Stephon Tyrone Harris v. State of Arkansas

2021 Ark. App. 17

• Court: Court of Appeals of Arkansas
• Decided: January 13, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 17 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.15 10:48:40 DIVISION I -05'00' No. CR-19-860 Adobe Acrobat version: 2022.002.20191 Opinion Delivered: January 13, 2021

STEPHON TYRONE HARRIS APPELLANT APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT V. [NO. 26CR-16-688]

STATE OF ARKANSAS HONORABLE JOHN HOMER APPELLEE WRIGHT, JUDGE

REBRIEFING AND SUPPLEMENTAL ADDENDUM ORDERED; MOTION TO WITHDRAW DENIED

WAYMOND M. BROWN, Judge

Appellant Stephon Harris pled guilty to the September 2016 first-degree murder of

Tyler Donaldson. 1 He was sentenced by a Garland County jury to forty years’

imprisonment. Pursuant to Anders v. California, 2 and Rule 4-3(k) 3 of the Rules of the

Arkansas Supreme Court and Court of Appeals, appellant’s counsel has filed a motion to

withdraw on the ground that the appeal is wholly without merit. The clerk of our court

1 As a result of his plea, three attempted first-degree-murder charges and a first- degree-battery charge were nolle prossed. 2 386 U.S. 738 (1967). 3 (2020). furnished appellant with a copy of his counsel’s brief and notified him of his right to file pro

se points for reversal within thirty days. Appellant did not file any points. We order

rebriefing and deny counsel’s motion to withdraw.

Generally, a defendant has no right to appeal from a plea of guilty. 4 A defendant

may appeal from a guilty plea under three limited exceptions: (1) a conditional guilty plea

under certain specified circumstances pursuant to Arkansas Rule of Criminal Procedure

24.3(b); (2) when the assignment of error is from a sentence or sentencing procedure that

was not an integral part of the acceptance of the plea; 5 and (3) an appeal from a guilty plea

when the issue on appeal is one of evidentiary errors that arose after the plea but during the

sentencing phase of the trial, regardless of whether a jury was impaneled or the trial court

sat as the trier of fact during that phase. 6

Appellant did not enter a conditional plea; and his forty-year sentence for a Class Y

felony was within the statutory limits 7 and thus could not present an issue that could be

raised for the first time on appeal. However, appellant’s appeal falls within the third

exception and is properly before us. During appellant’s sentencing hearing, the court

sustained two hearsay objections made by the State. Counsel has failed to abstract these

adverse rulings or address why these rulings present no meritorious ground for reversal.

4 Ark. R. App. P.–Crim. 1(a) (2020). 5 See Burgess v. State, 2016 Ark. 175, 490 S.W.3d 645. 6 King v. State, 2013 Ark. App. 342. 7 Ark. Code Ann. § 5-4-401(a)(1) (Repl. 2013).

2 A request to withdraw because 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. 8 If a no-merit

brief fails to address all adverse rulings, it will be sent back for rebriefing. 9 The requirement

for abstracting and 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. 10 Because counsel failed to abstract or

address the adverse rulings made against appellant during the sentencing hearing, we order

rebriefing.

Furthermore, review of the addendum shows that counsel failed to include

appellant’s request to extend the time to file the record on appeal or the court’s order

granting the request. Arkansas Supreme Court Rule 4-2(a)(8) 11 requires the appellant’s brief

to contain an addendum consisting of all documents in the record that are essential for the

appellate court to confirm its jurisdiction, understand the case, and decide the issues on

appeal. Without a proper order extending appellant’s time to file the appellate record, this

court lacks jurisdiction to hear the appeal. The documents are in the record; therefore,

counsel needs to ensure that they are also included in the addendum.

8 Ark. Sup. Ct. R. 4-3(k)(1) (2020). 9 Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877. 10 Id. 11 (2020).

3 The deficiencies noted above should not be taken as an exhaustive list, and we

encourage counsel to review Anders and Supreme Court Rule 4-3(k) for the requirements

of a no-merit brief as well as Rule 4-2(a) for the required contents of the addendum.

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

addendum. 12 After counsel has filed the substituted brief, our clerk will 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 and supplemental addendum ordered; motion to withdraw denied.

HARRISON, C.J., and GLADWIN, J., agree.

T. Clay Janske, Garland County Deputy Public Defender, for appellant.

One brief only.

12 Ark. Sup. Ct. R. 4-2(b)(3).