James M. Bohanan v. State of Arkansas

2020 Ark. App. 11

• Court: Court of Appeals of Arkansas
• Decided: January 15, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 11 ARKANSAS COURT OF APPEALS DIVISION III No. CR-19-249

Opinion Delivered January 15, 2020 JAMES M. BOHANAN APPELLANT APPEAL FROM THE CONWAY V. COUNTY CIRCUIT COURT [NO. 15CR-18-22] STATE OF ARKANSAS APPELLEE HONORABLE JERRY RAMEY, JUDGE

MOTION TO WITHDRAW DENIED; REBRIEFING ORDERED

BRANDON J. HARRISON, Judge

A Conway County Circuit Court jury found James M. Bohanan guilty of four counts

of felon in possession of a firearm. Bohanan was sentenced to ten years’ imprisonment in

the Arkansas Department of Correction concurrently on each count. Bohanan’s lawyer,

Robert N. Jeffrey, has submitted a no-merit brief and a motion to withdraw as counsel

asserting that this appeal is without merit.

Rule 4-3(k) (2019) of the Rules of the Supreme Court of Arkansas, which is based

on Anders v. California, 386 U.S. 738 (1967), outlines the framework for constitutionally

permissible no-merit briefs. Rule 4-3(k)(1) requires that the argument section of a no-merit

brief contain “a list of all rulings adverse to the defendant made by the circuit court on all

objections . . . with an explanation as to why each . . . is not a meritorious ground for

reversal.” Ark. Sup. Ct. R. 4-3(k)(1). We cannot affirm Bohanan’s convictions and allow Jeffrey to withdraw without an adequate discussion of why a particular ruling by the circuit

court is not a meritorious ground for reversal. Sartin v. State, 2010 Ark. 16, 362 S.W.3d

877 (per curiam). If a no-merit brief fails to address all the adverse rulings, we must order

rebriefing. Id.

This no-merit brief fails to address all adverse rulings. Jeffrey did not discuss

Bohanan’s speedy-trial motion that was orally denied by the circuit court during the August

2018 trial. And the circuit court sustained the prosecutor’s objection to Bohanan telling the

jury about having “no chance” unless certain people were brought as witnesses. Third,

during the sentencing phase of trial, Bohanan asked that the weapons the State recovered

be returned because they were his son’s guns. The court orally ruled that the State could

decide what to do with the guns when the appeal process had ended. The sentencing order

states, “Firearms shall be forfeited to law enforcement.” The no-merit brief also does not

discuss a 24 January 2019 order denying postconviction relief to Bohanan, which was filed

in circuit court before the appeal record was lodged in this court. Finally, Jeffrey has not

adequately discussed Bohanan’s attempts to “fire” him at several points in this case.

We remind counsel that these examples are not necessarily an exhaustive list of

deficiencies. Counsel is encouraged to review Anders and Rule 4-3(k) for the requirements

of a no-merit brief and to determine whether there remains any meritorious argument on

appeal. Jeffrey has fifteen days from this opinion’s date to file a compliant substituted brief.

See Ark. Sup. Ct. R. 4-2(c)(2). After counsel has filed the substituted brief, our clerk will

forward counsel’s motion and brief to Bohanan, and he will have thirty days to raise any

2 pro se points pursuant to Rule 4-3(k)(2). The State will also be given an opportunity to file

a responsive brief.

Motion to withdraw denied; rebriefing ordered.

HIXSON and MURPHY, JJ., agree.

Robert N. Jeffrey, Attorney at Law, by: Robert N. Jeffrey, for appellant.

One brief only.