Debert Morgan v. State of Arkansas

Cite as 2021 Ark. App. 8
Digitally signed by Elizabeth
Perry
ARKANSAS COURT OF APPEALS
Date: 2022.08.15 10:58:46 DIVISION I
-05'00' No. CR-19-973
Adobe Acrobat version:
2022.002.20191 OPINION DELIVERED: JANUARY 13, 2021

DEBERT MORGAN
APPELLANT APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
[NO. 30CR-18-367]
V.
HONORABLE CHRIS E WILLIAMS,
JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED; MOTION
TO WITHDRAW DENIED

ROBERT J. GLADWIN, Judge

In this no-merit appeal, appellate counsel for Debert Morgan moved to withdraw

and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme

Court Rule 4-3(k)(1) (2020), alleging that there is no merit to an appeal of Morgan’s

aggravated-residential-burglary and first-degree-battery convictions. Morgan filed pro se

points for reversal, and the State filed a responsive brief. We deny counsel’s motion and

order rebriefing.

Rule 4-3(k)(1) requires that the argument section of a no-merit brief contain
“a list of all rulings adverse to the defendant made by the circuit court on all
objections, motions and requests . . . with an explanation as to why each is not a
meritorious ground for reversal.” The requirement for abstracting and briefing every
adverse ruling ensures that the due-process concerns in Anders are met and prevents
the unnecessary risk of a deficient Anders brief resulting in an incorrect decision on
counsel’s motion to withdraw. Id. Pursuant to Anders, we are required to determine
whether the case is wholly frivolous after a full examination of all the proceedings.
T.S. v. State, 2017 Ark. App. 578, 534 S.W.3d 160. A no-merit brief in a criminal
case that fails to address an adverse ruling does not satisfy the requirements of Rule
4-3(k)(1), and rebriefing will be required. Jester v. State, 2018 Ark. App. 360, 553
S.W.3d 198.
Pettigrew v. State, 2019 Ark. App. 336, at 2.

Morgan was charged in the Hot Spring County Circuit Court with aggravated

assault, aggravated residential burglary, and first-degree battery, and he pled not guilty on

January 8, 2019. When the August 29 jury trial began, the circuit court recited the charges

against Morgan and stated that Morgan had pled not guilty. Defense counsel asked to

approach the bench and stated, “Mr. Morgan has proposed to agree to a plea of thirty [years’

imprisonment] in the [Arkansas] Department of Correction on the charges as they stand.”

The circuit court responded, “No.” Because this adverse ruling was not addressed in

counsel’s no-merit brief, we require rebriefing.

In his brief, counsel also conflates three adverse rulings made during Officer Jack

Seely’s testimony for the State. Counsel’s objections were based on either hearsay or

relevance, but counsel addresses only the adverse ruling made during the officer’s testimony

regarding a second call to police from the Watkins residence. Counsel fails to address the

objection and adverse ruling made when Officer Seely described the first time he arrived at

the scene and the objection and adverse ruling made when Officer Seely testified that

Morgan returned to the Watkins house.

We encourage counsel to review Anders and Arkansas Supreme Court Rule 4-3(k)

for the requirements of a no-merit brief and to consider that there may be further

deficiencies. Counsel has fifteen days from the date of this opinion to file a substituted brief

that complies with the rules. Ark. Sup. Ct. R. 4-2(b)(3) (2020). After counsel has filed the

substituted brief, our clerk will forward counsel’s motion and brief to Morgan, and he will

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have thirty days within which to raise pro se points in accordance with Rule 4-3(k). The

State will likewise be given an opportunity to file a responsive brief if pro se points are filed.

Rebriefing ordered; motion to withdraw denied.

HARRISON, C.J., and BROWN, J., agree.

Gregory Crain, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.

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