Mister v. State

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SUPREME COURT OF ARKANSAS
No. CR-13-294
Opinion Delivered April 10, 2014
APPEAL FROM THE SEBASTIAN
SHARVELT MARQUETTE MISTER COUNTY CIRCUIT COURT, FORT
APPELLANT SMITH DISTRICT
[NOS. CR-2000-1053, CR-2001-
238/239, CR-2007-953/969E]
V.
HONORABLE STEPHEN MERRILL
TABOR, JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED.
PER CURIAM
After the circuit court revoked appellant Sharvelt Marquette Mister’s suspended
sentences for controlled-substance convictions, the court sentenced him to a total of 57 years’
imprisonment. The Arkansas Court of Appeals affirmed the circuit court’s decision. Mister v.
State, 2012 Ark. App. 375. Following the affirmance, Mister filed with the circuit court a
petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal
Procedure. After a hearing, the circuit court denied the petition, and Mister now appeals.
Because Mister’s brief does not comply with Arkansas Supreme Court Rules 4-2(a)(5) and (8)
(2013), we are unable to reach the merits of Mister’s appeal. Accordingly, we order rebriefing.
For his first claim of ineffective assistance of counsel, Mister argues that, even though
the State had indicated on two plea offers made to him that he had a sentencing exposure of
117 years’ imprisonment, he “did not understand,” that his trial counsel “never explained to
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him the extent of his exposure or how the State determined the exposure was 117 years,” and
that his trial counsel “could not explain it to appellant since he did not understand.” Mister
asserts that had he been aware of the extent of his exposure to 117 years’ imprisonment, he
would have accepted one of the plea offers. Second, Mister asserts that trial counsel was
ineffective because he misled him into believing that there had been a plea offer of 20 years,
and that he relied on the misrepresentation, accepted the alleged plea offer, and expected to
enter a plea on the day of the hearing instead of facing a trial. Mister alleges that his trial
counsel “never told him he was going to trial and never prepared for trial.”
Arkansas Supreme Court Rule 4-2(a)(8) provides that the “addendum shall contain
true and legible copies of the non-transcript documents in the record on appeal that are
essential” for this court “to confirm its jurisdiction, to understand the case, and to decide the
issues on appeal.” During the Rule 37.1 hearing, twenty-three exhibits related to the plea
offers and other matters were introduced into evidence by the State. None of these exhibits
were included in Mister’s addendum (though the State provided a copy of one of these
exhibits in its supplemental addendum). Also, the addendum does not include copies of the
judgment and commitment order relating to the revocation or the judgment and commitment
orders setting out appellant’s sentencing exposure upon revocation, all of which are found in
the record in Mister v. State, 2012 Ark. App. 375. Without having these items in the
addendum, it is difficult to follow Mister’s arguments; they must be included in the
addendum.
Further, Arkansas Supreme Court Rule 4-2(a)(5) provides that “the appellant shall
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create an abstract of the material parts of all the transcripts (stenographically reported material)
in the record.” Rule 4-2(a)(5) also provides that “[i]nformation in a transcript is material if
the information is essential for the appellate court to confirm its jurisdiction, to understand
the case, and to decide the issues on appeal.” Insofar as Mister argues that trial counsel’s efforts
at the revocation hearing were ineffective, an abstract of the revocation hearing is necessary,
the transcript of which is found in the record in Mister v. State, 2012 Ark. App. 375.
Given the difficulty in assessing Mister’s argument without these missing items, we
order rebriefing. In accordance with Arkansas Supreme Court Rule 4-2(b)(3), Mister is
directed to file with our clerk within fifteen days from the date of this per curiam a substituted
abstract, addendum, and brief that complies with our rules. After service of the substituted
brief, the State shall have an opportunity to file a responsive brief in the time prescribed by
the Supreme Court Clerk, or to rely on the brief that was previously filed in this appeal.
While we have noted the above-mentioned deficiencies, we encourage Mister’s counsel to
review our rules and the records to ensure that no additional deficiencies are present. Failure
to timely correct the deficiencies may result in the judgment of the circuit court being
affirmed for noncompliance with our rules. Ark. Sup. Ct. R. 4-2(c)(2).
Rebriefing ordered.
Andrew Vess, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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