Mister v. State

2014 Ark. 160

• Court: Supreme Court of Arkansas
• Decided: April 10, 2014
• Docket: CR-13-294
• Status: Published

Opinion

Cite as 2014 Ark. 160

SUPREME COURT OF ARKANSAS No. CR-13-294

Opinion Delivered April 10, 2014

APPEAL FROM THE SEBASTIAN SHARVELT MARQUETTE MISTER COUNTY CIRCUIT COURT, FORT APPELLANT SMITH DISTRICT [NOS. CR-2000-1053, CR-2001- 238/239, CR-2007-953/969E] V. HONORABLE STEPHEN MERRILL TABOR, JUDGE STATE OF ARKANSAS APPELLEE REBRIEFING ORDERED.

PER CURIAM

After the circuit court revoked appellant Sharvelt Marquette Mister’s suspended

sentences for controlled-substance convictions, the court sentenced him to a total of 57 years’

imprisonment. The Arkansas Court of Appeals affirmed the circuit court’s decision. Mister v.

State, 2012 Ark. App. 375. Following the affirmance, Mister filed with the circuit court a

petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal

Procedure. After a hearing, the circuit court denied the petition, and Mister now appeals.

Because Mister’s brief does not comply with Arkansas Supreme Court Rules 4-2(a)(5) and (8)

(2013), we are unable to reach the merits of Mister’s appeal. Accordingly, we order rebriefing.

For his first claim of ineffective assistance of counsel, Mister argues that, even though

the State had indicated on two plea offers made to him that he had a sentencing exposure of

117 years’ imprisonment, he “did not understand,” that his trial counsel “never explained to Cite as 2014 Ark. 160

him the extent of his exposure or how the State determined the exposure was 117 years,” and

that his trial counsel “could not explain it to appellant since he did not understand.” Mister

asserts that had he been aware of the extent of his exposure to 117 years’ imprisonment, he

would have accepted one of the plea offers. Second, Mister asserts that trial counsel was

ineffective because he misled him into believing that there had been a plea offer of 20 years,

and that he relied on the misrepresentation, accepted the alleged plea offer, and expected to

enter a plea on the day of the hearing instead of facing a trial. Mister alleges that his trial

counsel “never told him he was going to trial and never prepared for trial.”

Arkansas Supreme Court Rule 4-2(a)(8) provides that the “addendum shall contain

true and legible copies of the non-transcript documents in the record on appeal that are

essential” for this court “to confirm its jurisdiction, to understand the case, and to decide the

issues on appeal.” During the Rule 37.1 hearing, twenty-three exhibits related to the plea

offers and other matters were introduced into evidence by the State. None of these exhibits

were included in Mister’s addendum (though the State provided a copy of one of these

exhibits in its supplemental addendum). Also, the addendum does not include copies of the

judgment and commitment order relating to the revocation or the judgment and commitment

orders setting out appellant’s sentencing exposure upon revocation, all of which are found in

the record in Mister v. State, 2012 Ark. App. 375. Without having these items in the

addendum, it is difficult to follow Mister’s arguments; they must be included in the

addendum.

Further, Arkansas Supreme Court Rule 4-2(a)(5) provides that “the appellant shall 2 Cite as 2014 Ark. 160

create an abstract of the material parts of all the transcripts (stenographically reported material)

in the record.” Rule 4-2(a)(5) also provides that “[i]nformation in a transcript is material if

the information is essential for the appellate court to confirm its jurisdiction, to understand

the case, and to decide the issues on appeal.” Insofar as Mister argues that trial counsel’s efforts

at the revocation hearing were ineffective, an abstract of the revocation hearing is necessary,

the transcript of which is found in the record in Mister v. State, 2012 Ark. App. 375.

Given the difficulty in assessing Mister’s argument without these missing items, we

order rebriefing. In accordance with Arkansas Supreme Court Rule 4-2(b)(3), Mister is

directed to file with our clerk within fifteen days from the date of this per curiam a substituted

abstract, addendum, and brief that complies with our rules. After service of the substituted

brief, the State shall have an opportunity to file a responsive brief in the time prescribed by

the Supreme Court Clerk, or to rely on the brief that was previously filed in this appeal.

While we have noted the above-mentioned deficiencies, we encourage Mister’s counsel to

review our rules and the records to ensure that no additional deficiencies are present. Failure

to timely correct the deficiencies may result in the judgment of the circuit court being

affirmed for noncompliance with our rules. Ark. Sup. Ct. R. 4-2(c)(2).

Rebriefing ordered.

Andrew Vess, for appellant.

Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.