Schmitt v. State

2014 Ark. App. 66

Opinion

Cite as 2014 Ark. App. 66

ARKANSAS COURT OF APPEALS DIVISION II No. CR-12-324

Opinion Delivered January 22, 2014

LAWRENCE SCHMITT APPEAL FROM THE BENTON APPELLANT COUNTY CIRCUIT COURT [NO. CR-10-0783-1] V. HONORABLE ROBIN F. GREEN, STATE OF ARKANSAS JUDGE APPELLEE

AFFIRMED; MOTION TO WITHDRAW GRANTED

WAYMOND M. BROWN, Judge

In April 2011, appellant Lawrence Schmitt pleaded guilty to twenty counts of

possession of child pornography, a Class C felony. On September 8, 2011, he was sentenced

in a separate proceeding before a jury to four years’ imprisonment and ordered to pay a fine

of $1000 on each count, with each sentence to run consecutively, for a total of eighty years’

imprisonment and fines of $20,000. Pursuant to Anders v. California1 and Arkansas Supreme

Court Rule 4-3(k), Schmitt’s counsel has filed a motion to withdraw on the grounds that an

appeal would be wholly without merit. We affirm and grant counsel’s motion to withdraw.

1 386 U.S. 738 (1967). Cite as 2014 Ark. App. 66

This is the third time this case has been before us.2 In our first opinion, we noted that

counsel had failed to identify, abstract, and discuss the circuit court’s denial of a defense

motion for no prison sentence and a nominal fee. The directed-verdict motion was abstracted

following remand; however, counsel failed to abstract the renewal of the motion and the

court’s denial. Additionally, the jury-verdict form for Count 1 was not included in the record

or the addendum. Therefore, we remanded to supplement the record and for rebriefing.

An attorney’s request to withdraw on the ground that the appeal is wholly without

merit must 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.3 This court is

bound to perform a full examination of the proceedings as a whole to decide if an appeal

would be wholly frivolous.4 Our supreme court has held that the failure to abstract and

discuss any adverse ruling in an Anders brief necessitates rebriefing.5

Here, based on our review of the record for potential error pursuant to Anders and the

requirements of Rule 4-3(k), we hold that an appeal of appellant’s sentence would be entirely

without merit. Accordingly, we affirm the sentence and grant counsel’s motion to withdraw.

2 See Schmitt v. State, 2013 Ark. App. 20, and Schmitt v. State, 2013 Ark. App. 489. 3 Ark. Sup. Ct. R. 4-3(k)(1) (2012). 4 Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001). 5 Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877.

2 Cite as 2014 Ark. App. 66

Affirmed; motion to withdraw granted.

GLADWIN, C.J., and WOOD, J., agree.

Herbert C. Southern, for appellant.

No response.