Kou Her v. State

• Decision Date: 05 March 2015
• Docket Number: No. CR–14–580,CR–14–580
• Citation: 2015 Ark. 91,457 S.W.3d 659
• Parties: Kou Her, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Supreme Court

2015 Ark. 91

457 S.W.3d 659

Kou Her, Appellant

v.State of Arkansas, Appellee

No. CR–14–580

Supreme Court of Arkansas.

Opinion Delivered March 5, 2015

John C. Burnett, for appellant.

Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

Opinion

KAREN R. BAKER, Associate Justice

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4–3(k)(1) (2014), appellant Kou Her's counsel, John Cameron Burnett, has filed a no-merit brief and a motion to withdraw asserting that there are no nonfrivolous arguments that would arguably support an appeal.

After a three-day jury trial, on December 10–12, 2013, a Johnson County jury convicted Her of the following charges: (1) first-degree murder with a sentence of life imprisonment; (2) aggravated residential burglary with a sentence of life imprisonment; (3) attempted kidnapping with a sentence of 30 years' imprisonment; (4) first-degree battery with a sentence of 15 years' imprisonment; and (5) aggravated assault with a sentence of two years' imprisonment. All the sentences were to run consecutively.

On September 25, 2014, Burnett filed a motion to withdraw and a no-merit brief. On October 24, 2014, Her filed his own points for reversal pursuant to Arkansas Supreme Court Rule 4–3(k)(2). On November 20, 2014, the State responded to Her's pro se brief.

Our Rule 4–3(k), which is based on Anders, sets forth the framework for constitutionally permissible no-merit briefs. In order to satisfy Rule 4–3(k) and the framework set forth in Anders, counsel is required to file an abstract and addendum of the proceedings below, including 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. Rule 4–3(k)(1) states in pertinent part:

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.

Id. (emphasis added).

A no-merit brief that fails to address an adverse ruling does not satisfy the requirements of Rule 4–3(k)(1) and must be rebriefed. Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877 (per curiam). In Sartin, we explained:

As the Sixth Amendment extends the right to effective assistance of counsel to appeals from convictions, Anders briefs were created as a prophylactic framework to satisfy Fourteenth Amendment due-process concerns when an attorney wished to withdraw from a meritless appeal. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ; Anders, 386 U.S. 738, 87 S.Ct. 1396. The United States Supreme Court has held that states are allowed wide discretion, subject to constitutionally guaranteed minimums, to fashion procedures and policies for dealing with Anders briefs and no-merit appeals. Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). By requiring every adverse ruling to be abstracted and briefed, we have ensured that the due-process concerns in Anders are met and that the unnecessary risk of a deficient Anders brief resulting in an incorrect decision on trial counsel's motion to withdraw is avoided. We see no reason to lessen these protections, and we hold that, in a criminal case, on direct appeal, a no-merit brief that fails to address an adverse ruling does not satisfy the requirements of Rule 4–3(k)(1) and must be re-briefed.

Sartin, 2010 Ark. 16, at 3–8, 362 S.W.3d at 879–82 (emphasis added).

Our language in Sartin is clear. In criminal cases the procedures we have fashioned to comply with Anders, by adopting Rule 4–3(k)(1), require every adverse ruling to be briefed in a no-merit appeal. See Thompson v. State, 2014 Ark. 79 (per curiam) (where Thompson was sentenced to life imprisonment, we stayed Thompson's counsel's motion to withdraw and ordered rebriefing because he failed to fully comply with the requirements of Anders and our Rule 4–3(k) ). However, in James v. State, 2010 Ark. 486, 372 S.W.3d 800 (per curiam), in a footnote, we stated that

Counsel did not include as adverse rulings the court's response to two objections made by the State during cross-examination of [a witness]. The objections are included in the abstract and could arguably be construed as adverse. We do not order rebriefing, however, because the circumstances here are unlike those in Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877 (per curiam). Here, the abstract and the broader scope of our required [4–3(i) ] review of the record are sufficient to confirm that the rulings were not prejudicial, even if adverse.

Id. at 3, 372 S.W.3d at 804 n.2. This is clearly in conflict with the United States Supreme Court's holding in Anders and our holding in Sartin. Accordingly, to the extent that James conflicts with this opinion, we overrule it. However, the dissent maintains that James is still good law and need not be overruled. The dissent states:

James is distinguishable from Sartin because Appellant James was sentenced to life imprisonment for his first-degree murder conviction, and we ultimately reached the merits of the circuit court's “arguably” adverse rulings, pursuant to our required Rule 4–3(i) review. This court has previously ordered rebriefing in life-imprisonment cases. See, e.g., Thompson v. State, 2014 Ark. 79 (per curiam); Dewberry v. State, 341 Ark. 170, 15 S.W.3d 671 (2000) ; Skiver v. State, 330 Ark. 432, 954 S.W.2d 913 (1997) (per curiam). Notwithstanding these holdings, James is still good law. In death and life-imprisonment cases, this court must adhere to Rule 4–3(i), which provides as follows:

When the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark.Code Ann. § 6–91–113(a). To make that review possible, the appellant must abstract, or include in the Addendum, as appropriate, all rulings adverse to him or her made by the circuit court on all objections, motions and requests made by either party, together with such parts of the record as are needed for an understanding of each adverse ruling. The Attorney General will make certain and certify that all of those objections have been abstracted, or included in the Addendum, and will brief all points argued by the appellant and any other points that appear to involve prejudicial error.

Thus, given our mandatory review of the record pursuant to Rule 4–3(i), as well as our holding in James, I contend that this court must review any adverse rulings in the instant case pursuant to Rule 4–3(i). In doing so, I do not advocate that this court perform an attorney's job as required by Anders and Rule 4–3(k). To the contrary, if attorneys fail to comply with the requirements for filing a no-merit brief in these circumstances, they should be referred to the Committee on Professional Conduct. Moreover, our rules committee should review any apparent discrepancy between Rule 4–3(i) and Rule 4–3(k). In the meantime, this court should hear Her's no-merit appeal. To that end, judicial economy prevails.

This analysis is incorrect. James cannot remain good law because it is in direct contravention of the United States Supreme Court holding in Anders. In Anders, the Supreme Court explained its holding:

The constitutional requirement of substantial equality and fair process can 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. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, 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.... It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel.... This procedure will assure penniless defendants the same rights and opportunities on appeal—as nearly as is practicable—as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.

Anders, 386 U.S. at 744–45, 87 S.Ct. 1396 (emphasis added) (footnote omitted).

Accordingly, Anders requires a no-merit brief by defense counsel, and once the brief is filed and the defendant has adequate time to respond, then the appellate court conducts “its own review.” Simply put, the role of the appellate court is to perform its own review, not act as an advocate for the defendant. However, the dissent mistakenly conflates the requirements of defense counsel pursuant to Anders and the requirements for our review pursuant to Rule 4–3(i). Rule 4–3(i) places a duty on this court “when the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant,” which is wholly separate from defense counsel's duty prescribed in Anders. Stated differently, Anders applies to advocates and Rule 4–3(i) applies to the appellate court's review. These two requirements are not one in the same and our Rule 4–3(i) review cannot serve as a substitute for defense counsel's responsibilities pursuant to Anders and Rule 4–3(k).

In Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), the United States Supreme Court addressed an alleged error in appellate review that arose when an appellate court affirmed a criminal defendant's convictions despite permitting defense counsel to withdraw without filing an Anders brief. Penson was an indigent defendant whose appointed appellate counsel was allowed to withdraw based on a conclusory statement that...