Attorney Filed Not Adequate Brief In Revocation Hearing

Ineffective assistance of counsel at revocation hearing argument on violating suspended sentence by possessing drugs:

The Sebastian County Circuit Court found X violated the terms of his suspended sentence by possessing cocaine. the court revoked his suspended sentence, and he has filed a pro se appeal with this court, alleging he received ineffective assistance of counsel at the revocation hearing.

Pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and Arkansas Supreme Court Rule 4-3(j), appellant's counsel has filed a no-merit brief, and petitions this court to withdraw as counsel. However, counsel's brief fails to comply with the requirements of Rule 4-3(j) and therefore, we order for rebriefing.

Appellant contends he did not receive a copy of the trial transcript. However, this court has no record that the appellant requested a copy of the trial transcript and demonstrated that his counsel's brief is inadequate to address a specific issue that the appellant intends to raise in his pro se brief. See In Re Pro Se Motion for Transcripts Filed Pursuant to Rule 11(h) now Arkansas Supreme Court Rule 4-3(j), 283 Ark. 537 (1984).

Rule 4-3(j) requires that the brief accompanying a request to withdraw as counselor must address all rulings adverse to the appellant made by the trial court on all objections, motions, and requests and shall explain why each adverse ruling is not a meritorious ground for reversal. Adaway v. State, 62 Ark. App. 272, 972 S.W.2d 257 (1998).

Appellant's counsel fails to adequately abstract the terms and conditions of appellant's suspended sentence and State's basis for filing the petition for revocation that led to this appeal.

Counsel merely provides a one-sentence summary of each. Because this appeal involves the revocation of appellant's suspended sentence, we must be fully apprised of the terms and conditions of the appellant's suspended sentence, as well as which of those terms and conditions were allegedly violated.

The appellant received two adverse rulings below: the trial court overruled an objection to a police officer's testimony regarding the fruits of the search of appellant's car, and denied appellant's motions to dismiss the possession charge.

Appellant's counsel failed to abstract and analyze the merit of the appellant's objection to the testimony regarding the search, presumably because he erroneously concluded the issue was not preserved for appeal.

However, the record shows that although the trial court did not immediately rule on the objection, after the officer's brief testimony regarding the search, the trial court "denied" the appellant's "motion."

Therefore, it is arguable whether the issue was preserved for appeal, and counsel should abstract and address this issue.

The trial court also denied the appellant's motions to dismiss the possession charge. Counsel's argument regarding the sufficiency of the evidence of possession, in full, is as follows: "The trial court could choose to believe the testimony of Mr. X that he bought cocaine from appellant and appellant gave him some to throw out.

As a consequence, the trial court could correctly overrule appellant's motion to dismiss the count involving possession of narcotics." Counsel then cites the standard of review that we apply to appeals from revocation proceedings, and concludes the revocation was not clearly against the preponderance of the evidence.

This cursory discussion is not supported by any citation to authority and clearly does not serve as an adequate examination of the sufficiency of the State's evidence.

As such, on remand, appellant's counsel should set forth the State's evidence and explain why, on appeal, an argument that the evidence was not sufficient to revoke the appellant's suspended sentence would be without merit.

As the appellant notes in his pro se brief, counsel's "bare no-merit conclusion was not and is not an adequate substitute for the appellant's right to full appellate review."

We agree and direct counsel to file a new brief within thirty days from the date of this opinion. See Skiver v. State, 330 Ark. 432, 954 S.W.2d 913 (1997); Adaway v. State, supra.

In accordance with Rule 4-3(j)(2), appellant will then have thirty days from the date he is served a copy to raise any additional points on appeal.

Rebriefing ordered.