Jason Basham v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JASON BASHAM

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR04-963

JANUARY 11, 2006

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

[CR-2002-494-2]

HONORABLE GARY M. ARNOLD, CIRCUIT JUDGE

REBRIEFING ORDERED

Karen R. Baker, Judge

Jason Basham was convicted in a Saline County jury trial of first-degree terroristic threatening, second-degree sexual assault, second-degree battery, and rape. He was sentenced to a total of forty-four years' imprisonment in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on grounds that the appeal is without merit. Appellant has filed a no merit brief and a list of pro se points on appeal, and the State has filed a brief in response.

The brief accompanying an attorney's request to withdraw from appellate representation on the ground that the appeal is wholly without merit must contain a list of all rulings adverse to the defendant made by the trial court and an explanation as to why each adverse ruling does not constitute a meritorious ground for reversal. Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). In deciding whether to allow counsel to withdraw from appellate representation, the test 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. Id. Additionally, this court is bound 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) (quoting Anders, 386 U.S. at 744).

Appellant's counsel's motion was accompanied by an abstract and brief purportedly referring to everything in the record that might arguably support an appeal. Generally, we find that appellant's counsel has complied with Rule 4-3(j). However, based upon our review of the record and the law concerning the Arkansas Rules of Evidence, we have concluded that an argument on appeal addressing evidence of prior bad acts pursuant to Rule 404(b) would not be wholly frivolous. When an appeal is submitted to this court under the Anders format and we believe that an issue is not wholly frivolous, we are required to deny appellant counsel's motion to withdraw and order rebriefing in adversary form. Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994). Because counsel fails to demonstrate that an appeal from each of the adverse rulings would be wholly frivolous, we remand for rebriefing. See Skiver v. State, 330 Ark. 432, 954 S.W.2d 913 (1997).

Motion to Withdraw as Counsel Denied.

Rebriefing ordered.

Hart and Glover, JJ., agree.