Lenderman v. State

2017 Ark. App. 1

• Court: Court of Appeals of Arkansas
• Decided: January 18, 2017
• Docket: CR-16-224
• Status: Published

Opinion

Cite as 2017 Ark. App. 1

ARKANSAS COURT OF APPEALS DIVISION IV No. CR-16-224

ERIC LENDERMAN Opinion Delivered: January 18, 2017 APPELLANT APPEAL FROM THE GREENE V. COUNTY CIRCUIT COURT [NO. 28CR-14-186]

STATE OF ARKANSAS HONORABLE BRENT DAVIS, APPELLEE JUDGE

MOTION TO WITHDRAW DENIED; REBRIEFING ORDERED

RITA W. GRUBER, Chief Judge

Counsel for Eric Lenderman has filed a no-merit brief and a motion to withdraw as

counsel in this case, purportedly filing his brief pursuant to Anders v. California, 386 U.S. 738

(1967) and Arkansas Supreme Court Rule 4-3(k)(1) (2016). Lenderman has filed a list of pro

se points for reversal pursuant to Rule 4-3(k)(2), and the State has submitted a brief in

response to the issues he has raised. We order rebriefing because counsel’s brief does not

comply with the requirements of Rule 4-3(k)(1).

On October 3, 2014, the Circuit Court of Greene County accepted appellant’s

negotiated plea of guilty to Class D felony theft of a credit/debit card or account number, see

Ark. Code Ann. § 5-36-103(b)(3)(C), and to Class C felony fraudulent use of a credit/debit

card or account number by obtaining moneys, goods, or services in a six-month period valued

at less than $25,000 but more than $5,000. Ark. Code Ann. § 5-37-207(b)(2) (Repl. 2013).

He was sentenced to four years’ supervised probation, subject to written conditions. He was Cite as 2017 Ark. App. 1

to report as directed to a supervising officer and permit visits to his residence, place of

employment, or other property; notify the supervising officer of address changes; pay $35 in

monthly supervision fees; make monthly restitution payments of $175, through the sheriff’s

office, to the victim;1 and pay $50 each month toward court costs and fees totaling $720.

In a December 2014 petition to revoke probation and an April 2015 supplemental

petition, the State alleged that appellant had not complied with certain conditions of his

probation. At the conclusion of a revocation hearing on November 2, 2015, the circuit court

found that appellant had violated multiple conditions of his probation. The sentencing order

entered on the same date reflects that the court revoked appellant’s probation and imposed

concurrent sentences of 72 months’ imprisonment for the theft of property and 72 months’

suspended imposition of sentence on the fraudulent use of a credit card.

In his no-merit brief to our court, counsel states that no objections were raised by

appellant during the hearing and that the only “apparent issue” regards the sufficiency of the

evidence. The argument section of a no-merit brief, however, must contain “a list of all

rulings adverse to the defendant . . . on all objections, motions and requests made by either party with

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

R. 4-3(k)(1) (2016)(emphasis added). Additionally, the rule requires that the brief’s abstract

and addendum “shall contain . . . all rulings adverse to the defendant” made by the circuit

court. Id. Generally speaking, if a no-merit brief fails to address all adverse rulings, it will be

sent back for rebriefing. Sartin v. State, 2010 Ark. 16, at 4, 362 S.W.3d 877, 880. The

1 The victim was appellant’s grandmother.

2 Cite as 2017 Ark. App. 1

requirement for abstracting and briefing every adverse ruling ensures that due-process

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

incorrect decision on counsel’s motion to withdraw. Id. at 8, 362 S.W.3d at 882. Thus, 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 must be rebriefed. Id.

Our examination of the record in the present case reveals that the circuit court

sustained hearsay objections raised by the State during appellant’s testimony in the case for the

defense. Counsel has not abstracted these objections and rulings; nor has he listed them or

explained why the adverse rulings do not constitute meritorious grounds for reversal. We

order rebriefing because of this deficiency.

Counsel is encouraged to review Anders v. California, supra, and Rule 4-3(k)(1) for the

requirements of a no-merit brief. We also note that the statement of the case in counsel’s

brief fails to include supporting page references to the abstract or addendum, a briefing

requirement under Rule 4-2(a)(6), and that various portions of the argument section fail to

refer to pages of the abstract or addendum,2 as required by Rule 4-2(a)(7).

The briefing deficiencies we have mentioned are not to be taken as an exhaustive list.

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 the filing of the substituted brief, our

clerk will forward counsel’s motion and brief to appellant so that, within thirty days, he again

2 For example, the argument section refers only to a page of the record, not of the addendum, when reproducing an allegation in the State’s supplemental petition to revoke.

3 Cite as 2017 Ark. App. 1

will have the opportunity to raise pro se points in accordance with Rule 4-3(k). The State

will likewise be given the opportunity to file a responsive brief. Appellant and the State may

elect instead to stand on the original pro se points and responsive brief in this case.

Motion to withdraw denied; rebriefing ordered.

VIRDEN and HIXSON, JJ., agree.

Caroline Wilson, for appellant.

Leslie Rutledge, Att’y Gen., by: Ashley Priest, Ass’t Att’y Gen., for appellee.