Mace v. State

DAVID M. GLOVER

APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT [CR-2009-121]
HONORABLE WILLIAM M. PEARSON, JUDGE

REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED

DAVID M. GLOVER
, Judge

This is the second time this case has been before our court. Appellant Terry Mace was found guilty in a jury trial of aggravated robbery; the conviction was enhanced based on the use of a firearm during the offense. Mace was sentenced to fifteen years on the aggravated-robbery conviction, with an additional five years for the firearm enhancement.

In the first appeal, Mace's counsel filed a motion to withdraw. The clerk of our court furnished appellant with a copy of his counsel's brief and notified him of his right to file pro se points. Mace initially filed pro se points, some of which concerned jury selection; however, voir dire of the jury was not included in the record, even though it is required for briefs presented in the no-merit format. See Hadley v. State, 2010 Ark. App. 536 (entire record of proceedings necessary to properly review a criminal case presented in an Anders, no-merit format). On June 29, 2011, our court denied Mace's counsel's motion to withdraw as counsel and remanded the case to settle and supplement the record because counsel had not designated the entire record to be brought up on appeal. Mace v. State, 2011 Ark. App. 472.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has again filed a motion to withdraw on the grounds that the appeal is without merit. Counsel's motion was accompanied by a brief allegedly referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to appellant made by the trial 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.

Notwithstanding that counsel has now included voir dire in the record, we must remand for a second time. Counsel has added over 100 pages of supplemental abstract of jury voir dire, but he has submitted the supplemental abstract in question-and-answer format, which is expressly forbidden by Rule 4-2(a)(5)(B) of the Rules of the Supreme Court and Court of Appeals. This rule provides, in pertinent part:

The abstract must not reproduce the transcript verbatim. No more than one page of a transcript shall be abstracted without giving a record page reference. In abstracting testimony, the first person ("I") rather than the third person ("He or She") shall be used. The question-and-answer format shall not be used.

(Emphasis added.) Because the supplemental abstract does not comply with our rules, we remand for rebriefing a second time.

We further note that there are at least two adverse rulings that were not abstracted. Additionally, the pagination cited in the argument portion of the brief does not match the pagination of the abstract. These are merely examples and are not to be taken as an exhaustive list of deficiencies. "While it is this court's duty to fully examine the record to determine if an appeal would be wholly without merit, it is not our duty to do so with the purpose of instructing counsel what to include in a no-merit brief." Walton v. State, 94 Ark. App. 229, 232, 228 S.W.3d 524, 526 (2006). We strongly encourage appellant's counsel to review our rules for filing no-merit briefs to ensure that any subsequent brief is in compliance.

Rebriefing ordered; counsel's motion to withdraw is denied.

GRUBER and HOOFMAN, JJ., agree.