance with those rules.
Rebriefing ordered.
GRUBER and WOOD, JJ., agree.
David Hogue, for appellant.
Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellee.
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