Jodeci Nash v. State of Arkansas

2023 Ark. App. 2

• Court: Court of Appeals of Arkansas
• Decided: January 18, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 2 ARKANSAS COURT OF APPEALS DIVISION II No. CR-21-255

JODECI NASH Opinion Delivered January 18, 2023 APPELLANT APPEAL FROM THE SALINE COUNTY CIRCUIT COURT V. [NO. 63CR-16-154]

STATE OF ARKANSAS HONORABLE BRENT DILLON APPELLEE HOUSTON, JUDGE

REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED

RAYMOND R. ABRAMSON, Judge

This is a no-merit appeal filed on behalf of Jodeci Nash following the Saline County

Circuit Court’ s revocation of his probation. Nash’s counsel filed a notice of appeal followed

by a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas

Supreme Court Rule 4-3(b) (2021), along with a motion to withdraw as counsel asserting

that there is no issue of arguable merit on appeal. The clerk of this court sent Nash a copy

of his counsel’s brief and motion to inform him of his right to file pro se points for reversal.

He did not file pro se points. We order rebriefing and deny counsel’s motion to withdraw.

On April 17, 2017, Nash pled guilty to false imprisonment and domestic battery, and

the court sentenced him to forty-eight months’ probation for false imprisonment and twelve

months’ probation for domestic battery. On February 2, 2018, the State moved to revoke Nash’s probation alleging that Nash had committed new offenses and had failed to pay court

costs and fines.

On January 31, 2019, the State amended its petition to revoke Nash’s probation, and

on October 8, 2020, the State filed a second amended petition. In the second amended

petition, the State alleged that Nash had committed new offenses; tested positive for alcohol,

amphetamine, and marijuana; failed to report; failed to notify his probation officer of a

change of address; failed to pay supervision fees, fines, and court costs; failed to complete a

domestic-battery course; and failed to complete community service.

On January 12, 2021, the court held a revocation hearing. At the conclusion of the

hearing, the court found that Nash had committed multiple violations and sentenced him

to sixty months’ imprisonment with jail-time credit. Nash appealed the sentencing order.

On appeal, Nash’s counsel argues that there are no meritorious grounds for appeal

and asks to withdraw as counsel. A request to withdraw on the ground that the appeal is

wholly without merit shall be accompanied by a brief, including an argument section that

consists of a list of all rulings adverse to the defendant made by the circuit court on all

objections, motions, and requests made by either party with an explanation as to why each

adverse ruling is not a meritorious ground for reversal. Bohanon v. State, 2020 Ark. App. 22,

594 S.W.3d 92. A no-merit brief in a criminal case that fails to address an adverse ruling

does not satisfy the requirements of Rule 4-3(k)(1), and rebriefing will be required. Jester v.

State, 2018 Ark. App. 360, 553 S.W.3d 198. The requirement for briefing every adverse

ruling ensures that the due-process concerns in Anders are met and prevents the unnecessary

2 risk of a deficient Anders brief resulting in an incorrect decision on counsel’s motion to

withdraw. Miller v. State, 2021 Ark. App. 229.

We hold that counsel’s no-merit brief in this case is not in compliance with Anders

and Rule 4-3(k) for three reasons. First, counsel inadequately discusses the sufficiency of the

evidence for the revocation of Nash’s probation. Counsel merely states that the court did

not err in finding that there was sufficient evidence to show that Nash violated his probation

and that “there is no dispute” that Nash violated several conditions. However, counsel fails

to note that the revocation of Nash’s probation is an adverse ruling, and he cites no law

concerning the sufficiency of the evidence for revocations of probation.

Second, our review of the record reveals an adverse ruling that counsel wholly fails to

address. Record page 47 reflects that during the revocation hearing, the State objected to

Nash’s testimony on the basis of relevancy. The court agreed and asked Nash to move along.

Third, counsel made at least two errors in his statement of the case. He states that

Nash was sentenced on March 7, 2019, but the record shows that Nash was sentenced on

April 17, 2017. He also does not discuss the operative second amended petition to revoke

filed on October 8, 2020. He cites only the first amended petition.

Accordingly, we order counsel to cure the deficiencies by filing a substituted brief

within fifteen days from the date of this opinion. The deficiencies we have noted should not

be considered an exhaustive list, and counsel is strongly encouraged to review Anders and

Rule 4-3(k) of the Arkansas Rules of the Supreme Court and Court of Appeals for the

requirements of a no-merit brief.

3 Rebriefing ordered; motion to withdraw denied.

VIRDEN and KLAPPENBACH, JJ., agree.

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

One brief only.