Opinion
No. CACR12-324
01-16-2013
LAWRENCE SCHMITT APPELLANT v. STATE OF ARKANSAS APPELLEE
Herbert C. Southern, for appellant. No response.
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
[NO. CR-2010-0783-1]
HONORABLE ROBIN F. GREEN,
JUDGE
MOTION DENIED; REBRIEFING
ORDERED
WAYMOND M. BROWN, Judge
In April 2011, appellant Lawrence Schmitt pleaded guilty to twenty counts of possession of child pornography, a Class C felony. On September 8, 2011, he was sentenced in a separate proceeding before a jury to four years' imprisonment and a fine of $1000 on each count, with each sentence to run consecutively, for a total of eighty years' imprisonment and fines of $20,000. Pursuant to Anders v. California and Arkansas Supreme Court Rule 4-3(k), Mr. Schmitt's counsel has filed a motion to withdraw on the grounds that an appeal would be wholly without merit. The clerk of our court furnished Mr. Schmitt with a copy of his counsel's brief and notified him of his right under Rule 4-3(k)(2) to file pro se points, but he has not done so.
386 U.S. 738 (1967).
Except as provided by Arkansas Rule of Criminal Procedure 24.3(b) (2012), there shall be no appeal from a plea of guilty or nolo contendere. Rule 24.3(b) allows a defendant to enter a conditional guilty plea premised on an appeal of the denial of a suppression motion, but no conditional plea was made in this case. However, an appeal also may be taken when there is a challenge to testimony or evidence presented before a jury in a sentencing hearing separate from the plea itself.
Ark. R. App. P.–Crim. 1(a) (2011).
Smalley v. State, 2012 Ark. App. 221 (citing Seibs v. State, 357 Ark. 331, 166 S.W.3d 16 (2004); Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003)).
An attorney's request to withdraw from appellate representation based on a meritless appeal must be accompanied by a brief that contains a list of all rulings adverse to his client that were made on any objection, motion, or request made by either party. The argument section of the brief must contain an adequate explanation of why each adverse ruling is not a meritorious ground for reversal, and a failure to do so requires us to order rebriefing. This court is bound to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous.
Anders, supra.
Terry v. State, 2012 Ark. App. 453.
Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001).
We deny counsel's motion to withdraw and order rebriefing because the adverse rulings identified in counsel's brief are not included in the abstract as required by Rule 4- 3(k)(1), and the rulings are only summarily discussed. In addition, counsel has also failed to identify, abstract, or discuss at least one adverse ruling: the circuit court's denial of a defense motion for no prison sentence and a nominal fine. Accordingly, we deny the motion to withdraw and direct counsel to submit a substituted abstract and brief correcting these and any other deficiencies within fifteen days from the date of our opinion. Counsel is advised to review thoroughly the Anders case and Rule 4-3 prior to submitting a substituted abstract and brief.
For example, counsel identifies a ruling by the circuit court that Mr. Schmitt could not request a specific sentence, and merely states, "This was an appropriate finding of the Court."
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Motion denied; rebriefing ordered.
PITTMAN and WYNNE, JJ., agree.
Herbert C. Southern, for appellant.
No response.