Whittier v. State

Cite as 2015 Ark. App. 183

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-560

JEFFREY PAUL WHITTIER Opinion Delivered March 11, 2015
APPELLANT
APPEAL FROM THE SALINE
V. COUNTY CIRCUIT COURT
[NO. 63CR-11-662-4]

STATE OF ARKANSAS HONORABLE ROBERT HERZFELD,
APPELLEE JUDGE

REBRIEFING ORDERED; MOTION
TO WITHDRAW DENIED

CLIFF HOOFMAN, Judge

Appellant Jeffrey Paul Whittier was convicted of failure to appear, and he was

sentenced by the Saline County Circuit Court to 119 months’ imprisonment and a $10,000

fine. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules of

the Arkansas Supreme Court, Whittier’s counsel has filed a motion to withdraw, alleging that

this appeal is wholly without merit, and a brief in which he contends that all adverse rulings

are abstracted and discussed. Whittier has also exercised his right to file pro se points for

reversal, in which he argues that his sentence is too harsh and should be reduced. We deny

counsel’s motion to withdraw and order rebriefing.

By amended information filed on December 4, 2013, Whittier was charged with

possession/distribution of child pornography, failure to appear at a hearing on that charge on

March 26, 2012, and failure to register as a sex offender. The child-pornography and failure-
Cite as 2015 Ark. App. 183

to-register charges were nolle prossed by the State, and after a bench trial, Whittier was found

guilty of failure to appear, a Class C felony. He was sentenced by the circuit court to 119

months’ imprisonment, a $10,000 fine, and restitution for the costs associated with

transporting him back to this state.

The sentencing order was entered on January 6, 2014, and Whittier’s trial counsel filed

a motion to reduce his sentence, claiming that it was unduly harsh under the circumstances.

Whittier also filed a pro se petition to correct an unlawful sentence, arguing that the circuit

court was without jurisdiction to convict him of failure to appear where the original charge

was subsequently dismissed after his motion to suppress was granted. After a hearing held on

February 28, 2014, the circuit court denied both motions. A written order to that effect was

entered the same date. Whittier then filed a timely notice of appeal from the sentencing order

and the denial of his posttrial motions.

Stating that there would be no merit to an appeal, Whittier’s counsel has filed a

motion to withdraw and a no-merit brief with this court, in which he alleges that all adverse

rulings have been abstracted and discussed in accordance with Arkansas Supreme Court Rule

4-3(k) (2014). Counsel correctly asserts that the only rulings adverse to Whittier were the

denial of his posttrial motions, as he did not move to dismiss the failure-to-appear charge

based on insufficient evidence, and there were no other adverse rulings at the bench trial.

However, we must deny counsel’s motion to withdraw and order rebriefing, as he has failed

to abstract relevant testimony and include all adverse rulings in his abstract and addendum.

Although the record reflects that there was a February 28, 2014 hearing on Whittier’s

2
Cite as 2015 Ark. App. 183

posttrial motions, counsel has failed to abstract any portion of that hearing, including the

circuit court’s oral ruling denying the motions. Counsel has also failed to include in the

addendum Whittier’s pro se petition to correct his unlawful sentence and the circuit court’s

written order denying the posttrial motions. In a criminal no-merit appeal, in order to

comply with Arkansas Supreme Court Rule 4-3(k)(1) and Anders, supra, counsel is required

to abstract and discuss every adverse ruling, and we must order rebriefing if counsel fails to

do so. Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877.

Because the no-merit brief in this case is deficient, we order counsel to file a

substituted abstract, brief, and addendum within fifteen days from the date of this opinion.

Ark. Sup. Ct. R. 4-2(b)(3) (2014). The deficiencies noted above should not be taken as an

exhaustive list, and we encourage counsel to review the requirements contained in Rule 4-

3(k)(1) prior to filing a substituted brief. We express no opinion as to whether the new

appeal should address the merits or should be made pursuant to Rule 4-3(k)(1). If a no-merit

brief is filed, counsel’s motion and brief will be forwarded by the clerk to Whittier so that,

within thirty days, he will again have the opportunity to raise any points he chooses in

accordance with Arkansas Supreme Court Rule 4-3(k)(2). In either instance, the State shall

be afforded the opportunity to file a brief in response.

Rebriefing ordered; motion to withdraw denied.

ABRAMSON and HIXSON, JJ., agree.

Jones Law Firm, by: F. Parker Jones III, for appellant.

Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.