Guthrie v. State

2017 Ark. App. 383

• Court: Court of Appeals of Arkansas
• Decided: June 21, 2017
• Docket: CR-16-562
• Status: Published

Opinion

Cite as 2017 Ark. App. 383

ARKANSAS COURT OF APPEALS DIVISION I No. CR-16-562 Opinion Delivered: June 21, 2017

GEORGE DEWAYNE GUTHRIE APPEAL FROM THE CRAIGHEAD APPELLANT COUNTY CIRCUIT COURT, EASTERN DISTRICT V. [NO. 16LCR-15-18]

STATE OF ARKANSAS APPELLEE HONORABLE JOHN N. FOGLEMAN, JUDGE

REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED

BART F. VIRDEN, Judge

Appellant George Dewayne Guthrie appeals from his convictions of residential

burglary and theft of property. Pursuant to Anders v. California, 386 U.S. 738 (1967), and

Rule 4-3(k) of the Rules of the Arkansas Supreme Court, Guthrie’s counsel has filed a

motion to be relieved as his attorney, alleging that this appeal is without merit. Counsel has

also filed a brief in which he contends that all adverse rulings have been abstracted and

discussed. In addition, Guthrie has exercised his right to file pro se points for reversal.

We deny counsel’s motion to withdraw at this time and order rebriefing due to

counsel’s failure to abstract and discuss all adverse rulings in compliance with Rule 4-3(k).

In May 2015, Guthrie was charged with one count of breaking or entering and one

count of theft of property. An amended information was filed in December 2015 in which

Guthrie was charged with one count of residential burglary and one count of theft of Cite as 2017 Ark. App. 383

property. He was charged as a habitual offender. After a jury trial, Guthrie was found guilty

of both charges. Guthrie received a sentence of thirty years in prison for the residential

burglary conviction and was assessed a fine of $2500, and he received a sentence of six

months in the county jail for the theft-of-property conviction. Guthrie filed a timely notice

of appeal.

Asserting that there would be no merit to an appeal, Guthrie’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). Counsel noted several adverse rulings, including the denial of Guthrie’s motion

to suppress, the denial of his directed-verdict motion on the charges of residential burglary

and theft, the denial of Guthrie’s request for a mistrial, and the circuit court’s overruling his

objection to the State’s characterization of the defense’s argument concerning “occupiable

structure” during the State’s closing argument; however, our review of the record reveals

that there were additional adverse rulings that were either not abstracted or not discussed by

counsel, and we must therefore deny counsel’s motion to withdraw and order rebriefing.

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 each adverse ruling by the

circuit court and discuss why each particular ruling would not present a meritorious basis

for reversal; we must order rebriefing if counsel fails to do so. Sartin v. State, 2010 Ark. 16,

362 S.W.3d 877. In the present case, there were at least two other rulings adverse to Guthrie.

The first instance is the circuit court’s denial of Guthrie’s request that the court administer

the sentence after the jury had found him guilty. The second instance is the circuit court’s

2 Cite as 2017 Ark. App. 383

denial of Guthrie’s request for an appeal bond. Counsel has failed to abstract these rulings

and has failed to discuss why these rulings would not present a meritorious issue for appeal.

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). 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 substituted

brief 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 Guthrie so that,

within thirty days, he will again have the opportunity to raise any points he 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 brief in response.

Rebriefing ordered; motion to withdraw denied.

WHITEAKER and MURPHY, JJ., agree.

Joseph C. Self, for appellant.

Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.