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ARKANSAS COURT OF APPEALS

DIVISION IV

No. CR-16-108

JAMES LEE MCPHERSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered: January 18, 2017

APPEAL FROM THE FAULKNER

COUNTY CIRCUIT COURT

[NO. 23CR-14-968]

HONORABLE CHARLES E. 

CLAWSON, JR., JUDGE

REBRIEFING ORDERED; MOTION 

TO WITHDRAW DENIED WITHOUT 

PREJUDICE

KENNETH S. HIXSON, Judge

Appellant was convicted by a Faulkner County jury of three counts of rape and was 

sentenced to serve a total of 900 months’ imprisonment. Appellant’s attorney has filed a 

no-merit brief and a motion to withdraw as counsel pursuant to Arkansas Supreme Court 

Rule 4-3(k) (2016) and Anders v. California, 386 U.S. 738 (1967), asserting that this appeal 

is wholly without merit. The motion is accompanied by an abstract and addendum of the 

proceedings below, alleged to include all objections and motions decided adversely to 

appellant, and a brief in which counsel explains why there is nothing in the record that 

would support an appeal. The clerk of this court mailed a copy of counsel’s motion and 

brief to appellant’s last-known address informing him of his right to file pro se points for 
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reversal; however, he has not done so.1 Consequently, the attorney general has not filed a 

brief in response. However, counsel’s no-merit brief is not in compliance with Anders and 

Rule 4-3(k). Therefore, we order rebriefing and deny without prejudice counsel’s motion 

to withdraw.

It is imperative that counsel follow the appropriate procedure when filing a motion 

to withdraw. Walton v. State, 94 Ark. App. 229, 228 S.W.3d 524 (2006). To further the 

goal of protecting constitutional rights, it is both the duty of counsel and of this court to 

perform a full examination of the proceedings as a whole to decide if an appeal would be 

wholly frivolous. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001). Arkansas 

Supreme Court Rule 4-3(k) provides in pertinent part,

Any motion by counsel for a defendant in a criminal or a juvenile delinquency case 

for permission to withdraw made after notice of appeal has been given shall be 

addressed to the Court, shall contain a statement of the reason for the request and 

shall be served upon the defendant personally by first-class mail. A request to 

withdraw on the ground that the appeal is wholly without merit shall be 

accompanied by a brief including an abstract and Addendum. The brief shall contain 

an argument section that consists of a list of all rulings adverse to the defendant made by the 

circuit 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. The abstract and 

Addendum of the brief shall contain, in addition to the other material parts of the 

record, all rulings adverse to the defendant made by the circuit court.

(Emphasis added.)

We note that counsel omits large portions of the record in the abstract, including 

failure to abstract all adverse rulings as required. Additionally, counsel failed to address all 

adverse rulings in his argument and provide an explanation as to why there is nothing in the 

 

1The packet was mailed to appellant by certified mail, and a return receipt indicates 

that delivery was accepted.
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record that would support an appeal, as he is required to do. Rather than listing each adverse 

ruling in chronological order, counsel categorizes the related adverse rulings and provides a 

brief explanation as to why each category of adverse rulings does not present a meritorious 

ground for reversal. In doing so, counsel fails to abstract and address at least two adverse 

rulings. Specifically, the trial court denied appellant’s motion to excuse a potential juror 

during jury voir dire as reflected in the record on pages 255–56. Additionally, during trial, 

appellant objected to the admission of exhibit 22, and the trial court admitted exhibit 22

into evidence, over appellant’s objection, as reflected in the record on pages 376–77. In a 

criminal no-merit appeal, counsel is required to abstract and discuss every adverse ruling, in 

order to comply with Rule 4-3(k) and Anders, supra, and we must order rebriefing if counsel 

fails to do so. Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877. Finally, we note that counsel’s 

addendum fails to include the State’s pretrial response to appellant’s motion to suppress and

any of the exhibits appellant objected to at trial. Arkansas Supreme Court Rule 4-2(a)(8)(A)

(2016) requires that the addendum contain all relevant pleadings, orders, documents, and 

exhibits in the record that are essential to an understanding of the case. Sims v. State, 2015 

Ark. App. 11.

Pursuant to Rule 4-2(b)(3), we afford appellant’s counsel an opportunity to cure 

these deficiencies. Counsel is directed to file a substituted abstract, brief, and addendum 

within fifteen days from the date of this opinion. The deficiencies noted above should not 

be taken as an exhaustive list, and we encourage counsel, prior to filing a substituted brief, 

to carefully review Rules 4-2 and 4-3 to ensure that no additional deficiencies exist. We 

express no opinion as to whether the new appeal should address the merits or should be 
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made pursuant to Rule 4-3(k). Whittier v. State, 2015 Ark. App. 183. If a no-merit brief is 

filed, counsel’s motion and brief will be forwarded by the clerk to appellant so that, within 

thirty days, he will again have the opportunity to raise any points he chooses in accordance 

with Rule 4-3(k)(2). In either instance, the State shall be afforded the opportunity to file a 

brief in response. Cox v. State, 2015 Ark. App. 132.

Rebriefing ordered; motion to withdraw denied without prejudice.

GRUBER, C.J., and VIRDEN, J., agree.

Joseph C. Self, for appellant.

No response.