Reynolds v. State , 2017 Ark. App. 397 ( 2017 )

Cite as 2017 Ark. App. 397
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-16-812
CHRISTOPHER SCOTT REYNOLDS Opinion Delivered June 21, 2017
APPELLANT
APPEAL FROM THE CLARK
COUNTY CIRCUIT COURT
V. [NO. 10CR-14-35]
HONORABLE ROBERT
McCALLUM, JUDGE
STATE OF ARKANSAS MOTION TO WITHDRAW DENIED;
APPELLEE REBRIEFING ORDERED
PHILLIP T. WHITEAKER, Judge
Appellant Christopher Reynolds was convicted by a Clark County jury of one count
of first-degree domestic battery and was sentenced to fourteen years’ imprisonment. Pursuant
to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules of the Arkansas
Supreme Court and Court of Appeals, Reynolds’s attorney has filed a motion to withdraw
as counsel on the ground that the appeal is wholly without merit. The motion is
accompanied by an abstract, brief, and addendum purporting to list all adverse rulings and
to explain why each adverse ruling is not a meritorious ground for reversal. Reynolds was
provided a copy of counsel’s brief and notified of his right to file a list of points within thirty
days; he filed pro se points, and the State filed a responsive brief. Because counsel has not
filed a brief that complies with Rule 4-3(k), however, we must order rebriefing at this time.
Cite as 2017 Ark. App. 397
Rule 4-3(k), which is based on Anders, sets forth the framework for constitutionally
permissible no-merit briefs. In order to satisfy Rule 4-3(k) and the framework set forth in
Anders, counsel is required to file an abstract and addendum of the proceedings below,
including all objections and motions decided adversely to appellant, and a brief in which
counsel explains why there is nothing in the record that would support an appeal. Jackson v.
State, 2015 Ark. App. 400, at 1–2 (citing Kou Her v. State, 2015 Ark. 91, at 2). Rule 4-3(k)(1)
states in pertinent part:
A request to withdraw on the ground that the appeal is wholly without merit
shall be accompanied by a brief including an abstract and Addendum. The brief shall
contain an argument section that consists of a list of all rulings adverse to the defendant made by
the circuit court on all objections, motions and requests made by either party with an explanation
as to why each adverse ruling is not a meritorious ground for reversal.
(Emphasis added.) A no-merit brief that fails to address an adverse ruling does not satisfy the
requirements of Rule 4-3(k)(1) and must be rebriefed. Jackson, 2015 Ark. App. 400, at 2
(citing Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877 (per curiam)).
In his brief, Reynolds’s counsel asserts that “the only rulings adverse to Appellant were
the court’s denial of his motion for directed verdict as to the charge of Domestic Battery 1st
Degree, and the Court’s denial of the use of Defendant’s proffered jury instruction, AMCI2d,
2610 . . . to include the definition of ‘under circumstances manifesting extreme indifference
to the value of human life.’” These rulings are appropriately addressed in counsel’s brief.
Our review of the record, however, reveals at least eight other adverse evidentiary
rulings during trial. Counsel properly abstracted these objections and adverse rulings, but he
did not discuss them in his brief. In addition, counsel failed to abstract a pretrial bond-
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Cite as 2017 Ark. App. 397
reduction hearing during which the court sustained the State’s three relevancy objections.
Evidentiary rulings must be abstracted and discussed. See Collier v. State, 2013 Ark. App. 119
(ordering rebriefing where two adverse evidentiary rulings were abstracted but not discussed
by counsel in appellant’s brief). Additionally, Reynolds filed an unsuccessful posttrial motion
for an appeal bond; although the order denying this motion is in the addendum, counsel does
not address it on appeal. This ruling must likewise be discussed in a no-merit brief. See Reed
v. State, 2013 Ark. App. 14 (ordering rebriefing where counsel failed to discuss the circuit
court’s refusal to approve an appeal bond) (citing Boen v. State, 2009 Ark. App. 535, 336
S.W.3d 883).
Counsel’s motion to withdraw must therefore be denied. Counsel is encouraged to
review Anders, supra, and Rule 4-3(k)(1) for the requirements of a no-merit brief. 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). After the filing of the substituted brief, our clerk will
forward counsel’s motion and brief to Reynolds so that, within thirty days, he again will have
the opportunity to raise pro se points in accordance with Rule 4-3(k). The State will likewise
be given the opportunity to file a responsive brief. Reynolds and the State may elect instead
to stand on the original pro se points and responsive brief in this case.
Motion to withdraw denied; rebriefing ordered.
VIRDEN and MURPHY, JJ., agree.
Gregory L. Vardaman, for appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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