concurring. I concur in the decision to deny the petition for rehearing. However, I wish to respond to counsel’s argument that our decision to require that entire records be filed in no-merit criminal appeals does violence to this state’s contemporaneous-objection rule.
Appellant’s counsel filed a notice of appeal that provided, in pertinent part, that the record on appeal should exclude voir dire, opening statements, and closing arguments except for objections made during those portions of the trial. Counsel argues that this designation of the record for appeal was sufficient to ensure that all rulings adverse to her client were brought before this court for consideration. She argues that the court reporter has, in effect, certified that all objections were transcribed. She contends that this court’s only interest in the untranscribed portions of the record would be to search for errors that may have occurred at trial but to which no objections were interposed, and that no purpose could be served by inspection of those parts of the record because the appellate courts in this state act under a contemporaneous-objection rule that, ordinarily, proscribes consideration of matters not raised at trial. Therefore, counsel concludes, our decision has the effect of ignoring or undermining the holding in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), and could only be interpreted as the adoption of some form of a plain-error rule. Counsel is mistaken.
Counsel has missed the most obvious reason for our decision. As explained in our original opinion in this case, the Supreme Court’s decisions in Anders v. California, 386 U.S. 738 (1967), and its progeny require that the attorneys complete certain duties before submitting a “no-merit” case, and then that the court, not counsel, fully examine all of the proceedings to decide whether an appeal would be, in fact, wholly frivolous. The mere assertion by counsel that the appeal is without merit is insufficient. Bigham v. State, 36 Ark. App. 22, 820 S.W.2d 462 (1991). When our courts discover that an attorney has failed to abstract and brief all adverse rulings, we order that the case be rebriefed in accordance with Sup. Ct. R. 4-3(j). See, e.g., Skiver v. State, 326 Ark. 914, 915-16, 935 S.W.2d 248, 249-50 (1996) (the record contained twelve adverse rulings but only eight were abstracted, and even fewer were discussed); Eads v. State, 74 Ark. App. 363, 365, 47 S.W.3d 918, 919 (2001) (sixteen adverse rulings were made at trial but only twelve were abstracted and discussed).1 How does the court know in such cases that adverse rulings have not been abstracted? The answer is simple: we examine the record to make certain that counsel has detected and dealt with all such rulings.2
Inasmuch as attorneys sometimes overlook objections, whether through a lack of understanding or simple inadvertence, why would we think that court reporters might not sometimes do the same? If we cannot delegate our duties in this regard to the attorneys in a case, how can we delegate them to court reporters, who are not law-trained? We need the complete record that was made below to look for adversely decided objections, motions, and requests that counsel (and in this case, the court reporter) may have overlooked, not to look for plain error.
Such mistakes by attorneys are not at all uncommon. This court has disposed of a number of similar cases in precisely the same way; however, the vast majority of them have resulted in unpublished opinions.
Contrary to counsel’s argument, a no-merit case is a distinctly different animal than a case that is presented in an adversarial fashion; the rule that the record on appeal is limited to that which is abstracted simply does not apply in no-merit cases.