Robert S. Sweeney v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION ARKANSAS COURT OF APPEALS ANDREE LAYTON ROAF, Judge

DIVISION II

ROBERT S. SWEENEY

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR99-206

NOVEMBER 29, 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

CR98-627

HON. JOHN W. LANGSTON, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

This case is once more before us after we remanded it for rebriefing. Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000). Robert S. Sweeney was convicted in a bench trial of commercial burglary and was sentenced as a habitual offender to 120 months 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, Sweeney's counsel filed a motion to withdraw on the grounds that there are no meritorious issues that would support an appeal. This motion was accompanied by a brief in which alladverse rulings were abstracted and the argument section of the brief adequately explained why the adverse evidentiary rulings could not support a meritorious appeal. Missing from that brief, however, was any discussion of the evidence. In that brief, Sweeney's trial counsel had asserted that the issue was not preserved below due to a failure to make a directed verdict motion. In remanding, we noted that the supreme court did not amend Rule 33.1 of the Arkansas Rules of Criminal Procedure to require a specific directed-verdict motion in bench trials to preserve sufficiency of the evidence challenges for appellate review until April 8, 1999, and therefore, because Sweeney's trial was held on October 27, 1998, in accordance with Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995), a directed verdict motion was not required to preserve this issue.

Sweeney's trial counsel has now filed a supplemental brief in which he adequately discusses the sufficiency of the evidence. We hold that this supplemental brief satisfies the requirements of Rule 4-3 and Anders v. California, supra.

We note also that, pursuant to Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, the clerk of this court furnished Sweeney with a copy of his counsel's brief and notified him of his right to raise any points that he believed would support a merit appeal. Sweeney availed himself of this right, and asserted that he was denied his right of allocution and had ineffective assistance of counsel. Regarding the former point, it was not preserved for appeal by a contemporaneous objection. As to Sweeney's ineffective assistance of counsel claim, it is not cognizable on direct appeal unless it is first raised to the trial court, which Sweeney has failed to do. See Ark. R. Crim. P. 37.1; see also Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). Accordingly, any appeal on these points would be wholly frivolous.

Because Sweeney's trial counsel has now satisfied the requirements of Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals and the Anders procedural blueprint, we affirm the conviction and grant his motion to withdraw.

Affirmed; motion to withdraw granted.

Griffen and Pittman, JJ., agree.