Ricky Justus v. State of Arkansas
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Ricky JUSTUS v. STATE of Arkansas
CACR05878
__ S. W.3d ___
Court of Appeals of Arkansas
Opinion delivered June 28, 2006
APPEAL & ERROR – MOTION TO WITHDRAW AS COUNSEL – LACK OF SUPPORTING CASE LAW DID
NOT RENDER APPELLANT’S ISSUE WHOLLY FRIVOLOUS.–In his motion to withdraw as counsel,
appellant’s attorney claimed that because he was unable to find any case law to support
appellant’s argument on appeal, the argument had no merit; the test is not whether there is
case law supporting appellant’s argument, but whether there is case law disposing of his
argument; the fact that appellant’s counsel was unable to find authority supporting appellant’s
sentencing claim did not render the issue wholly frivolous and the appellate court was
obligated to consider the issue on the merits; accordingly, the appellate court directed
appellant’s attorney to file a brief developing an adversarial presentation relating to
appellant’s argument and any others that counsel deemed appropriate.
Appeal from Garland Circuit Court; Edward T. Smitherman, Jr., Judge; motion to withdraw
denied; rebriefing ordered.
Patrick J. Benca, for appellant.
No response.
Appellant Ricky Justus was charged with false
imprisonment, theft of property, and domestic battery. On March 31, 2004, Justus entered
a plea of guilty as to all charges alleged. Included in his plea was an admission that the
LARRY D. VAUGHT, Judge.
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VAUGHT, J. 9
JUSTUS v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 2
domestic battery occurred in the presence of his sixyearold daughter. As a result of his plea
and admission, along with the fact that Justus had four or more prior felony convictions, he
faced a potential term of 130 years’ imprisonment in the Arkansas Department of Correction.
On April 6, 2005, a jury trial was held on the issue of sentencing. After hearing the evidence,
the jury imposed the maximum sentence. Judgment was entered on April 22, 2005, and a
timely notice of appeal was filed on May 17, 2005.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 43(j) of the Rules
of the Arkansas Supreme Court and Court of Appeals, Justus’s counsel filed a motion to
withdraw as counsel because “[t]here are no nonfrivolous issues that would support an
appeal in this case.” Counsel’s motion was accompanied by an abstract and brief purportedly
referring to everything in the record that might arguably support an appeal, a record of all
motions and requests made by Justus and denied by the court, and a statement of the reasons
why counsel considers none of these adverse rulings to be a meritorious ground for reversal.
The clerk of this court furnished Justus with a copy of his counsel’s brief and notified him
of his right to file a pro se brief. However, Justus did not file a brief. The State filed a letter
with the Court stating that it has no adversarial interest in this matter because Justus did not
file a pro se brief. From our review of the record and the brief presented to us, we find
compliance with Rule 43(j), but we cannot say that the appeal is wholly without merit.
Our concern centers on an argument that Justus made prior to the sentencing trial. In
relation to his status as a habitual offender, he argued that although he had three prior
convictions for breaking or entering (he consecutively broke into three automobiles in a Wal
Mart parking lot), the convictions should be consolidated because they all arose from the
same incident. In support of his position, Justus relied on Tackett v. State, 298 Ark. 20, 766
S.W.2d 410 (1989).
In Tackett, the appellant was involved in a motorvehicle accident that resulted in the
death of a passenger on the scene. Id. Another victim at the scene was injured and went into
a coma. Id. Appellant was charged with manslaughter as to the death of the passenger at the
scene and ultimately convicted. Id. His conviction was affirmed in Tackett v. State, 12 Ark.
App. 57, 670 S.W.2d 824 (1984). Almost four years later, the comatosed victim died from
her injuries. Her death resulted in a second charge of manslaughter. Tackett, 298 Ark. at 26,
766 S.W.2d at 413. At the second manslaughter trial, the court allowed introduction of the
first manslaughter charge to support a habitualoffender sentence enhancement. On appeal,
our supreme court found that this decision by the trial court was contrary to due process and
fundamental fairness and was not within the spirit of the Habitual Offender Act. Id.
In support of his motion to be relieved as counsel, Justus’s attorney distinguishes the
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VAUGHT, J. 9
JUSTUS v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 3
Tackett case, pointing out that Justus’s acts were not the result of a single impulse—that each
act was a “separate incident with separate victims.” He then noted that he was “unable to
locate any case law that supports [Justus’s] position before the trial court that several felonies
arising out of the same incident cannot be counted individually to support a habitual
allegation,” and “[f]or the foregoing reasons, this argument has no merit.”
Based on these statements we believe that a fundamental misunderstanding exists as
to what constitutes a meritless appeal. If indeed there is no case law that supports Justus’s
position—and we, like counsel, have found none—that does not render Justus’s appeal
“wholly without merit” or “wholly frivolous,” which are the standards we apply in nomerit
cases. Ofochebe v. State, 40 Ark. App. 92, 93, 844 S.W.2d 373, 374 (1992). Indeed, without
clear case law addressing Justus’s claim, it is impossible to meet the rigid Anders
requirements. The test is not whether there is case law supporting Justus’s argument, but
whether there is case law disposing of his argument.
The fact that Justus’s counsel was unable to find authority supporting Justus’s
sentencing claim does not render the issue wholly frivolous, and we are obligated to consider
the issue on its merits. Accordingly, we direct Justus’s attorney to file a brief developing an
adversarial presentation relating to Justus’s habitualoffender argument and any others that
counsel may deem appropriate.
Motion to Withdraw as Counsel is denied.
Rebriefing Ordered.
CRABTREE and BAKER, JJ., agree.
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VAUGHT, J. 9
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