Harris v. State , 2014 Ark. App. 5 ( 2014 )

Cite as 2014 Ark. App. 5
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-13-130
Opinion Delivered January 8, 2014
ROY MAURICE HARRIS APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2008-151]
V.
HONORABLE RANDY F.
PHILHOURS, JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED; MOTION
TO WITHDRAW DENIED
BRANDON J. HARRISON, Judge
Roy Harris was sentenced to seven years’ imprisonment after the Crittenden County
Circuit Court found that he had violated the conditions of his probation. On appeal, Harris’s
counsel argues that an appeal is wholly without merit and asks for permission to withdraw as
counsel. We deny counsel’s motion to withdraw and order rebriefing.
In an order entered 22 September 2008, Harris pleaded guilty to possession of a
controlled substance and was sentenced to five years’ probation. The conditions of his
probation required him to pay all fines and court costs as provided by the court’s judgment
and disposition order; to not use or possess any alcoholic beverage, marijuana, or other illegal
drug; to submit to drug testing as directed by his probation officer; to notify his probation
officer and the sheriff of any change of address or employment; and to procure suitable
employment.
Cite as 2014 Ark. App. 5
In January 2011, the State filed a petition to revoke Harris’s probation, alleging that
he had (1) failed to pay fines, costs, and fees as directed; (2) failed to report to his probation
officer; (3) failed to pay probation fees; (4) failed to notify the sheriff or his probation officer
of his current address and employment; (5) possessed and used marijuana; (6) failed to report
to Drug Assessment as ordered by his probation officer; (7) failed to work regularly at suitable
employment; (8) driven a motor vehicle with a suspended driver’s license; and (9) failed to
appear in district court. A hearing was held, at which the court heard testimony that Harris
had not made any payments on his fines and costs. Harris also admitted that he had recently
smoked marijuana.
The court found by a preponderance of the evidence that Harris had violated the
conditions of his probation, ordered him to spend two days in the Crittenden County
Detention Center, and deferred further sentencing until August 2011. At the next hearing,
held in November 2011, the court again postponed sentencing to give Harris a chance to
comply. The court sentenced him to thirty days in the Crittenden County Detention Center
and set a hearing date in April 2012. After Harris failed to appear at the next two scheduled
hearings, however, the court sentenced Harris to seven years’ imprisonment.
As allowed by Rule 4-3 of the Rules of the Arkansas Supreme Court and Court of
Appeals, Harris’s counsel has filed what is characterized as a no-merit brief and a motion
asking to be relieved as counsel. Harris has not filed points for reversal despite being notified
by the clerk of our court that he had thirty days to do so. The State has not filed a brief.
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A request to withdraw on the ground that the appeal is wholly without merit must be
accompanied by a brief, abstract, and addendum. Ark. Sup. Ct. R. 4-3(k)(1). Counsel’s brief
must contain an argument section that lists all the circuit court’s adverse rulings and explains
why each adverse ruling is not a meritorious ground for reversal. Id. To further protect the
constitutional rights of an appellant like Harris, both counsel and this court must fully examine
the lower court proceedings as a whole to determine if an appeal would be wholly frivolous.
Walton v. State, 94 Ark. App. 229, 228 S.W.3d 524 (2006).
We hold that counsel’s brief is deficient for several reasons. First, counsel has failed to
follow the “framework” for no-merit appeals or to cite Rule 4-3 in his brief. And while
counsel’s motion to withdraw does state that the appeal is “wholly without merit,” it cites
Rule 4-3(j), which governs the preparation of briefs for indigent appellants. Rule 4-3(k) is
the applicable rule. The brief also fails to meet the requirements of Rule 4-2, because
approximately ten pages of the abstract are presented in a question-and-answer format, which
is not allowed under Rule 4-2(a)(5)(B). A judicious use of the question-and-answer format
is permitted, but the abstract in this case crosses the line. Further, only one page of the two-
page order that sentenced Harris to thirty days’ imprisonment and delayed further sentencing
is included in the addendum.
Due to these deficiencies, we deny counsel’s motion to withdraw, and we remand for
rebriefing. Counsel has fifteen days from the date of this opinion to file a substituted brief that
complies with the rules. See Ark. Sup. Ct. R. 4-2(b)(3). The deficiencies we have noted
should not be considered as an exhaustive list, and counsel is encouraged to review Anders v.
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California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Arkansas Rules of the Supreme Court
and Court of Appeals for the requirements of a no-merit brief.
Rebriefing ordered; motion to withdraw denied.
GRUBER and WOOD, JJ., agree.
C. Brian Williams, for appellant.
No response.
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