James Wesley Johnson v. State of Arkansas

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James Wesley JOHNSON v. STATE of Arkansas

CR 97-144                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 30, 1998


1.   Appeal & error -- no-merit appeal -- abstract required. --
     Even in a "no merit" appeal, an abstract is required pursuant
     to Ark. Sup. Ct. R. 4-3(j)(1).

2.   Appeal & error -- abstract -- contents of. -- An abstract
     should consist of an impartial condensation of only such
     material parts of the pleadings, proceedings, facts,
     documents, and other matters in the record as are necessary to
     an understanding of all questions presented to the court for
     decision; at a minimum, abstracts of basic pleadings and court
     orders are necessary.

3.   Appeal & error -- abstract flagrantly deficient -- case
     affirmed. -- Where appellant's argument raised issues of
     ineffective assistance of counsel, and he questioned whether
     it was proper for the trial court to give him the hearing he
     apparently sought in federal court, yet his abstract contained
     neither his petition for relief nor the trial court's order
     denying it and said nothing further about the missing federal-
     court order, the supreme court could not reach the merits of
     the arguments; appellant's abstract was flagrantly deficient;
     the case was affirmed.

     Appeal from Pulaski Circuit Court; John Langston, Judge;
affirmed.
     Walter G. Riddick, III, for appellant.
     Winston Bryant, Att'y Gen., by:  Joseph V. Svoboda, Asst.
Att'y Gen., for appellee.

     David Newbern, Justice.
     James Wesley Johnson appeals from an order denying his
petition for postconviction relief under now-superseded Rule 36.4. 
The drug convictions that preceded the filing of the petition
occurred in May 1990 when Rule 36.4 was in effect.  We affirm as
Mr. Johnson's abstract is flagrantly deficient.  Ark. Sup. Ct. R.
4-2(a)(6).
     The brief filed on Mr. Johnson's behalf informs us that the
hearing conducted in the Trial Court was at the instance of an
order by a federal court purporting to free Mr. Johnson if he were
not given a hearing.  We cannot ascertain the terms of any such
order because it is not included in the record before us.  Mr.
Johnson's counsel characterizes this as a "no merit" appeal.  It
does not, however, comply with Ark. Sup. Ct. R. 4-3(j), which
provides that, when an appeal is perceived by counsel to be wholly
without merit, counsel may request to withdraw.  The Rule continues
as follows:

     A request to withdraw on the ground that the appeal is wholly
     without merit shall be accompanied by a brief including an
     abstract.  The brief shall contain an argument section that
     consists of a list of all rulings adverse to the defendant
     made by the trial 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 section of the brief shall contain, in addition
     to the other material parts of the record, all rulings adverse
     to the defendant made by the trial court.

Ark. Sup. Ct. R. 4-3(j)(1).
     Rather than follow the format described above, Mr. Johnson's
counsel has informed the Court that he does not feel at liberty to
withdraw from the case because of the federal-court order that we
have not seen, and he is presenting the arguments his client wishes
us to hear despite their lack of merit.
     Even if we were to treat this as a "no merit" appeal, an
abstract would be required.  Ark. Sup. Ct. R. 4-3(j)(1).  An
abstract "should consist of an impartial condensation ... of only
such material parts of the pleadings, proceedings, facts,
documents, and other matters in the record as are necessary to an
understanding of all questions presented to the Court for
decision."  Ark. Sup. Ct. R. 4-2(a)(5).  At a minimum, abstracts of
basic pleadings and court orders are necessary.  See King v. State,
325 Ark. 313, 925 S.W.2d 159 (1996); Edwards v. Neuse, 312 Ark.
302, 849 S.W.2d 479 (1993).  
     Mr. Johnson's argument raises issues of ineffective assistance
of counsel, and he questions whether it was proper for the Trial
Court to give him the hearing he apparently sought in the federal
court.  His abstract contains neither his petition for relief nor
the Trial Court's order denying it, to say nothing further about
the missing federal-court order.  The State has quoted portions of
the Trial Court's order in the argument section of its brief, but
it has not supplemented Mr. Johnson's abstract with the necessary
documents.  We, therefore, cannot reach the merits of Mr. Johnson's
arguments.   
     Affirmed.