Tylor Reed Jones v. State of Arkansas

2021 Ark. App. 14

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

Opinion

Cite as 2021 Ark. App. 14 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.08.15 10:56:40 DIVISION III -05'00' Adobe Acrobat version: No. CR-20-300 2022.002.20191 Opinion Delivered: January 13, 2021 TYLOR REED JONES APPELLANT APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-18-642] V. HONORABLE CARLTON D. JONES, JUDGE STATE OF ARKANSAS APPELLEE MOTION TO WITHDRAW DENIED; REBRIEFING ORDERED

PHILLIP T. WHITEAKER, Judge

Appellant Tylor Jones was found guilty by the Miller County Circuit Court of one

count of possession of less than two grams of methamphetamine and sentenced to six years

in the Arkansas Department of Correction (ADC). His attorney has now filed a motion to

withdraw and a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Arkansas Supreme Court Rule 4-3(k) on the ground that an appeal would be without merit.

Jones was notified of his right to file pro se points but did not do so. We must deny counsel’s

motion to withdraw and order rebriefing at this time.

The Supreme Court has held that the purpose of the Anders brief is both “to provide

the appellate courts with a basis for determining whether appointed counsel have fully

performed their duty to support their clients’ appeal to the best of their ability” and to aid

the court in its “critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,

439 (1988). Our Rule 4-3(k)(1) provides that a request to withdraw on the ground that the

appeal is wholly without merit shall be accompanied by a brief including an abstract and

addendum. The brief shall contain 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. Id. The abstract and addendum of the brief shall contain, in addition to

the other material parts of the record, all rulings adverse to the defendant made by the circuit

court. Id.

Here, counsel asserts that the only adverse ruling that occurred at trial was the circuit

court’s denial of defendant’s motion to dismiss. 1 We disagree. Counsel omits from both the

abstract and discussion an adverse ruling that occurred during the sentencing portion of the

trial. At trial, after the court found Jones guilty and sentenced him to six years in the ADC,

defense counsel requested that the court “consider a judicial transfer for this sentence to the

Community Punishment Center.” After the State pointed out that Jones had a conviction

from Louisiana that would preclude such a transfer, the court denied Jones’s request. The

sentencing order in this case, however, indicates that the potential presumptive sentences

for this particular offense would have been (1) a sentence in the ADC for a term between

two and four years, (2) judicial transfer to a community corrections center, or (3) an

alternative sanction.

1 In his Anders brief, counsel adequately addresses the sufficiency of the evidence supporting Jones’s conviction.

2 Clearly, Jones requested an alternative sanction that was denied by the court. The

failure to grant a request for an alternative sanction is an adverse ruling that must be addressed

in a no-merit brief. See, e.g., Swarthout v. State, 2012 Ark. App. 46 (counsel failed to abstract

or address the circuit court’s denial of defendant’s request for a transfer to Veterans

Treatment Court or for probation). Our supreme court has held that when counsel fails to

address every adverse ruling, rebriefing must be ordered. Sartin v. State, 2010 Ark. 16, 362

S.W.3d 877. Because counsel has failed to address all the adverse rulings that occurred

below, we must deny his motion to withdraw at this time and order rebriefing. Accordingly,

we order counsel to cure the deficiencies in the brief by filing a substituted brief within

fifteen days from the date of this opinion.

Motion to withdraw denied; rebriefing ordered.

VIRDEN and KLAPPENBACH, JJ., agree.

The Potter Law Firm, LLP, by: Thomas A. Potter, for appellant.

One brief only.