Ryan Vernon v. State of Arkansas

2025 Ark. App. 274

• Court: Court of Appeals of Arkansas
• Decided: April 30, 2025
• Status: Published

Opinion

Cite as 2025 Ark. App. 274 ARKANSAS COURT OF APPEALS DIVISION II No. CR-24-394

RYAN VERNON Opinion Delivered April 30, 2025

APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT V. [NO. 23CR-20-491]

STATE OF ARKANSAS HONORABLE CHARLES E. APPELLEE CLAWSON III, JUDGE

REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED

WENDY SCHOLTENS WOOD, Judge

Ryan Vernon appeals from a Faulkner County Circuit Court sentencing order

convicting him of one count of rape and two counts of second-degree sexual assault and

sentencing him to an aggregate of forty years’ imprisonment. Pursuant to Anders v. California,

386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(b),1 Vernon’s counsel has filed

a motion to withdraw and a no-merit brief asserting that there are no issues of arguable merit

to raise on appeal. Because Vernon’s counsel’s no-merit brief is not in compliance with

Anders and Rule 4-3(b), we order rebriefing and deny counsel’s motion to withdraw.

In an amended information filed May 24, 2022, the State charged Vernon with two

counts of rape pursuant to Arkansas Code Annotated section 5-14-103 (Repl. 2024) and one

1 Counsel cites Rule 4-3(k)(1), which is an old version of the rule. count of second-degree sexual assault pursuant to Arkansas Code Annotated section 5-14-

125 (Repl. 2024). Each of the counts alleged that the minor victim (MV1) 2 was under the

age of fourteen. Before trial, the State filed a “notice of intent to rely on [Rule] 404(b)

evidence.” A hearing on the motion took place on April 8, 2022. After hearing testimony of

both MV1 and the Rule 404(b) witness (MV2), the circuit court took the motion under

advisement. On May 20, the circuit court issued a letter ruling concluding that the testimony

of the Rule 404(b) witness would be allowed.

A trial took place on February 28, 2024.3 After the State rested its case-in-chief, it

amended one of the rape charges to second-degree sexual assault. Vernon moved for a

directed verdict on all charges. The circuit court denied the motion. Vernon testified and

called his mother to testify. Vernon renewed his motion for directed verdict, which was

denied. The State presented a rebuttal witness, and Vernon testified in rebuttal for the

defense.

The jury found Vernon guilty of all charges and recommended a sentence of twenty

years’ imprisonment for each second-degree sexual-assault conviction and forty years’

imprisonment for the rape conviction, with the sentences to run consecutively. The circuit

2 In his brief, counsel refers to the minor victims by name, which is prohibited by Arkansas Supreme Court Rule 6-3(b)(1). 3 Counsel states that this was the second trial after the first trial resulted in a hung jury.

2 court accepted the recommended sentences but ordered them to run concurrently. This

appeal followed.

A request to withdraw on the basis that the appeal is wholly without merit must be

accompanied by a brief containing 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. Ark. Sup. Ct. R. 4-3(b)(1). The brief’s statement of the case and the facts

shall contain, in addition to the other material parts of the record, all rulings adverse to the

defendant made by the circuit court and the page number where each adverse ruling can be

found in the appellate record. Id.

A no-merit brief in a criminal case that fails to address an adverse ruling does not

satisfy the requirements of Rule 4-3(b)(1), and rebriefing will be required. Thompson v. State,

2024 Ark. App. 399, at 2, 697 S.W.3d 723, 725. 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. Id. at 2–3, 697 S.W.3d at 725. The test is not whether counsel thinks the circuit

court committed no reversible error but whether the points to be raised on appeal would be

wholly frivolous. Id. at 3, 697 S.W.3d at 725.

The brief in this case is not in compliance with Anders and Rule 4-3(b). First, the

statement of the case is deficient. Arkansas Supreme Court Rule 4-2(a)(6) requires, in part,

that the statement of the case “identify and discuss all material factual and procedural

3 information contained in the record on appeal. Information in the appellate record is

material if the information is essential to understand the case and to decide the issues on

appeal.” Rule 4-3(b)(1), which specifically applies to withdrawal of counsel and no-merit

briefs in criminal cases, provides that the “statement of the case and the facts shall contain,

in addition to the other material parts of the record, all rulings adverse to the defendant

made by the circuit court and the page number where each adverse ruling is located.” Here,

the statement of the case and facts contain none of the material information contained in

the record, no mentions of adverse rulings, and no page-number references to the record.

Second, counsel’s brief states that there were no “objections adverse to the

[d]efendant.” However, our review of the record revealed multiple adverse rulings. For

example, before trial, the circuit court ruled that the State would be allowed to introduce

Rule 404(b) evidence over Vernon’s objection. During trial, the circuit court sustained

numerous evidentiary objections made by the State: the State’s objection to Vernon’s

testimony that MV2’s mother (Vernon’s wife) had experienced abuse as a child similar to

abuse alleged by MV2; the State’s hearsay objection when Vernon’s mother testified about

MV1’s reporting the abuse; the State’s speculation objection when defense counsel asked

Vernon’s mother why “nobody” called the police when MV1 first disclosed her allegations

of abuse; and the State’s relevancy objection to the defense’s introducing Vernon’s family

photo.

Finally, the only adverse ruling specifically addressed is the jury’s “finding of guilty to

the charges.” However, counsel fails to explain why there is no meritorious argument for

4 reversal in regard to the sufficiency of the evidence that supported each of the convictions.

Counsel’s brief contains only a single conclusory statement as to all three convictions.

Accordingly, we order Vernon’s counsel to cure these deficiencies by filing a

substituted brief within fifteen days from the date of this opinion. The deficiencies we have

identified should not be considered exhaustive, and counsel is encouraged to carefully

examine the record and review our rules before submitting a substituted brief. We express

no opinion as to whether the new brief should be a no-merit brief pursuant to Rule 4-3 or

should be on meritorious grounds. If a substituted no-merit brief is filed, our clerk will

forward counsel’s motion and brief to Vernon, and he will have thirty days within which to

raise additional pro se points in accordance with Rule 4-3. The State will likewise be given

an opportunity to file a reply brief if further pro se points are made.

Rebriefing ordered; motion to withdraw denied.

GLADWIN and THYER, JJ., agree.

Hensley Law Firm, PA, by: James E. Hensley, Jr., for appellant.

One brief only.