Wright v. State

Cite as 2014 Ark. App. 719

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-14-294

DEWAYNE CURTIS WRIGHT Opinion Delivered December 17, 2014
APPELLANT
APPEAL FROM THE OUACHITA
V. COUNTY CIRCUIT COURT
[NO. CR-12-98]

STATE OF ARKANSAS HONORABLE EDWIN KEATON,
APPELLEE JUDGE

REBRIEFING ORDERED; MOTION
TO WITHDRAW AS COUNSEL
DENIED

PHILLIP T. WHITEAKER, Judge

Dewayne Curtis Wright appeals from his Ouachita County Circuit Court convictions

for aggravated robbery, theft of property, and third-degree battery. Pursuant to Anders v.

California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k), appellant’s counsel

has filed a motion to be relieved as counsel, stating that there are no nonfrivolous issues to

present on appeal. The motion was accompanied by an abstract and addendum of the

proceedings below that purportedly included all objections and motions decided adversely to

appellant, and a brief in which counsel attempts to explain why there is nothing in the record

that would support an appeal. We conclude, however, that counsel’s no-merit brief is not in

compliance with Anders and Rule 4-3(k); therefore, we order rebriefing.
 Cite as 2014 Ark. App. 719

We first note that, in his directed-verdict motion, trial counsel made several specific

arguments related to the sufficiency of the evidence of the crimes for which appellant was

charged. Yet, instead of addressing these specific arguments, appellate counsel simply recited

the evidence presented below, quoted the statutory language for each criminal offense, and

made a conclusory assertion that the evidence presented was sufficient. For example, with

respect to the theft-of-property count, trial counsel specifically argued that, because the

victim’s stolen refund check was subsequently voided and was totally worthless, there was

insufficient evidence that the property stolen had a value of over $5,000 for purposes of a class

C felony theft-of-property conviction. Appellate counsel, however, does not address this

specific argument in his brief, nor does he inform the court why this argument would have

no merit. This is not sufficient.

Additionally, counsel has failed to abstract and address an adverse ruling issued during

the sentencing phase of the trial. Trial counsel requested that Wright’s sentences be run

concurrently rather than consecutively. The trial court denied the request and ran Wright’s

sentences for aggravated robbery and theft of property consecutively. Regardless of whether

this argument would have any merit, it is an adverse ruling that must be addressed pursuant

to Anders, supra, and Rule 4-3(k).

The briefing deficiencies set forth in this opinion are not to be taken as an exhaustive

list, and counsel should thoroughly familiarize himself with the requirements of Rule 4-3(k)

and with no-merit case law before refiling his brief to ensure no further deficiencies are

present. Counsel’s substituted brief, abstract, and addendum are due within fifteen days from

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 Cite as 2014 Ark. App. 719

the date of our decision. Ark. Sup. Ct. R. 4-2(b)(3) (2014). By this ruling, we are not

expressing any opinion as to whether the new brief should be filed pursuant to Rule 4-3(k)(1)

or should be filed asserting meritorious grounds for reversal. If a no-merit brief is filed,

counsel’s motion and brief will be forwarded by our clerk to appellant so that, within thirty

days, he again will have the opportunity to raise any points he so chooses in accordance with

Ark. Sup. Ct. R. 4-3(k)(2). In either instance, the State shall be afforded the opportunity to

file a responsive brief.

Rebriefing ordered; motion to withdraw as counsel denied.

GLADWIN, C.J., and HIXSON, J., agree.

N. Mark Klappenbach, for appellant.

Dustin McDaniel, Att’y Gen., by: Ashley Priest, Ass’t Att’y Gen., for appellee.

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