Lenderman v. State

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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-224
ERIC LENDERMAN Opinion Delivered: January 18, 2017
APPELLANT
APPEAL FROM THE GREENE
V. COUNTY CIRCUIT COURT
[NO. 28CR-14-186]
STATE OF ARKANSAS HONORABLE BRENT DAVIS,
APPELLEE JUDGE
MOTION TO WITHDRAW DENIED;
REBRIEFING ORDERED
RITA W. GRUBER, Chief Judge
Counsel for Eric Lenderman has filed a no-merit brief and a motion to withdraw as
counsel in this case, purportedly filing his brief pursuant to Anders v. California, 386 U.S. 738
(1967) and Arkansas Supreme Court Rule 4-3(k)(1) (2016). Lenderman has filed a list of pro
se points for reversal pursuant to Rule 4-3(k)(2), and the State has submitted a brief in
response to the issues he has raised. We order rebriefing because counsel’s brief does not
comply with the requirements of Rule 4-3(k)(1).
On October 3, 2014, the Circuit Court of Greene County accepted appellant’s
negotiated plea of guilty to Class D felony theft of a credit/debit card or account number, see
Ark. Code Ann. § 5-36-103(b)(3)(C), and to Class C felony fraudulent use of a credit/debit
card or account number by obtaining moneys, goods, or services in a six-month period valued
at less than $25,000 but more than $5,000. Ark. Code Ann. § 5-37-207(b)(2) (Repl. 2013).
He was sentenced to four years’ supervised probation, subject to written conditions. He was
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to report as directed to a supervising officer and permit visits to his residence, place of
employment, or other property; notify the supervising officer of address changes; pay $35 in
monthly supervision fees; make monthly restitution payments of $175, through the sheriff’s
office, to the victim;1 and pay $50 each month toward court costs and fees totaling $720.
In a December 2014 petition to revoke probation and an April 2015 supplemental
petition, the State alleged that appellant had not complied with certain conditions of his
probation. At the conclusion of a revocation hearing on November 2, 2015, the circuit court
found that appellant had violated multiple conditions of his probation. The sentencing order
entered on the same date reflects that the court revoked appellant’s probation and imposed
concurrent sentences of 72 months’ imprisonment for the theft of property and 72 months’
suspended imposition of sentence on the fraudulent use of a credit card.
In his no-merit brief to our court, counsel states that no objections were raised by
appellant during the hearing and that the only “apparent issue” regards the sufficiency of the
evidence. The argument section of a no-merit brief, however, must contain “a list of all
rulings adverse to the defendant . . . on all objections, motions and requests made by either party with
an explanation as to why each ruling is not a meritorious ground for reversal.” Ark. Sup. Ct.
R. 4-3(k)(1) (2016)(emphasis added). Additionally, the rule requires that the brief’s abstract
and addendum “shall contain . . . all rulings adverse to the defendant” made by the circuit
court. Id. Generally speaking, if a no-merit brief fails to address all adverse rulings, it will be
sent back for rebriefing. Sartin v. State, 2010 Ark. 16, at 4, 362 S.W.3d 877, 880. The
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The victim was appellant’s grandmother.
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requirement for abstracting and briefing every adverse ruling ensures that due-process
concerns are met and avoids the unnecessary risk of a deficient Anders brief resulting in an
incorrect decision on counsel’s motion to withdraw. Id. at 8, 362 S.W.3d at 882. Thus, a
no-merit brief in a criminal case that fails to address an adverse ruling does not satisfy the
requirements of Rule 4-3(k)(1) and must be rebriefed. Id.
Our examination of the record in the present case reveals that the circuit court
sustained hearsay objections raised by the State during appellant’s testimony in the case for the
defense. Counsel has not abstracted these objections and rulings; nor has he listed them or
explained why the adverse rulings do not constitute meritorious grounds for reversal. We
order rebriefing because of this deficiency.
Counsel is encouraged to review Anders v. California, supra, and Rule 4-3(k)(1) for the
requirements of a no-merit brief. We also note that the statement of the case in counsel’s
brief fails to include supporting page references to the abstract or addendum, a briefing
requirement under Rule 4-2(a)(6), and that various portions of the argument section fail to
refer to pages of the abstract or addendum,2 as required by Rule 4-2(a)(7).
The briefing deficiencies we have mentioned are not to be taken as an exhaustive list.
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 appellant so that, within thirty days, he again
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For example, the argument section refers only to a page of the record, not of the
addendum, when reproducing an allegation in the State’s supplemental petition to revoke.
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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. Appellant 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 HIXSON, JJ., agree.
Caroline Wilson, for appellant.
Leslie Rutledge, Att’y Gen., by: Ashley Priest, Ass’t Att’y Gen., for appellee.
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