William Pettigrew v. State of Arkansas

2019 Ark. App. 336

• Court: Court of Appeals of Arkansas
• Decided: June 5, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 336 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.07.21 12:44:14 DIVISION II -05'00' No. CR-18-763 Adobe Acrobat version: 2022.001.20169

Opinion Delivered: June 5, 2019

WILLIAM PETTIGREW APPELLANT APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, V. NORTHERN DISTRICT [NO. 42PCR-17-89] STATE OF ARKANSAS APPELLEE HONORABLE JERRY RAMEY, JUDGE

REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED

MIKE MURPHY, Judge

Appellant William Pettigrew pleaded guilty in 2017 to the crime of possession of

drug paraphernalia and received a sentence of thirty-six months’ probation. The State filed

a petition to revoke Pettigrew’s probation in January 2018, alleging that Pettigrew had

absconded and not paid toward his fines, fees, or court costs, in violation of his probation

terms.

Following a hearing, the Logan County Circuit Court revoked Pettigrew’s probation

and sentenced him to seventy-two months in the Arkansas Department of Correction.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k)(1) of the Rules of

the Arkansas Supreme Court and Court of Appeals, Pettigrew’s attorney has filed a no-merit

brief and a motion to withdraw as counsel asserting that there is no issue of arguable merit for an appeal. Pettigrew was notified of his right to file pro se points for reversal, but he has

not filed any such points. We hold that appellant’s counsel’s no-merit brief is not in

compliance with Anders and Rule 4-3(k). Therefore, we order rebriefing and deny without

prejudice counsel’s motion to withdraw.

Rule 4-3(k)(1) requires that the argument section of a no-merit brief contain “a list

of all rulings adverse to the defendant made by the circuit court on all objections, motions

and requests. . .with an explanation as to why each. . .is not a meritorious ground for

reversal.” 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. Id. Pursuant

to Anders, we are required to determine whether the case is wholly frivolous after a full

examination of all the proceedings. T.S. v. State, 2017 Ark. App. 578, 534 S.W.3d 160. A

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

requirements of Rule 4-3(k)(1), and rebriefing will be required. Jester v. State, 2018 Ark.

App. 360, 553 S.W.3d 198.

Our review of this record demonstrates that counsel failed to address at least two

adverse ruling. Counsel adequately addressed the sufficiency of the evidence to support the

circuit court’s decision to revoke Pettigrew’s probation. Counsel did not, however, address

the circuit court’s failure to grant Pettigrew’s request for reinstatement of his probation or

for drug court. Pettigrew testified that he was asking the court for reinstatement of his

probation or for drug court because he was “willing to try” and because by the date of the

revocation hearing, he was in a better position to comply with the terms of his probation.

2 The circuit court did not grant reinstatement of probation or order drug court and sentenced

Pettigrew to six years in the Arkansas Department of Correction. Counsel failed to explain

why this would not be a meritorious ground for reversal on appeal, requiring rebriefing.

Counsel is encouraged to review Anders, supra, and Rule 4-3(k) of the Arkansas Rules

of the Supreme Court and Court of Appeals for the requirements of a no-merit brief.

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

with the rules. See Ark. Sup. Ct. R. 4-2(b)(3). 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 ordered; motion to withdraw denied.

VIRDEN and BROWN, JJ., agree.

Robert N. Jeffrey, Attorney at Law, by: Robert N. Jeffrey, for appellant.

One brief only.