Benton v. StateBenton v. State
- Reporters:
- , ,
- Before:
- Cooper
Lead Opinion
The appellant in this criminal case was tried on February 2, 1994, found guilty of theft, and sentenced as an habitual offender to twenty years in the Arkansas Department of Correctiоn. From that decision, comes this appeal.
For reversal, the appellаnt contends that his trial counsel was ineffective. We do not reach this issue becаuse it is not preserved for appeal.
The appellant failed to raise the issue of ineffective assistance in the trial court, and the record has consequently not been developed on that issue. Because ineffective assistаnce of counsel may not be raised on direct appeal unless the issue hаs been considered by the trial court, Sumlin v. State, 319 Ark. 312, 891 S.W.2d 375 (1995), we will not address it for the first time on apрeal.
Affirmed.
Robbins and Mayfield, JJ„ dissent.
Dissenting Opinion
dissenting. This court has today affirmed appellant’s conviction of theft and sеntence as an habitual offender to twenty years in the Arkansas Department of Correction. I think the case should be rebriefed, and the case should be removed from active submission until the rebriefing is completed.
The crime for which the appellаnt was convicted was alleged to have occurred in 1991. The first conviction was reversed and the case remanded for a new trial. The attorney in this appeаl has submitted a brief which includes an abstract of the pleadings and the testimony in the case. Counsel on appeal did not represent appellant in the last trial, but in the argument portion of his brief counsel tells us that as a public defender he has been instructed to prosecute this appeal. He also tells us that the appellant has instructed him to appeal the case on the basis that appellаnt was not effectively represented by counsel at trial. Counsel then tells us why there is no merit to the issue of ineffective assistance of counsel. Of course, as pоinted out by the majority opinion, the issue of ineffective assistance of counsеl was not raised in the trial court. Therefore, the issue cannot be raised in this apрeal but would have to be raised in a post-conviction proceeding under Arkаnsas Rule of Criminal Procedure 37.
However, the record as abstracted by counsеl on appeal shows that appellant had a bifurcated trial and that trial сounsel made a motion requesting the court not to follow the jury’s verdict as to sentencing but that the judge set the sentence himself. Counsel argued that the jury’s verdict of twenty yeаrs was excessive under the circumstances in this case and because apрellant’s prior convictions were not violent. Although the judge denied appellant’s motion,
In Evitts v. Lucey, 469 U.S. 387, 392 (1985), the Supreme Court said that the Fourteenth Amendment tо the Constitution of the United States guarantees a criminal appellant pursuing a first аppeal the right to counsel. The Court also said that the right to counsel creаted by the Sixth Amendment, which applies to the states through the Fourteenth Amendment, comрrehends the right to effective assistance of counsel at the appellate level. And while Anders v. California, 386 U.S. 738 (1967), allows counsel to file a “no-merit” brief under certаin circumstances, we have a rule that governs those appeals. See Rulе 4-3(j)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals. Here, however, the appellant’s counsel did not follow those rules, but has in effect filed a no-mеrit brief. Actually, the sentencing issue — which is not argued — does not appear to be а “no-merit” issue. Thus, it would appear that the effective assistance of counsеl contemplated by Evitts v. Lucey would require that issue to be argued.
Even in appeals where no-merit briefs have been filed under the authority of Anders, we have required rebriefing in adversary form. See Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994).
Therefore, I think the sentencing issue should be briefed in that form in this case, and I dissent from the majority opinion which does not order rebriefing.
Robbins, J., joins in this dissent.