ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

RONNIE L. LASTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-250

January 24, 2001

APPEAL FROM THE IZARD

COUNTY CIRCUIT COURT

[CR-98-1]

HONORABLE JOHN DAN KEMP, JR., CIRCUIT JUDGE

REBRIEFING ORDERED;

COUNSEL'S MOTION TO

WITHDRAW DENIED

Ronnie Laster, an inmate at the Arkansas Department of Correction at Calico Rock, was charged with the Class B felony of introducing a prohibited article, marijuana, into a correctional facility. Laster was tried before the bench and convicted of the charge; he now appeals the conviction. Appellant's attorney, relying upon Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j)(1), has filed a motion to withdraw and a brief stating that there is no merit to the appeal.

Counsel's brief notes that the only rulings adverse to appellant at the trial phase were the denials of appellant's motions for directed verdict, made at the conclusion of the State's case and after the defense rested. The brief contains explanations as to why counsel considers the rulings not to be meritorious grounds for reversal. The State has notified this court that it does not intend to file a brief in the absence of a pro se brief by appellant, but that it will file a brief should the case later be briefed on the merits.

In Ofochebe v. State, 40 Ark. App. 92, 93, 844 S.W.2d 373, 374 (1992), we explained the standard of review when an appellant's counsel asks to be relieved and states that there is no merit to his client's appeal:

The test is not whether counsel thinks the trial court committed no reversible error, but rather whether the points to be raised on appeal would be "wholly frivolous." Anders, 386 U.S. at 744 . . . . Similarly, Rule 11(h) permits the filing of a no-merit brief only when "the appeal is wholly without merit."

In the present case, as in Ofochebe, we are not convinced that the appeal is wholly without merit or "so frivolous that it may be decided without an adversary presentation." See Penson v. Ohio, 488 U.S. 75, 82 (1988).

Appellant was charged under Ark. Code Ann. § 5-54-119 (Repl. 1997), which states under subsection (a)(1) that a person commits the offense of furnishing a prohibited article if he knowingly introduces a prohibited article into a correctional facility. "Correctional facility" means any place used for the confinement of persons charged with or convicted of an offense or otherwise confined under a court order. Ark. Code Ann. § 5-54-101(1) (Repl. 1997).

Appellant moved for a directed verdict at the close of the State's case on the basis that the Calico Rock facility includes its fenced grounds; that defendant had never left the penitentiary; and that, therefore, he could not have introduced marijuana into the penitentiary. Appellant pointed out that prior to being searched, he had worked "within a 60-acrecompound with a fence which is attached to the sally port." In denying the motion, the trial court ruled that appellant "was on a work detail outside the area of confinement and returned from that area into a place that's used for confinement, that being the sally port within the confined area of the Department of Correction." The court issued the same ruling after the defense rested and renewed its motion for a directed verdict.

We find in this case that the denial of appellant's motions for a directed verdict presents an adversarial issue. We need not and do not determine whether error was committed, but merely hold that the allegation of error in the trial court's denial of the motions is not "wholly frivolous." See Ofochebe, supra. Therefore, we deny the motion of appellant's counsel to withdraw, and we remand the case for re-briefing on the merits.

Rebriefing ordering; counsel's motion to withdraw denied.

Robbins and Roaf, JJ., agree.