ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

BARNEY ALLEN BARNETT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1340

January 14, 2004

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT

[NO. CR-2002-1-5]

HON. JERRY MAZZANTI,

CIRCUIT JUDGE

REBRIEFING ORDERED

Josephine Linker Hart, Judge

Appellant Barney Barnett was convicted of three counts of raping the eleven-year-old daughter of his live-in girlfriend. Appellant was sentenced to three consecutive fifteen-year terms of imprisonment in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. R. Sup. Ct. 4-3(j)(1), appellant's counsel filed a motion to withdraw as appellant's attorney, alleging that this appeal is without merit. Also, counsel presented a brief stating that there were no reversible errors committed in the proceedings. Commensurate with the instructions given by the clerk of this court, appellant filed a pro se statement of points for reversal.1

An attorney's request to withdraw as counsel on the grounds that the appeal is completely without merit must be accompanied by an abstract and a brief. Ark. Sup. Ct. R. 4-3(j)(1) (2002); Adaway v. State, 62 Ark. App. 272, 972 S.W.2d 257 (1998). Counsel for appellant must abstract each adversary ruling and counsel's brief must contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(j)(1); Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001).

In Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994), this court stated:

The procedure for the filing of a no-merit brief is governed by Anders v. California, 386 U.S. 738 (1967) and Rule 11(h) [now Rule 4-3(j)] of the Rules of the Supreme Court. The test is not whether counsel thinks the trial court committed reversible error, but rather whether the points to be raised on appeal would be "wholly frivolous." Anders, 386 U.S. at 744. Under Anders, the appellate court is also required to make a determination "after a full examination of all the proceedings," whether the case is wholly frivolous. Similarly, Rule 11(h) permits the filing of a no-merit brief only when "the appeal is wholly without merit."

47 Ark. App. at 97, 885 S.W.2d at 905 (quoting Ofochebe v. State, 40 Ark. App. 92, 844 S.W.2d 373(1992)).

After examining the record, we are not convinced that the appeal is wholly without merit or "so frivolous that it may be decided without any adversary presentation." Several adverse rulings were abstracted and discussed. We cannot say that counsel's discussion of the following four rulings, at a minimum, establishes that they are wholly frivolous: 1) the trial court's overruling a relevancy objection to a question concerning what happened to the victim's mother that required her to wear a knee brace depicted in a picture introduced by appellant and to the introduction of a patient medical information sheet; 2) the trial court's denial of appellant's motion for a mistrial after he objected to the question directed to a witness, asking "[w]hen you talked to him [appellant], did he ever deny having sexual --" on the grounds that it was a comment on his right to remain silent; 3) the introduction of evidence under Rule 404(b) concerning an attempt by appellant to kiss two other teenagers; 4) the trial court's refusal to admit the testimony of the victim's mother with regard to whether the victim was telling the truth. On rebriefing, counsel should reconsider his decision to file a no-merit brief, and after further research, prepare a brief presenting any issues he considers meritorious.

Pursuant to Anders v. California, and the reasons stated, counsel's motion to withdraw is denied, and the case is remanded for rebriefing in adversary form.

Rebriefing ordered.

Neal and Baker, JJ., agree.

1 For his pro se points on appeal, appellant argues four points: 1) that there was a conflict of interest between his first attorney and the judge who heard the case; 2) that his counsel was ineffective; 3) that a bailiff had tampered with his jury; 4) that the victim's grandmother caused her to fabricate the charges against him.