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ARKANSAS COURT OF APPEALS DIVISION I No. CR-14-866

Opinion Delivered October 21, 2015

GERALD JERMAINE ALLEN APPEAL FROM THE CRITTENDEN APPELLANT COUNTY CIRCUIT COURT [NO. CR-13-467] V. HONORABLE RALPH WILSON, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED WITH INSTRUCTIONS TO CORRECT SENTENCING ORDER

WAYMOND M. BROWN, Judge

A Crittenden County jury found appellant Gerald Allen guilty of aggravated assault,

and he was sentenced as a habitual offender to nine years’ imprisonment.1 Appellant’s counsel

has filed a motion to withdraw and a no-merit brief pursuant to Anders v. California2 and Rule

4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals. The clerk of this

court provided appellant with a copy of counsel’s brief and motion, and notified appellant of

1 Appellant was also charged with arson, but that charge resulted in a mistrial due to a hung jury. 2

(1967). Cite as

his right to file pro se points for reversal. Appellant has not submitted any points for reversal.3

A request to be relieved as counsel on the ground that the appeal is wholly without

merit shall be accompanied by a brief including an abstract and addendum.4 The brief shall

contain an argument section that consists of a list of all rulings adverse to the defendant made

by the trial court with an explanation as to why each adverse ruling is not a meritorious

ground for reversal.5 It is imperative that counsel follow the appropriate procedure when

filing a motion to withdraw as counsel.6 In furtherance of the goal of protecting

constitutional rights, it is both the duty of counsel and of this court to perform a full

examination of the proceedings as a whole to decide if an appeal would be wholly frivolous.7

From our review of the record and the brief presented to us, we hold that counsel has

complied with Rule 4-3(k)(1) and agree that there is no merit to an appeal. Therefore, we

affirm appellant’s conviction and grant counsel’s motion to withdraw. However, we note

that, in the sentencing order, the trial court indicated that appellant was found guilty by the

court and sentenced by the court. This was a jury trial, and the court accepted the jury’s

3 This is the second time this case has been before us. We initially denied counsel’s motion to withdraw and ordered rebriefing due to deficiencies. Allen v. State,

. 4 Ark. Sup. Ct. R. 4-3(k)(1). 5

6 Brown v. State,

,

(2004). 7 Campbell v. State,

,

(2001).

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sentence recommendation. Therefore, we remand to the trial court with instructions to

correct the sentencing order.

Affirmed; motion to withdraw granted; remanded with instructions to correct sentencing order.

ABRAMSON and HARRISON, JJ., agree.

S. Butler Bernard, Jr., for appellant.

No response.

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