Cannon v. State , 58 Ark. App. 182 ( 1997 )

Terry Crabtree, Judge.

Appellant Karsten Cannon appeals his conviction of delivery of a controlled substance for which he was sentenced to 240 months’ incarceration. On appeal, appellant argues that the judgment should be reversed because he was forced to appear in court in prison garb, because the trial court admitted a lab report in violation of the controlling statute, and because the evidence was insufficient to support the verdict.

We affirm the judgment on the basis that appellant’s abstract is flagrantly deficient. Appellant did not abstract the judgment and commitment order, the jury’s verdict, the sentencing before the court, or the notice of appeal. One must go to the record to determine of what crime appellant was convicted and whether he timely filed a notice of appeal. Pursuant to Ark. R. Sup. Ct. 4-2(a)(6) and case law interpreting the rule, appellant’s abstract is inadequate for us to reach the merits of his appeal. The following language from King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996), is informative on the effect of faffing to abstract pertinent pleadings:

We have often held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995). This court does not presume error simply because an appeal is made. Mayo v. State, 324 Ark. 322, 920 S.W.2d 843 (1996). It is the appellant’s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994).

Id. at 315, 925 S.W.2d at 160.

We are aware of the recent decision by the Supreme Court, Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997), in which the appellants failed to abstract the judgment and commitment order, and the supreme court still chose to address the merits. In Williams, the court stated:

We choose not to declare Mr. Williams’s abstract “flagrandy deficient.” Except for the omission of the judgment and commitment order, the abstract is complete and exemplary. We know from his uncontested statement of the case that Mr. Williams was convicted of conspiracy to deliver methamphetamine and that he was sentenced to thirty years’ imprisonment for that offense. We are aware that in other cases, such as the recent decision in Jewell v. Miller County Election Comm’n, 327 Ark. 153, 936 S.W.2d 754 (1997), we have declined to look to other parts of a brief or abstract to find information that should have been included elsewhere. That, however, was a case in which we were given a nine-page abstract to depict a 1500-page record and six volumes of exhibits. Even in the case of Winters v. Elders, supra, where we declared an abstract of the judgment “essential,” we had an additional reason for affirmance based on incompleteness of the record. While an abstract of the judgment from which the appeal comes is “ordinarily” required, its absence does not necessarily constitute a flagrant deficiency requiring affirmance, and it does not in this case.

Id. at 490, 944 S.W.2d at 824.

Unlike the appellant in Williams, appellant in the present case failed to abstract more than just the judgment and commitment order. The only pleading in the abstract is the information charging appellant. Also, in the case at bar, the statement of the case does not provide the crime of which appellant was convicted. And, the notice of appeal is not abstracted. See Davis v. State, 325 Ark. 36, 924 S.W.2d 452 (1996) (holding an abstract that did not include several pleadings, including the jury verdict, the judgment and commitment order, and the notice of appeal insufficient).

The dissenting opinion states that appellant’s conviction as evidenced by the judgment and commitment order, the timeliness of his appeal, and circumstances of his sentencing are not issues on appeal and, therefore, not necessary components of the abstract. This line of reasoning ignores the fact that the timely filing of a notice of appeal is a jurisdictional requirement. Henry v. State, 49 Ark. App. 16, 894 S.W.2d 610 (1995). Absent an effective notice of appeal, this court lacks jurisdiction to consider the appeal and must dismiss it. Id. See also Parnell v. State, 320 Ark. 250, 895 S.W.2d 911 (1995); Schaeffer v. City of Russellville, 52 Ark. App. 184, 916 S.W.2d 134 (1996). Therefore, whether appellant filed an effective notice of appeal is always an issue before the appellate court.

The dissenting opinion also reasons that this court can address appellant’s argument that he should not have been required to appear for trial in prison attire when he and his attorney failed to obtain civilian clothing prior to the morning of trial. The basis of this argument is that the abstract contains the arguments before the trial court concerning the clothing and the references to appellant’s attire as “jail garb,” “prison garb,” and “jail uniform.” The error in this reasoning is that, although the abstract contains the references to appellant’s clothing as prison attire, there is no description of that attire showing that it is distinctive as prison garb.

While it is generally true that a defendant should not be forced to appear for trial in prison attire and that this rule is founded on the principle that, since a defendant is presumed innocent until proven guilty, he should be allowed to appear before the jury with the appearance of an innocent man, for this rule to apply, the clothing or attire must be distinctive as prison garb. Washington v. State, 6 Ark. App. 23, 637 S.W.2d 614 (1982) (citing Estelle v. Williams, 425 U.S. 501 (1976)). See also Holloway v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), rev’d on other grounds, 435 U.S. 475 (1978). In the present case, there is no description of the jail attire that appellant wore at trial. This precludes appellant from prevailing on this issue on appeal. In Barksdale v. State, 255 Ark. 272, 499 S.W.2d 851 (1973), the supreme court explained:

The court properly denied appellant’s motion for a mistrial on the grounds that he was wearing prison garb. The record shows that appellant was wearing bell-bottom white trousers, a gold shirt, a white and brown striped jacket, and house shoes. There is no evidence of any name or number on the apparel. Nor do we find any merit in the allegation that appellant was brought handcuffed in full view of the jury.

Id. at 274, 499 S.W.2d at 852. See also Washington v. State, 6 Ark. App. 23, 637 S.W.2d 614 (1982) (noting that from the record it was not clear that defendant’s orange jumpsuit was distinctive as jail attire).

In the present case, we have no description of appellant’s prison attire whatsoever. There is no evidence that his clothing had a name, number, or other indicia of prison attire. Therefore, this court does not have a basis upon which to determine that appellant’s prison attire was distinctive as such, which is essential to appellant’s argument on this point. See Washington, supra.

Applying the well-established rules that were reiterated in King, supra, and Davis, supra, the abstract in the present case is flagrantly deficient. However, if we were to reach the merits of appellant’s arguments, based on what we have been provided in the abstract, we would affirm.

Affirmed.

Stroud and Meads, JJ., agree. Neal, Griffen, and Roaf, JJ., dissent.