Allen v. State , 2015 Ark. App. 598 ( 2015 )

Cite as 2015 Ark. App. 598
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-14-866
Opinion Delivered October 21, 2015
GERALD JERMAINE ALLEN APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-13-467]
V.
HONORABLE RALPH WILSON,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED; MOTION TO
WITHDRAW GRANTED;
REMANDED WITH
INSTRUCTIONS TO CORRECT
SENTENCING ORDER
WAYMOND M. BROWN, Judge
A Crittenden County jury found appellant Gerald Allen guilty of aggravated assault,
and he was sentenced as a habitual offender to nine years’ imprisonment.1 Appellant’s counsel
has filed a motion to withdraw and a no-merit brief pursuant to Anders v. California2 and Rule
4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals. The clerk of this
court provided appellant with a copy of counsel’s brief and motion, and notified appellant of
1
Appellant was also charged with arson, but that charge resulted in a mistrial due to a
hung jury.
2
386 U.S. 738 (1967).
Cite as 2015 Ark. App. 598
his right to file pro se points for reversal. Appellant has not submitted any points for reversal.3
A request to be relieved as counsel on the ground that the appeal is wholly without
merit shall be accompanied by a brief including an abstract and addendum.4 The brief shall
contain an argument section that consists of a list of all rulings adverse to the defendant made
by the trial court with an explanation as to why each adverse ruling is not a meritorious
ground for reversal.5 It is imperative that counsel follow the appropriate procedure when
filing a motion to withdraw as counsel.6 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.7
From our review of the record and the brief presented to us, we hold that counsel has
complied with Rule 4-3(k)(1) and agree that there is no merit to an appeal. Therefore, we
affirm appellant’s conviction and grant counsel’s motion to withdraw. However, we note
that, in the sentencing order, the trial court indicated that appellant was found guilty by the
court and sentenced by the court. This was a jury trial, and the court accepted the jury’s
3
This is the second time this case has been before us. We initially denied counsel’s
motion to withdraw and ordered rebriefing due to deficiencies. Allen v. State, 2015 Ark. App.
415.
4
Ark. Sup. Ct. R. 4-3(k)(1).
5
Id.
6
Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004).
7
Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001).
2
Cite as 2015 Ark. App. 598
sentence recommendation. Therefore, we remand to the trial court with instructions to
correct the sentencing order.
Affirmed; motion to withdraw granted; remanded with instructions to correct
sentencing order.
ABRAMSON and HARRISON, JJ., agree.
S. Butler Bernard, Jr., for appellant.
No response.
3