ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

JAMES AL RICHARDS, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1456

JANUARY 9, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

FOURTH DIVISION

[NO. CR 99-3277]

HONORABLE JOHN W.

LANGSTON, CIRCUIT JUDGE

AFFIRMED

This is a no merit appeal. Appellant James Al Richards, Jr., was found guilty in Pulaski County Circuit Court of the first-degree terroristic threatening of James Matheney on or about July 19, 1999. Richards was determined to be a habitual criminal, having been convicted of five previous felonies. After his trial to the bench, he was sentenced to six years of imprisonment in the Arkansas Department of Correction. A timely notice of appeal was filed on his behalf.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and the Court of Appeals, appellant's counsel has filed a motion to withdraw as counsel on the ground that the appeal is without merit. Counsel's motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal and a statement of the reason why counsel considers there to be no pointthat might arguably support an appeal. Appellant was provided a copy of his counsel's brief and was notified of his right to file, within thirty days, a pro se response raising additional points for appeal, which he so filed. The State responded to appellant's filing, agreeing with appellant's counsel that there is no basis for a meritorious appeal and disagreeing with the bases asserted in appellant's response. We affirm appellant's conviction, and we grant counsel's motion to withdraw.

The first issue raises the sufficiency of the evidence to support a conviction for first-degree terroristic threatening. The trial to the bench was conducted on March 24, 2000, in which appellant was alleged to have confronted Ms. Richards, his ex-wife, and Mr. Matheny, the victim, as they walked to work in downtown Little Rock. Appellant tried to provoke a fight between himself and Mr. Matheny, and was accused of pulling a knife and threatening to attack Mr. Matheny with it. The conviction rested on this evidence, which appellant contests as insufficient to support it. The vast majority of appellant's pro se response to his counsel's Anders brief, as best we can ascertain, attacks the sufficiency of the evidence. However, because appellant did not move at trial for a directed verdict on this charge1, he waived any argument as to the sufficiency of the State's evidence against him. Ark. R. Crim. P. 33.1.

The other objections decided adverse to appellant do not provide any basis for a meritorious appeal either, and we discuss them herein. The first was as to a hearsayobjection lodged by the State that was sustained. This came about when appellant was testifying about his version of what happened. According to his testimony, appellant first approached Ms. Richards after exiting a bus, the day before the encounter leading to criminal charges, asking her if she was surprised to see him. As appellant was about to relate what Ms. Richards responded, which he managed to get out that she was not, the State objected on the basis that what Ms. Richards said would be hearsay. This objection was sustained. Appellant then continued, without objection, that they had discussed getting back together and that she agreed to work on it. Appellant stated that the next day, he saw Ms. Richards and Mr. Matheny together and approached her about her agreement to reconcile. Then, "one thing led to another" and the confrontation with Mr. Matheny began, though appellant denied being the aggressor.

While there may have been an exception to the hearsay rule that might have permitted Ms. Richards' statement into evidence, i.e., as a statement of the declarant's then-existing state of mind, appellant did not so argue thus waiving this argument on appeal. Even so, whether Ms. Richards was surprised to see appellant the day before the confrontation is of no consequence to his actions on the day in question. No prejudice could have resulted from the exclusion of her answer to the question of whether she was surprised to see him the day before. We will not reverse in the absence of prejudice. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992).

Another adversely-decided objection came when the prosecutor cross-examined appellant about prior criminal charges. His counsel objected, arguing that this evidence wasirrelevant to the charge being tried. The trial court overruled the objection, stating that a witness may be so questioned for the purposes of credibility. Appellant, however, did not answer the questions and instead, pleaded "the Fifth." This would not provide the basis for a meritorious appeal because (1) the trial court could have properly considered prior convictions for the purpose of judging credibility, Ark. R. Evid. 609(a), and (2) appellant never answered the question and was thus not prejudiced.

Subsequent to trial but prior to sentencing, the State offered into evidence appellant's "pen pack," documentation supporting his prior convictions and incarcerations. The trial court then requested evidence or argument from the defense regarding his status as a habitual offender. Thereupon, defense counsel and appellant began to offer the time spent in jail awaiting trial on the current conviction, presumably for jail-time credit. The trial court stopped them, advising that this was not to be discussed at this juncture but would be taken up at sentencing. When sentencing took place, appellant was given credit for 171 days against his six-year prison sentence. While not a truly adverse ruling, we address it and discern no harm or prejudice suffered by appellant in the trial court's action of halting discussion of jail-time credit until actual sentencing.

Also following trial but prior to sentencing, appellant filed several pro se motions directly with the trial court. In the order of filing, there was a motion for a mistrial, a motion for dismissal of charge, and objections to the pre-sentence report. The only filing that resulted in a ruling was his motion for mistrial filed on March 30, 2000, which was treated as a motion for new trial and which was denied. This was not erroneous because thejudgment had yet to be filed, such that the motion was premature and ineffective. See Brown v. State, 333 Ark. 698, 970 S.W.2d 287 (1998). The change in the Arkansas Rules of Criminal Procedure 33.3 giving effect to such motions filed prior to the entry of judgment, effective by per curiam on February 15, 2001, was not in existence when this motion was filed.

Also in this motion was a request by appellant that the trial court relieve trial counsel, which was, in effect, granted when the trial court appointed a public defender to represent appellant on appeal. To the extent that the motion could be considered as one requesting relief under Ark. R. Crim. P. 37, appellant was not yet sentenced and thus was not under the purview of that rule until sentenced. See Ark. R. Crim. P. 37.1.

The other pre-sentencing motions are not properly before us on appeal and could not be considered. This is so because appellant failed to obtain a ruling on them, precluding appellate review. Objections and questions left unresolved are waived and may not be relied upon on appeal. See Drone v. State, 303 Ark. 607, 798 S.W.2d 434 (1990); McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989).

Appellant was sentenced to six years at the conclusion of the sentencing hearing on July 19, 2000. The judgment of conviction was filed on August 22, 2000. On August 9 and 29, 2000, in a two-part motion, appellant filed a petition for relief under Rule 37 of our Rules of Criminal Procedure. A notice of appeal was filed on September 20, 2000. In an order filed on October 5, 2000, the trial court denied this petition finding that a defendant is not entitled to pursue a direct appeal and Rule 37 relief at the same time. The trial court wascorrect because once a notice of appeal is filed, the trial court loses jurisdiction to act on a Rule 37 petition. Tapp v. State, 324 Ark. 176, 920 S.W.2d 482 (1996). The petition must be filed after the appellate court mandate is issued because, when a case is directly appealed, the circuit court does not regain jurisdiction over the case until that event occurs. Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994); Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945).

Appellant also filed an application to proceed without prepayment of costs, evidencing an intent to proceed as a pauper. Because appellant has proceeded as such, he has been afforded all the relief he requested. He additionally sought a copy of his transcript pursuant to the Freedom of Information Act, which was denied. While this is technically an adverse ruling, he was not prejudiced in any way because the record was in fact prepared at State's cost, which was furnished to his appointed counsel for purposes of appeal. Appellant was not entitled to his own personal copy of the record at State expense. It should be noted that when an appeal has been lodged in the appellate court, the appeal transcript and other filed documents remain permanently on file with the clerk of the supreme court. Stone v. State, 298 Ark. 316, 767 S.W.2d 299 (1989). Counsel may check a transcript out through the Clerk's office for a period of time, and persons who are not attorneys may review a transcript in the Clerk's office and photocopy all or portions of it. Id. An incarcerated person desiring a photocopy of pages from a transcript or other documents on file with the clerk may write this court and request that the copy be mailed to the prison. Id. All persons, including prisoners, must bear the cost of photocopying. Id.

The remaining points in appellant's pro se points for reversal surround the correct dates and crimes that constituted the basis for his being found a habitual criminal and the failure of counsel to effectively assist appellant in his defense. The first argument was not argued to the trial court and was therefore waived. The second argument was marginally presented to the trial court, but appellant failed to obtain a ruling on it, thus failing to preserve the issue for review.

Based upon our review of the record and the brief presented to us, we conclude that there has been full compliance with Rule 4-3(j) and that the appeal is without merit. Counsel's motion to withdraw is granted, and the judgment of conviction is affirmed.

Griffen and Roaf, JJ., agree.

1 Appellant only moved for a directed verdict on the charge of terroristic threatening as to Ms. Richards, which was granted.