Cory v. State , 2014 Ark. App. 29 ( 2014 )

Cite as 2014 Ark. App. 29
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-13-180
Opinion Delivered January 15, 2014
CHRISTOPHER C. CORY APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-10-1108]
V.
HONORABLE JOHN N.
FOGLEMAN, JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED; MOTION
TO WITHDRAW DENIED
BRANDON J. HARRISON, Judge
On 30 September 2010, Christopher Cory pled guilty to theft by receiving and
received a sentence of thirty-six months’ probation. A petition to revoke his probation was
filed 6 August 2012, alleging failure to pay fines, costs, and fees as directed; failure to report
to probation as directed; failure to pay probation fees; and failure to notify sheriff and
probation of his current address and employment. After a hearing, his probation was revoked,
and he was sentenced to twenty-four months’ imprisonment and five years’ suspended
imposition of sentence. Cory’s counsel has filed a brief suggesting that there is no merit to
this appeal and that the revocation should be affirmed. We cannot reach the merits of this
appeal because counsel has deficiencies in his brief.
As allowed by Rule 4-3 of the Rules of the Arkansas Supreme Court and Court of
Appeals, Cory’s counsel has filed what is characterized as a no-merit brief and a motion asking
Cite as 2014 Ark. App. 29
to withdraw as counsel. A request to withdraw on the ground that the appeal is wholly
without merit must be accompanied by a brief including an abstract and addendum. Ark.
Sup. Ct. R. 4-3(k)(1). Counsel’s brief must contain an argument section that lists all the
circuit court’s adverse rulings and explains why each adverse ruling is not a meritorious
ground for reversal. Id. To further protect the constitutional rights of an appellant like Cory,
both counsel and this court must fully examine the lower court proceedings as a whole to
determine if an appeal would be wholly frivolous. Walton v. State, 94 Ark. App. 229, 228
S.W.3d 524 (2006).
We hold that counsel’s brief is deficient for several reasons. First, counsel has failed to
follow the “framework” for no-merit appeals or to cite Rule 4-3 in his brief. And while
counsel’s motion to withdraw does state that the appeal is “wholly without merit,” it cites
Rule 4-3(j), which governs the preparation of briefs for indigent appellants. Rule 4-3(k) is
the applicable rule. The brief also violates the requirements of Rule 4-2, which requires that
all material parts of the transcript in the record be abstracted (emphasis added). In this case,
the abstract contains portions that are not relevant to this appeal and are from an entirely
different case.
Due to these deficiencies, we deny counsel’s motion to withdraw, and we remand for
rebriefing. Counsel has fifteen days from the date of this opinion to file a substituted brief that
complies with the rules. See Ark. Sup. Ct. R. 4-2(b)(3). The deficiencies we have noted
should not be considered as an exhaustive list, and counsel is encouraged to review Anders v.
California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Arkansas Rules of the Supreme Court
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and Court of Appeals for the requirements of a no-merit brief.
Rebriefing ordered; motion to withdraw denied.
GRUBER and WOOD, JJ., agree.
C. Brian Williams, for appellant.
No response.
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