McPherson v. State

Cite as 2017 Ark. App. 21
ARKANSAS COURT OF APPEALS
DIVISION IV
No.CR-16-108
Opinion Delivered: January 18, 2017
JAMES LEE MCPHERSON APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT
[NO. 23CR-14-968]
V.
HONORABLE CHARLES E.
CLAWSON, JR., JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED; MOTION
TO WITHDRAW DENIED WITHOUT
PREJUDICE
KENNETH S. HIXSON, Judge
Appellant was convicted by a Faulkner County jury of three counts of rape and was
sentenced to serve a total of 900 months’ imprisonment. Appellant’s attorney has filed a
no-merit brief and a motion to withdraw as counsel pursuant to Arkansas Supreme Court
Rule 4-3(k) (2016) and Anders v. California, 386 U.S. 738 (1967), asserting that this appeal
is wholly without merit. The motion is accompanied by an abstract and addendum of the
proceedings below, alleged to include 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. The clerk of this court mailed a copy of counsel’s motion and
brief to appellant’s last-known address informing him of his right to file pro se points for
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reversal; however, he has not done so.1 Consequently, the attorney general has not filed a
brief in response. However, counsel’s no-merit brief is not in compliance with Anders and
Rule 4-3(k). Therefore, we order rebriefing and deny without prejudice counsel’s motion
to withdraw.
It is imperative that counsel follow the appropriate procedure when filing a motion
to withdraw. Walton v. State, 94 Ark. App. 229, 228 S.W.3d 524 (2006). To further the
goal of protecting constitutional rights, it is both the duty of counsel and of this court to
perform a full examination of the proceedings as a whole to decide if an appeal would be
wholly frivolous. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001). Arkansas
Supreme Court Rule 4-3(k) provides in pertinent part,
Any motion by counsel for a defendant in a criminal or a juvenile delinquency case
for permission to withdraw made after notice of appeal has been given shall be
addressed to the Court, shall contain a statement of the reason for the request and
shall be served upon the defendant personally by first-class mail. 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. The abstract and
Addendum of the brief shall contain, in addition to the other material parts of the
record, all rulings adverse to the defendant made by the circuit court.
(Emphasis added.)
We note that counsel omits large portions of the record in the abstract, including
failure to abstract all adverse rulings as required. Additionally, counsel failed to address all
adverse rulings in his argument and provide an explanation as to why there is nothing in the
1
The packet was mailed to appellant by certified mail, and a return receipt indicates
that delivery was accepted.
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record that would support an appeal, as he is required to do. Rather than listing each adverse
ruling in chronological order, counsel categorizes the related adverse rulings and provides a
brief explanation as to why each category of adverse rulings does not present a meritorious
ground for reversal. In doing so, counsel fails to abstract and address at least two adverse
rulings. Specifically, the trial court denied appellant’s motion to excuse a potential juror
during jury voir dire as reflected in the record on pages 255–56. Additionally, during trial,
appellant objected to the admission of exhibit 22, and the trial court admitted exhibit 22
into evidence, over appellant’s objection, as reflected in the record on pages 376–77. In a
criminal no-merit appeal, counsel is required to abstract and discuss every adverse ruling, in
order to comply with Rule 4-3(k) and Anders, supra, and we must order rebriefing if counsel
fails to do so. Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877. Finally, we note that counsel’s
addendum fails to include the State’s pretrial response to appellant’s motion to suppress and
any of the exhibits appellant objected to at trial. Arkansas Supreme Court Rule 4-2(a)(8)(A)
(2016) requires that the addendum contain all relevant pleadings, orders, documents, and
exhibits in the record that are essential to an understanding of the case. Sims v. State, 2015
Ark. App. 11.
Pursuant to Rule 4-2(b)(3), we afford appellant’s counsel an opportunity to cure
these deficiencies. Counsel is directed to file a substituted abstract, brief, and addendum
within fifteen days from the date of this opinion. The deficiencies noted above should not
be taken as an exhaustive list, and we encourage counsel, prior to filing a substituted brief,
to carefully review Rules 4-2 and 4-3 to ensure that no additional deficiencies exist. We
express no opinion as to whether the new appeal should address the merits or should be
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made pursuant to Rule 4-3(k). Whittier v. State, 2015 Ark. App. 183. If a no-merit brief is
filed, counsel’s motion and brief will be forwarded by the clerk to appellant so that, within
thirty days, he will again have the opportunity to raise any points he chooses in accordance
with Rule 4-3(k)(2). In either instance, the State shall be afforded the opportunity to file a
brief in response. Cox v. State, 2015 Ark. App. 132.
Rebriefing ordered; motion to withdraw denied without prejudice.
GRUBER, C.J., and VIRDEN, J., agree.
Joseph C. Self, for appellant.
No response.
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