Kimmons v. State , 2014 Ark. App. 713 ( 2014 )

Cite as 2014 Ark. App. 713
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-13-1094
MOSES A. KIMMONS Opinion Delivered December 17, 2014
APPELLANT
APPEAL FROM THE CRITTENDEN
V. COUNTY CIRCUIT COURT
[NO. CR-2010-752]
STATE OF ARKANSAS HONORABLE JOHN N.
APPELLEE FOGLEMAN, JUDGE
REBRIEFING ORDERED; MOTION
DENIED
RITA W. GRUBER, Judge
In June 2010, Moses A. Kimmons pleaded guilty to felon in possession of a firearm and
was sentenced to three years’ imprisonment in the Arkansas Department of Correction and
three years’ suspended imposition of sentence, subject to certain written conditions. The State
subsequently filed a petition to revoke, alleging that he had violated conditions including the
condition that he not possess a Schedule VI controlled substance. At the September 2013
revocation hearing, parole officer Chancey Rainey testified that Kimmons had pleaded guilty
in April 2013 to misdemeanor possession of marijuana. See Ark. Code Ann. § 5-64-215(a)(1)
(Supp. 2013) (listing marijuana as a Schedule VI controlled substance). The circuit court
found that Kimmons by his own admission had violated terms and conditions by possessing
marijuana. The court then granted the petition to revoke and sentenced Kimmons to thirty-
Cite as 2014 Ark. App. 713
six months’ imprisonment in the Arkansas Department of Correction.
As is allowed by Rule 4-3 of the Rules of the Arkansas Supreme Court and Court of
Appeals, Kimmons’s counsel brings a no-merit appeal and a motion asking to be relieved as
counsel. A copy of counsel’s brief and a letter notifying appellant of his right to file a list of
pro se points for reversal were sent by certified mail to Kimmons’s last known address, but the
packet was returned with a notation that the address did not exist. Counsel has no additional
contact information, and Kimmons has not filed points for reversal.
The argument section of counsel’s no-merit brief, despite fairly discussing the evidence
that supports the circuit court’s finding that Kimmons violated conditions, fails to discuss other
rulings that were adverse to Kimmons. We direct counsel’s attention to the requirement that
a no-merit argument must include “a list of all rulings adverse to the defendant made by the
circuit court . . . with an explanation as to why each adverse ruling is not a meritorious ground for
reversal.” Ark. R. Crim P. 4-3(k)(1) (emphasis added). See also Brady v. State, 346 Ark. 298,
302, 57 S.W.3d 691, 694 (2001) (stating that the appellate court “cannot affirm an appellant’s
conviction without any discussion as to why a particular ruling by the trial court should not
be meritorious grounds for reversal”). There are also deficiencies, or perhaps typographical
errors, in the addendum section of counsel’s brief: its table of contents refers to several
documents that do not comport with the record in this case, and the pagination of the
addendum includes two separate documents with identical pagination (the criminal-cost bill
and the petition for revocation).
The briefing deficiencies we have mentioned are not to be taken as an exhaustive list.
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Cite as 2014 Ark. App. 713
We direct counsel to familiarize himself with the requirements of Rule 4-3(k)(1) and the case
law we have cited. Counsel’s substituted brief, abstract, and addendum are due within fifteen
days from the date of this opinion. Ark. Sup. Ct. R. 4-2(b)(3) (2014). We express no opinion
as to whether the new appeal should address the merits or should be made pursuant to Rule
4-3(k)(1). If a no-merit brief is filed, counsel’s motion and brief will be forwarded by the clerk
to appellant so that, within thirty days, he again will have the opportunity to raise any points
he chooses in accordance with Ark. Sup. Ct. R. 4-3(k)(2). In either instance, the State shall
be afforded the opportunity to file a response brief.
Rebriefing ordered; motion denied.
GLOVER and BROWN, JJ., agree.
Gary J. Barrett, for appellant.
No response.
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