Rimmer v. State , 2014 Ark. App. 30 ( 2014 )

Cite as 2014 Ark. App. 30
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-222
Opinion Delivered January 15, 2014
MARCUS A. RIMMER
APPELLANT APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
V. [NO. CR-2011-210]
HONORABLE JOHN N.
STATE OF ARKANSAS FOGLEMAN, JUDGE
APPELLEE
REBRIEFING ORDERED; MOTION
TO WITHDRAW DENIED
ROBIN F. WYNNE, Judge
As permitted by Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court
of Appeals, appellant Marcus Rimmer’s attorney has filed a no-merit brief and a motion to
withdraw as counsel. We order rebriefing and deny the motion to withdraw.
In August 2011, Rimmer pled guilty to possession of pseudoephedrine with intent to
manufacture methamphetamine, a Class D felony, and was sentenced to two years’ probation,
subject to certain written conditions. He was also fined $750 and assessed various costs and
fees, for a total payment amount of $1395, to be paid in monthly installments of $75
beginning September 11, 2011. In April 2012, the State filed a petition for revocation of
Rimmer’s probation, alleging that he violated the conditions of his probation by 1) failing
to pay as directed, 2) failing to report to probation as directed, 3) failing to pay probation
fees, 4) failing to notify the sheriff of his current address and employment, and 5) departing
Cite as 2014 Ark. App. 30
from his approved residence without permission. After a July 5, 2012 revocation hearing,
the circuit court found that Rimmer had violated the conditions of his probation and
sentenced him to three years in the Arkansas Department of Correction upon revocation,
with all fines and costs on this charge satisfied.
In the brief submitted to this court, counsel fails to cite Anders v. California, 386 U.S.
738 (1967), or Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of
Appeals.1 Counsel also fails to state the standard of review applicable to Anders briefs. Our
standard in determining whether to relieve an attorney from a non-meritorious appeal is not
whether counsel thinks the trial court committed no reversible error, but rather whether the
points to be raised on appeal would be “wholly frivolous.” Eads v. State, 74 Ark. App. 363,
47 S.W.3d 918 (2001). This court has recently written the following in a case in which this
counsel submitted a noncompliant Anders brief:
We once again direct counsel to thoroughly familiarize himself with the
requirements of Rule 4-3(k)(1) and how a no-merit argument is to be presented on
appeal. Further, we emphasize that, at a minimum, counsel “should both acquaint
himself with the framework found in Anders for no-merit criminal briefs and include
the Anders citation in his brief.” Soto v. State, 2013 Ark. App. 619, at 2. Additionally,
counsel shall cite and follow the appropriate standard of review relating to no-merit
appeals.
Any appeals received from counsel that fail to strictly comply with this mandate
regarding no-merit briefs will be uniformly returned for rebriefing and the
accompanying motion to withdraw as counsel will be denied.
Hollins v. State, 2013 Ark. App. 695, at 2. Accordingly, we order counsel to submit a
substituted brief within fifteen days of this opinion. Ark. Sup. Ct. R. 4-2(b)(3) (2013). We
express no opinion as to whether the new appeal should be made pursuant to Rule 4-3(k)(1)
1
Counsel incorrectly cites Rule 4-3(j) in his motion to withdraw.
2
Cite as 2014 Ark. App. 30
or should be on meritorious grounds. 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 again will have the
opportunity to raise any points he so 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 responsive brief.
Rebriefing ordered; motion to withdraw denied.
HIXSON and BROWN, JJ., agree.
C. Brian Williams, for appellant.
No response.
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