ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION II

RANDY PHILLIPS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-1240

JUNE 25, 2003

APPEAL FROM GARLAND COUNTY CIRCUIT COURT

[NO. CR01-538-I]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

REBRIEFING ORDERED

Appellant Randy Phillips pled guilty to aggravated robbery and commercial burglary, for which he was sentenced by the trial court to respective terms of imprisonment of fifteen years and ten years. The trial court ordered that the sentences be served consecutively to each other and to a sentence previously imposed for revocation of his probation. This case only involves Phillips's appeal from his conviction and sentencing for aggravated robbery, but his appeal from the commercial burglary conviction is also before this court, in CACR02-1238. The abstract and the record in both cases are identical. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Phillips's counsel has filed a motion to be relieved as his attorney, alleging that the appeal is without merit. Counsel has also filed a brief in which he asserts that all adverse rulings are abstracted and discussed. The clerk of this court furnished Phillips with a copy of counsel's brief and notified him of his right to file pro se points for reversal within thirty days; he did not, however, exercise that right. Because counsel failed to abstract and discuss all rulings adverse to Phillips, we deny counsel's motion to withdraw and order rebriefing in this case, which is consistent with our decision in CACR02-1238.

The facts relevant to Phillips's conviction for aggravated robbery are as follows. On August 10, 2001, Phillips entered the Clarion Resort on Highway 7 South in Hot Springs, looked around, and quickly left. Approximately ninety seconds later, he reentered the Clarion armed with a rifle and jumped over the counter, demanding that the employee open the cash drawer and give him all of the cash. After the employee gave Phillips the money, he jumped back over the counter and exited the Clarion. The video surveillance camera from the Clarion captured the entire incident. The portion of the tape where Phillips initially entered the Clarion, looked around, and left was inadvertently erased; however, the portion where he entered with the rifle and demanded money remained on the tape.

Phillips filed a motion to suppress three statements he made to police, in which he confessed to committing the offenses of aggravated robbery and commercial burglary. At the hearing on the motion to suppress, the trial court took the motion under advisement. However, the trial court never ruled on the motion because Phillips decided to plead guilty to both charges prior to trial. Phillips, with the consent of the prosecutor, elected to have the trial court sentence him. The court sentenced him to ten years for the commercial burglary conviction and fifteen years for the aggravated robbery conviction. The court ordered that the sentences be served consecutively, over the objection of Phillips's counsel.

Phillips's counsel's abstract and brief appropriately discusses only two of the instances where the trial court ruled adversely to Phillips: (1) the denial of his motion to suppress; and (2) the trial court's decision to run the sentences consecutively. However, our review of the record reveals that there were at least four other adverse rulings that occurred during the sentencing hearing and are not abstracted or discussed by Phillips's counsel. For example, during Phillips's testimony, the trial court sustained the State's objection that certain testimony was not relevant. Also duringPhillips's testimony, the State's objection to hearsay was sustained. In addition, during the cross-examination of Phillips, two objections by defense counsel were overruled.

According to Ark. Sup. Ct. R. 4-3(j), a request to withdraw on the ground that an appeal is without merit shall be accompanied by a brief and an abstract containing all rulings adverse to the defendant and an explanation as to why each adverse ruling is not a meritorious ground for reversal. Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). Because Phillips's counsel has failed to comply with the requirements of Anders, supra, and Ark. Sup. Ct. R. 4-3(j), we find the no-merit brief to be deficient and deny counsel's motion to withdraw without prejudice. Phillips's counsel is instructed to rebrief this case, along with CACR02-1238, within thirty days in accordance with Rule 4-3(j). Both Phillips and the State will be allowed thirty-day periods in which to file responsive briefs.

Rebriefing ordered.

Vaught and Baker, JJ., agree.