2021 Ark. App. 299
Ark. Ct. App.2021Background
- Appellant Joshua Miller was convicted after a two-day jury trial (three consolidated cases tried together) of possession of methamphetamine (Class D felony) and possession of suboxone (Class A misdemeanor) in circuit-court case no. 03CR-18-155.
- At trial, Officer Josh Evans testified that he stopped Miller for a traffic violation on April 7, 2018, found a white crystalline substance and orange strips, and Miller admitted they were methamphetamine and suboxone; the substances were admitted into evidence.
- The state crime-lab analyst tested the crystalline substance (positive for methamphetamine) and opined the orange strips were consistent with suboxone but did not chemically test them.
- On appeal, Miller’s counsel filed an Anders/no-merit brief seeking permission to withdraw under Ark. Sup. Ct. R. 4-3(k)(1), asserting there were no meritorious grounds for appeal; the clerk sent Miller notice of his right to file pro se points, but Miller filed none.
- The appellate court reviewed the record and found the no-merit brief deficient because it failed to address several adverse rulings in the record, including motions for directed verdict, as required by Anders and Rule 4-3(k)(1).
- The court ordered rebriefing: denied counsel’s motion to withdraw without prejudice, gave counsel 15 days to file a substituted brief complying with the rule, and preserved Miller’s right to file pro se points within 30 days after the substituted brief is served.
Issues
| Issue | Miller's Argument | State's Argument | Held |
|---|---|---|---|
| Whether counsel’s Anders/no-merit brief complied with Rule 4-3(k) | Counsel asserted the appeal was wholly without merit and sought to withdraw | The record shows the brief omitted discussion of several adverse rulings, so it was noncompliant | Brief was noncompliant; rebriefing ordered and withdrawal denied without prejudice |
| Whether counsel must brief every adverse ruling (including directed-verdict motions) | Implicitly argued no meritorious issues existed so detailed coverage unnecessary | Rule 4-3(k)(1) requires briefing every adverse ruling; omissions undermine Anders protections | Counsel failed to address several motions for directed verdict; rebriefing required |
| Whether appellant received procedural notice to file pro se points | Miller had been mailed counsel’s brief and notice of right to file pro se points | Court ensures appellant will have opportunity after substituted brief is filed | Clerk will forward substituted brief; Miller has 30 days to file pro se points |
| Appropriate remedy and timetable for deficient Anders brief | Counsel sought to withdraw immediately | Court required compliance with Anders/Rule 4-3(k) before permitting withdrawal | Motion to withdraw denied; counsel given 15 days to file substituted brief |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (establishes counsel’s duties when seeking to withdraw on grounds that appeal is frivolous)
- T.S. v. State, 534 S.W.3d 160 (Ark. Ct. App. 2017) (counsel must support Anders withdrawal with a full examination of the record to ensure appeal is frivolous)
- Jester v. State, 553 S.W.3d 198 (Ark. Ct. App. 2018) (no-merit brief that omits adverse rulings does not satisfy Rule 4-3(k)(1) and requires rebriefing)