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                 ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                        No. CR-14-41


                                                   Opinion Delivered   JANUARY 14, 2015


LARRY LEE COOPER                                   APPEAL FROM THE FAULKNER
                                APPELLANT          COUNTY CIRCUIT COURT
                                                   [NO. 23CR-11-331]
V.
                                                   HONORABLE CHARLES E.
                                                   CLAWSON, JR., JUDGE
STATE OF ARKANSAS
                                  APPELLEE         MOTION TO WITHDRAW DENIED;
                                                   REBRIEFING ORDERED; AND
                                                   CLERK DIRECTED TO SERVE A
                                                   COPY OF LARRY COOPER’S PRO
                                                   SE POINTS ON THE ATTORNEY
                                                   GENERAL’S OFFICE PURSUANT TO
                                                   RULE 4-3(K)(3)


                               DAVID M. GLOVER, Judge


       On December 9, 2011, Larry Lee Cooper entered negotiated guilty pleas to the

underlying offenses of attempted possession/intent to deliver a controlled substance, possession

of drug paraphernalia, and driving with a suspended license. He was placed on probation.

The State subsequently filed a petition to revoke, alleging that Cooper violated the terms and

conditions of his probation by failing to report, failing to abstain from illegal substances, and

failing to pay fines, fees, and court costs. Following the revocation hearing on October 3,

2013, the trial court revoked Cooper’s probation and sentenced him to eighteen months in

a regional correction facility, with an additional twenty-four months’ suspended imposition
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of sentence. On October 16, 2013, Cooper filed a pro se “petition for appeal,” even though

he was still represented by his trial counsel.1 A joint motion for substitution of counsel was

subsequently filed and granted by our court. Substituted counsel has filed a motion to

withdraw, accompanied by an abstract, brief, and addendum, asserting that an appeal in this

matter would be wholly without merit. We deny the motion to withdraw and order

rebriefing by Cooper’s counsel. In addition, we direct our court clerk to serve a copy of

Cooper’s “points,” and this opinion, on the Attorney General’s Office pursuant to Rule 4-

3(k)(3) for preparation and submission of a responsive brief.

       The foundational authorities for seeking to withdraw from representation on the

ground that an appeal is wholly without merit lie in Anders v. California, 386 U.S. 738 (1967),

and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals. Because

our court is receiving more and more Anders briefs that do not fully embrace the underlying

rationale for allowing “no-merit” briefs and presenting them to this court, we take this

opportunity to review the foundations.

       In Anders, the United States Supreme Court was “concerned with the extent of the

duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal

conviction, after that attorney has conscientiously determined that there is no merit to the

indigent’s appeal.” 386 U.S. at 739.        The Court explained that the “constitutional


       1
        We note that Cooper raised two appellate arguments in his pro se “petition for
appeal.” A notice of appeal is clearly not the appropriate vehicle for raising appellate
arguments. It is not necessary for us to discuss the status of those points because his
arguments were also raised in his separately submitted points, which are being forwarded to
the Attorney General’s Office for response pursuant to Ark. Sup. Ct. R. 4-3(k)(3).

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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,”

and that the “no-merit letter2 and the procedure it triggers do not reach that dignity.” Id. at

744. The Court made clear, however, that “if counsel finds his case to be wholly frivolous,

after a conscientious examination of it, he should so advise the court and request permission

to withdraw. That request must, however, be accompanied by a brief referring to anything

in the record that might arguably support the appeal.” Id. at 744. The Court further

explained:

       A copy of counsel’s brief should be furnished the indigent and time allowed him to
       raise any points that he chooses; the court—not counsel—then proceeds, after a full
       examination of all the proceedings, to decide whether the case is wholly frivolous. If
       it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as
       federal requirements are concerned, or proceed to a decision on the merits, if state law
       so requires. On the other hand, if it finds any of the legal points arguable on their
       merits (and therefore not frivolous) it must, prior to decision, afford the indigent the
       assistance of counsel to argue the appeal.

Id.

       Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals

incorporates the Anders concerns and provides in pertinent part:

              (1) Any motion by counsel for a defendant in a criminal or a juvenile
       delinquency case for permission to withdraw made after notice of appeal has been
       given shall be addressed to the Court, shall contain a statement of the reason for the
       request and shall be served upon the defendant personally by first-class mail. A request
       to withdraw on the ground that the appeal is wholly without merit shall be


       2
         Counsel’s letter in the Anders case provided: ‘“I will not file a brief on appeal as I am
of the opinion that there is no merit to the appeal. I have visited and communicated with
Mr. Anders and have explained my views and opinions to him . . . . (H)e wishes to file a
brief in this matter on his own behalf.”’ 386 U.S. at 742.

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       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. The abstract and Addendum of the
       brief shall contain, in addition to the other material parts of the record, all rulings adverse to the
       defendant made by the circuit court.

(Emphasis added.)

       Here, counsel made no reference to either the Anders case or Rule 4-3(k). We do not

deny the motion to withdraw because of those omissions, but we take this opportunity to

note that, in filing motions to withdraw and accompanying “no-merit” briefs with our court,

it is the better practice, even though not a fatal omission, to explain that the motion and brief

are being filed pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-

3(k). Doing so assures our court that counsel understands the applicable framework and rules.

       The basis upon which we deny the motion lies in the emphasized portion of Rule 4-

3(k)(1) above. The brief discusses one adverse ruling, the revocation itself, but at no point

in the brief does counsel state clearly that the revocation is the only adverse ruling in the

record. In general, records include not only hearing transcripts, but also motions and other

requests decided adversely to the defendant. Our review of the record seems to confirm that

the revocation itself is the only adverse ruling, but we must be confident that counsel has

undertaken that task. Particularly pertinent to our decision in this regard, denying counsel’s

motion to withdraw in the instant case, is the following passage from Anders:

               This requirement would not force appointed counsel to brief his case against
       his client but would merely afford the latter that advocacy which a nonindigent
       defendant is able to obtain. 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. The no-merit letter, on the other hand, affords

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       neither the client nor the court any aid. The former must shift entirely for himself
       while the court has only the cold record which it must review without the help of an
       advocate. Moreover, such handling would tend to protect counsel from the constantly
       increasing charge that he was ineffective and had not handled the case with that
       diligence to which an indigent defendant is entitled. 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.

Id. at 745 (emphasis added).

       Finally, the clerk of our court sent, by certified mail, a copy of counsel’s motion to

withdraw and accompanying brief to Cooper’s last-known address. Cooper did not submit

points in response; however, in searching Cooper’s court correspondence file, the clerk of our

court discovered that he did submit pro se “points” during the time frame in which he was

still represented by his trial counsel and before substitution of counsel was granted and the

motion to withdraw was filed. Because Cooper prematurely submitted his pro se “points,”

while still represented by trial counsel and before the motion to withdraw was filed, the

Attorney General’s Office was not notified pursuant to Rule 4-3(k)(3). We direct our court

clerk to serve a copy of Cooper’s “points,” and this opinion, on the Attorney General’s Office

pursuant to Rule 4-3(k)(3) for preparation and submission of a responsive brief.

       Motion to withdraw denied; rebriefing ordered; and clerk directed to serve a copy of

Larry Cooper’s pro se points on the Attorney General’s Office pursuant to Rule 4-3(k)(3).

       GLADWIN, C.J., and GRUBER, J., agree.

       Lucas Law, PLLC, by: Molly Lucas, for appellant.

       No response.



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