Jeff T. Walton v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR03-395

June 29, 2005

JEFF T. WALTON AN APPEAL FROM HOWARD

APPELLANT COUNTY CIRCUIT COURT

[CR02-15]

V. HON. CHARLES A. YEARGAN, JUDGE

STATE OF ARKANSAS REBRIEFING ORDERED; MOTION TO

APPELLEE WITHDRAW AS COUNSEL IS DENIED

Wendell L. Griffen, Judge

A Howard County jury convicted appellant Jeff Walton of delivery of crack cocaine and sentenced him to 360 months in the Arkansas Department of Correction. We have twice ordered rebriefing of this case. See Walton v. State, CACR 03-395 (Ark. App. Jan. 12, 2005) (not designated for publication); Walton v. State, CACR 03-395 (Ark. App. June 30, 2004) (not designated for publication). Appellant's attorney again petitions to withdraw as counsel. His motion was accompanied by a no-merit brief, pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j) (2004), wherein counsel contends that all rulings adverse to his client were abstracted and discussed. Appellant was provided a copy of this brief and was notified of his right to file pro se points for reversal. He subsequently filed a brief containing eight points for reversal. The State has filed a brief in response. For a third time, we must deny counsel's motion to withdraw and order rebriefing because counsel has failed to address all adverse rulings.

Rule 4-3(j) of the Rules of the Supreme Court requires:

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.) See also Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). It is imperative that counsel follow the appropriate procedure when filing a motion to withdraw as counsel. Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004). This framework is a "method of ensuring that indigents are afforded their Constitutional rights." Campbell v. State, 74 Ark. App. 277, 279, 47 S.W.3d 915, 917 (2001) (citing Smith v. Robbins, 528 U.S. 259 (2000)). In furtherance of 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. Id. If counsel fails to address all possible grounds for reversal, we can deny the motion to withdraw and order rebriefing. Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000).

Once again, counsel addressed several objections that he failed to address in his previous brief; however, he failed to address at least four adverse rulings. Appellant made a motion to voir dire potential jurors individually rather than as a group. This motion was denied but is neither abstracted nor addressed. Appellant called an individual to testify; however, that person was not allowed to testify. In his abstract, counsel states that the person did not testify "due to a misidentification of the parties." However, the record indicates that appellant still sought to elicit testimony from that witness. The trial court sustained the State's objection, and this objection is neither abstracted nor addressed. During the State's closing, appellant objected when the State argued, "He apologizes to an officer sitting behind him after calling him everything but a dog - a liar, and a criminal - that's what he calledSedric Reed." This objection is neither abstracted nor addressed. Finally, while counsel addresses appellant's motion for continuance during the hearing on the motion for new trial, counsel fails to address the new-trial motion itself other than briefly mentioning it in the course of discussing the motion for continuance.

It is counsel's duty to address all adverse rulings. On rebriefing, if counsel chooses to submit another no-merit brief, he should perform a full examination of the record and submit a brief wherein all adverse rulings are identified, fully abstracted, and explained why they are without merit. He is to address all adverse rulings, regardless of whether we identified that ruling for him or not. While it is this court's duty to fully examine the record to determine if an appeal would be wholly without merit, it is not our duty to do so with the purpose of instructing counsel what to include in a no-merit brief.

As counsel's brief once again fails to comply with the requirements of Anders v. California, supra, and Ark. Sup. Ct. R. 4-3(j), we deny counsel's motion to withdraw and order rebriefing.

Rebriefing ordered.

Glover and Roaf, JJ., agree.