Weaver v. State

2014 Ark. App. 34

• Court: Court of Appeals of Arkansas
• Decided: January 15, 2014
• Docket: CR-11-617
• Status: Published

Opinion

Cite as 2014 Ark. App. 34

ARKANSAS COURT OF APPEALS DIVISION II No. CR-11-617

DANIEL WEAVER Opinion Delivered January 15, 2014 APPELLANT APPEAL FROM THE CRAWFORD V. COUNTY CIRCUIT COURT [NO. CR-2010-439-(II)]

STATE OF ARKANSAS HONORABLE MICHAEL MEDLOCK, APPELLEE JUDGE

REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED

DAVID M. GLOVER, Judge

This “no-merit” appeal returns to us for the third time. We ordered rebriefing in

Weaver v. State, 2012 Ark. App. 446, and again in Weaver v. State, 2013 Ark. App. 310. With

this opinion, we yet again order rebriefing and deny counsel’s motion to withdraw.

As explained in our earlier opinions, Daniel Weaver was tried by a jury and found

guilty of the offense of rape. He was sentenced to twenty-nine years in the Arkansas

Department of Correction. His attorney has filed this most recent brief purportedly prepared

pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules of the

Arkansas Supreme Court and Court of Appeals. Mr. Weaver continues to exercise his right

to file pro se points for reversal. We return the case to Weaver’s counsel for rebriefing

because the requirements of Anders, supra, and our Rule 4-3(k) have still not been satisfied.

Counsel has not listed and addressed all of the adverse rulings in this case, explaining how each Cite as 2014 Ark. App. 34

such ruling could provide no meritorious grounds for appeal, as required by Anders, supra, and

our Rule 4-3(k).

Counsel is again advised to thoroughly review the Anders case and our Rule 4-3(k)

concerning the requirements for submitting a no-merit brief. Our mention in earlier opinions

of particular adverse rulings that were not addressed does not in any way mean that there are

no other adverse rulings that were omitted or that the record has been adequately abstracted,

the addendum properly prepared, or the issues properly addressed. It is counsel’s responsibility

to comply with the requirements for submitting a no-merit brief.

As we previously explained:

Further, in Weaver, supra, we cautioned counsel that he is obligated in a no- merit brief to list every adverse ruling and explain how each ruling could provide no meritorious grounds for appeal. “Every adverse ruling” includes not only original motions that were denied, but also denials of any renewals of motions (for example, trial arguments that evidence presented had opened the door for reconsideration of the original motion). In Sartin v. State, 2010 Ark. 16, at 1, 362 S.W.3d 877, 878, we certified the following question to our supreme court: “whether a single omission from a no-merit brief necessarily requires rebriefing.” The supreme court held that it does.

Weaver, 2013 Ark. App. 310, at 2–3. Our independent review of the record continues to

demonstrate that several adverse rulings have again been omitted.

Counsel’s substituted brief, abstract, and addendum are due within fifteen days from

the date of this decision. We express no opinion as to whether the substituted brief should

be submitted pursuant to Rule 4-3(k) or on meritorious grounds. If a no-merit brief is filed,

counsel’s motion to withdraw and brief will be forwarded by our clerk to Mr. Weaver so that,

within thirty days, he will again have the opportunity to raise any points he so chooses. Ark.

Sup. Ct. R. 4-3(k)(2) (2013). Also, the State shall be afforded the opportunity to file a

2 Cite as 2014 Ark. App. 34

responsive brief. Ark. Sup. Ct. R. 4-3(k)(3).

We inform counsel that repeated future failure to comply with the requirements for

filing a no-merit brief outlined in Anders, supra, and our Rule 4-3(k) will be referred to the

Committee on Professional Conduct.

Rebriefing ordered; motion to withdraw denied.

WALMSLEY and VAUGHT, JJ., agree.

Van Buskirk Law Firm, by: James M. Van Buskirk, for appellant.

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