A Hоward County jury convicted appellant Jeff Walton of delivery of crack cocaine and sentenced him to 360 months in the Arkansas Department of Correction. Garnet Norwood, appellаnt’s attorney, petitions this court to withdraw as counsel. The motion was accompanied by a no-merit brief, pursuant to Anders v. California,
In Anders v. California, supra, the United States Supreme Court discussed an attorney’s obligation to his client when confronted with an appeal that he believes would be wholly without merit. Even though it recognized that an attorney may correctly conclude that an appeal on behalf of client would be without merit, it still recognized his obligation to protect his client’s Sixth Amendment rights:
The constitutional requirement of substantial equality and fair process cаn only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. . . . Counsel should, and can with honor and without сonflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the rеcord that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirеments are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
Id. at 744 (footnote reference omitted). Although the Supreme Court later held that this exact procedure was not mandated upon the States and that the States were free to adopt their own procedures, see Smith v. Robbins,
(Emphasis added.) See also Eads v. State,
When this case was first before this court in Walton v. State, CACR 03-395 (Ark. App. June 30, 2004) (not designated for publication), Mr. Norwood only addressed the sufficiency of the evidence and the trial court’s admission of appellant’s statement. These constituted only two of the over twenty adverse rulings in this case. Meanwhile, his client sought review of nine points, six of which were indeed addressed at trial. Mr. Norwood’s brief in Walton v. State, CACR 03-395 (Ark. App. Jan. 12, 2005) (not designated for publication) still failed to abstract or discuss the voir dire proceedings, in which sеveral objections were made. In some cases, he identified the ruling but merely stated, without explanation, that the trial court’s ruling did not constitute reversible error. Other rulings went completely unaddressed. Again, wе denied his motion to withdraw and ordered rebriefing. This case was before us a third time in Walton v. State, CACR 03-395 (Ark. App. June 29, 2005) (not designated for publication). Mr. Norwood included several adverse rulings that were identified in our рrevious opinions; however, other rulings remained absent from his brief. We particularly noted his failure to address the denial of his motion for a new trial and the denial for individual voir dire ofjurors. We once again reordered rebriefing but not before making it clear that:
[Counsel] is to address all adverse rulings, regardless of whether we identified that ruling for him or not. While it is this court’s duty to fully examine the record to determine if an aрpeal 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.
With these words, we hoped that Mr. Norwood would thoroughly review the record in this case and submit a brief (either adversarial or no-merit) that complied with our rules. However, like his previous briefs, it is clear that counsel has merely taken those flaws that we identified for him and appended those sеctions to the end of his existing brief.
1
Today, we are concerned that counsel’s discussion of the motion to suppress the statement was not adequately addressed. Several arguments were made with rеgard to the statement, including that said statement was general in nature and that the statement was induced by false promises.
2
Yet, counsel merely restates a portion of the relevant facts and contends that the statement was harmlessly admitted. We are also dissatisfied with counsel’s abstract of the proceedings. Our rules require that the abstract in a no-merit brief contain all rulings adverse to his client. In many places, counsel merely summarized
Rule 16(a) of the Arkansas Rules of Appellate Procedure - Criminal (2005) requires appellant’s counsel to remain as his counsel throughout any appeal unless permitted by this court to withdraw in the interest of justice or for other sufficient cause. Rule 1.1 of the Arkansas Rules of Professional Conduct states, “A lawyer shall provide competent representation to a client.” The requirement of competent representation of a client’s interest is not set aside simply because counsel is of the opinion that an appeal of his client’s case is wholly without merit. Appellant chose Mr. Norwood to be his counsel, and as long as appellant continues to have him as his counsel, Mr. Norwood has an obligation to submit a brief in which his client’s Sixth Amendment rights are protected, be it in the form of an adversarial brief or a no-merit brief. Mr. Norwood’s work in this appeal falls short of meeting his obligations under our rules of professional conduct and the Sixth Amendment to the Constitution. We are unable to assess why counsel persists in filing no-merit briefs that come so short of the constitutional and procedurаl standard. However, we are certain that the latest submission, like the briefs that were previously rejected, does not pass muster.
In the case of an indigent appellant, we would have removed Mr. Norwood as counsel and appointed new appellate counsel to represent appellant. Because we have no knowledge of either the current relationship betwеen Mr. Norwood and appellant or appellant’s ability to pay for legal services, we cannot do so in this case. See James v. State,
Remanded for rebriefing.
Notes
In his latest brief, counsel did address the denial of the motion for new trial, and this section оf the brief was inserted after his discussion of why the denial of his motion for continuance during that hearing was without merit. However, this is one of the few arguments that was not simply appended to the end of his existing brief.
If counsel decides to submit another no-merit brief, we would also like him to address the material-witness rule which states that “whenever an accused offers testimony that his confession was induced by violence, threаts, coercion or offers of reward, the State has the burden to produce all material witnesses who were connected with the controverted confession or give an adequate explanation of their absence.” Criffin v. State,