Schmitt v. State , 2013 Ark. App. 489 ( 2013 )

Cite as 2013 Ark. App. 489
Susan Williams ARKANSAS COURT OF APPEALS
2018.12.27 DIVISION II
11:35:26 -06'00' No. CR-12-324
Opinion Delivered September 11, 2013
LAWRENCE SCHMITT APPEAL FROM THE BENTON
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-10-0783-1]
V.
HONORABLE ROBIN F. GREEN,
STATE OF ARKANSAS JUDGE
APPELLEE
REMANDED TO SUPPLEMENT
RECORD; REBRIEFING ORDERED;
MOTION TO WITHDRAW DENIED
WAYMOND M. BROWN, Judge
In April 2011, appellant Lawrence Schmitt pleaded guilty to twenty counts of
possession of child pornography, a Class C felony. On September 8, 2011, he was sentenced
in a separate proceeding before a jury to four years’ imprisonment and a fine of $1000 on each
count, with each sentence to run consecutively, for a total of eighty years’ imprisonment and
fines of $20,000. Pursuant to Anders v. California1and Arkansas Supreme Court Rule 4-3(k),
Schmitt’s counsel has filed a motion to withdraw on the grounds that an appeal would be
1
386 U.S. 738 (1967).
Cite as 2013 Ark. App. 489
wholly without merit.2 We deny counsel’s motion to withdraw, and we remand for
supplementation of the record and rebriefing.
In our prior opinion, we noted that counsel had failed to identify, abstract, and discuss
the circuit court’s denial of a defense motion for no prison sentence and a nominal fee. This
particular directed-verdict motion has been abstracted; however, counsel has failed to abstract
the renewal of the motion and the court’s denial. In the argument section concerning the
court’s denial of the motion, counsel states, “Forearmed with the knowledge that the Directed
Verdict Motion would be denied, Counsel raised the Directed Verdict motion only for the
purposes of preserving the case for appeal. It is renewed at the close of all evidence.” A
request to withdraw on the ground that the appeal is wholly without merit must be
accompanied by a brief that contains a list of all rulings adverse to appellant and an explanation
as to why each ruling is not a meritorious ground for reversal.3 Our supreme court has held
that the failure to abstract and discuss any adverse ruling in an Anders brief necessitates
rebriefing.4 Accordingly, we order rebriefing.
Although Schmitt pleaded guilty to, and was sentenced for, twenty counts of possession
of child pornography, the record contains jury-verdict forms only for Counts 2-20. The jury-
verdict form for Count 1 is not included in the record. This court can sua sponte direct that
2
This is the second time this case has been before us. We originally denied counsel’s
motion to withdraw and ordered rebriefing due to deficiencies in the abstract. Schmitt v. State,
2013 Ark. App. 20.
3
Ark. Sup. Ct. R. 4-3(k)(1) (2012).
4
Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877.
2
Cite as 2013 Ark. App. 489
this omission be corrected by filing a certified, supplemental record.5 Thus, we remand the
case to the circuit court to supplement the record. Schmitt has thirty days from today to file
a supplemental record.
Arkansas Supreme Court Rule 4-2(a)(8) requires that an appellant’s brief include an
addendum consisting of all documents essential to this court’s resolution of the issues on
appeal. The heading for what purports to be the jury-verdict form for Count 19 is missing.
The form has only a sentencing verdict without reference to the count. Schmitt needs to
include the complete sentencing verdict for Count 19 in his addendum. Additionally, once
the record is supplemented to include the missing jury-verdict form for Count 1, it, too, will
need to be placed in Schmitt’s addendum. Schmitt has fifteen days after the record is
supplemented to file a substituted abstract, brief, and addendum.6 We strongly encourage
counsel, prior to filing the substituted abstract, brief, and addendum, to review our rules as
well as the record and addenda to ensure that no other deficiencies are present.
Remanded to supplement record; rebriefing ordered; motion to withdraw denied.
GLOVER and WOOD, JJ., agree.
Herbert C. Southern, for appellant.
No response.
5
Ark. R. App. P.–Civ. 6(e) (as made applicable to criminal cases by Ark. R. App.
P.–Crim. 4(a)); see Moss v. State, 2010 Ark. App. 721.
6
Ark. Sup. Ct. R. 4-2(b)(3).
3