Joshua Michael Miller v. State of Arkansas

2021 Ark. App. 299

• Court: Court of Appeals of Arkansas
• Decided: June 2, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 299 ARKANSAS COURT OF APPEALS Elizabeth Perry I attest to the accuracy and DIVISION III integrity of this document No. CR-20-384 2023.06.28 15:09:14 -05'00' 2023.001.20174 Opinion Delivered: June 2, 2021 JOSHUA MICHAEL MILLER APPELLANT APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT V. [NO. 03CR-18-155]

STATE OF ARKANSAS HONORABLE JOHN R. PUTMAN, APPELLEE JUDGE

REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED

MIKE MURPHY, Judge

In this no-merit appeal, appellant Joshua Miller’s appellate attorney has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-

3(k)(1) (2019), seeking to withdraw as counsel on the basis that there is no merit to an

appeal. We order rebriefing and deny counsel’s motion to withdraw.

On November 13, 2019, a Baxter County jury found Miller of the following:

obstructing governmental operations, theft of property, commercial burglary, possession of

drug paraphernalia, possession of suboxone, possession of methamphetamine, and possession

of marijuana. These charges were brought in three separate case numbers: 03CR-18-155,

03CR-19-129, and 03CR-19-127. Despite being three separate cases, they were all tried

together at one two-day jury trial. The records were again separated for appeal, and the

underlying case for this appeal is number 03CR-18-155. The charges in number 03CR-

18-155 were the possession of methamphetamine, a Class D felony, and possession of suboxone, a Class A misdemeanor.

At the trial and pertinent to this appeal, the jury heard testimony from officer Josh

Evans, who testified that on April 7, 2018, he pulled Miller over for a traffic violation. When

he searched Miller, he found a white crystal substance and orange strips that looked like

suboxone. He testified that Miller admitted it was methamphetamine and suboxone. Both

items were admitted into evidence. Benjamin Gilbert with the state crime lab testified that

the orange strips were consistent with suboxone, but he did not test it. He said that he tested

the crystal substance and it was methamphetamine. Miller was convicted of possession of

both substances. He appeals.

As mentioned, upon appeal, counsel filed a writ of certiorari to separate the appellate

records in circuit court case numbers 03CR-18-155, 03CR-19-127, and 03CR-19-129.

Counsel then filed this no-merit brief for number 03CR-18-155. The clerk of this court

mailed to Miller a packet containing a copy of his counsel’s brief and a notice of his right to

file pro se points, but he has not done so.

Miller’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 that contains a list of all rulings adverse to appellant

and an explanation as to why each ruling is not a meritorious ground for reversal. Ark. Sup.

Ct. R. 4-3(k)(1). The brief shall contain an argument section that lists 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. Id.

2 Having reviewed the record, we hold that counsel’s no-merit brief is not in

compliance with Anders and Rule 4-3(k). Therefore we order rebriefing and deny without

prejudice counsel’s motion to withdraw. Our review of this record demonstrates that

counsel failed to address several motions for directed verdict per Rule 4-3(k)(1). The

requirement for briefing every adverse ruling ensures that the due-process concerns in

Anders are met and prevents the unnecessary risk of a deficient Anders brief resulting in an

incorrect decision on counsel’s motion to withdraw. Pursuant to Anders, we are required to

determine whether the case is wholly frivolous after a full examination of all the proceedings.

T.S. v. State, 2017 Ark. App. 578, 534 S.W.3d 160. 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. There are

unbriefed motions in the record accompanying this appeal. Rule 4-3 does not provide

latitude for appellate counsel to pick and choose which adverse rulings to discuss.

Counsel has fifteen days from the date of this opinion to file a substituted brief that

complies with the rules. See Ark. Sup. Ct. R. 4-2(b)(3). After counsel has filed the

substituted brief, our clerk will attempt to forward counsel’s motion and brief to appellant,

and he will have thirty days within which to raise pro se points in accordance with Rule 4-

3(k). The State will likewise be given an opportunity to file a responsive brief if pro se points

are made.

Rebriefing ordered; motion to withdraw denied.

ABRAMSON and HIXSON, JJ., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

One brief only.