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ARKANSAS COURT OF APPEALS DIVISION IV No. CR-15-484

Opinion Delivered November 4, 2015

APPEAL FROM THE POLK COUNTY ZACK RYAN CIRCUIT COURT APPELLANT [Nos. CR-10-196, CR-10-197, CR-10-199]

HONORABLE JERRY RYAN, V. JUDGE

REMANDED TO SETTLE AND STATE OF ARKANSAS SUPPLEMENT THE RECORD; APPELLEE REBRIEFING ORDERED

LARRY D. VAUGHT, Judge

Appellant Zack Ryan appeals the sentencing order entered by the Polk County

Circuit Court on February 9, 2015, revoking his probation and sentencing him to ten years’

imprisonment. On appeal he argues that (1) the trial court clearly erred in finding that the

State proved he had violated at least one condition of his probation, and (2) the trial court

violated his right to confrontation. We are unable to reach the merits of these arguments due

to record and briefing deficiencies; therefore, we remand to settle and supplement the record

and order rebriefing.

In 2011, Ryan pled guilty to committing five felonies in three separate cases. In case

number 2010-196, Ryan pled guilty to possession of a schedule VI controlled substance with

intent to deliver. In case number 2010-197, he pled guilty to delivery of a schedule III

controlled substance and use of a communication device. And in case number 2010-199, Cite as

Ryan pled guilty to delivery of a schedule IV controlled substance and use of a

communication device. Ryan received six years’ probation for each count, to run

concurrently. Ryan’s probation conditions were attached to an order of probation entered

May 9, 2011, and signed by the trial judge and Ryan.

On June 11, 2014, the State filed a petition to revoke Ryan’s probation in cases

numbered 2010-196, 2010-197, and 2010-199, alleging that he violated six conditions of

probation: failure to lead a law-abiding life, failure to report to the probation officer, failure

to be truthful, failure to undergo drug/alcohol treatment, failure to refrain from

use/possession of controlled substances, and failure to refrain from use/possession of

alcohol.

A revocation hearing was held in January 2015. The trial court entered a sentencing

order on February 9, 2015, revoking Ryan’s probation on six felony convictions.

We are unable to reach the merits of Ryan’s appeal due to record and briefing

deficiencies. The sentencing order from which Ryan appeals, dated February 9, 2015,

includes a conviction, in case number 2011-20, for possession of a schedule IV controlled

substance. However, there is no order in the record sentencing Ryan to probation for this

crime.

Second, there are deficiencies in Ryan’s abstract. The abstract of the revocation

hearing includes only the testimony of Vici Fenwick, Ryan’s probation officer. The abstract

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does not include the trial court’s revocation findings, Ryan’s presentencing statement to the

court, or the court’s response to same. 1

Third, the addendum is also deficient. The judgment and disposition order, entered

May 12, 2011, detailing Ryan’s guilty pleas in connection with five felony convictions in

cases numbered 2010-196, 2010-197, and 2010-199, is not included in the addendum. As set

forth above, the sentencing order from which Ryan appeals, dated February 9, 2015, includes

a sixth conviction, in case number 2011-20, for possession of a schedule IV controlled

substance; however, Ryan has failed to include in his addendum an order sentencing him to

probation for this crime. Also missing from the addendum are multiple documents attached

to the petition to revoke. These documents were specifically referenced by the trial court

during Fenwick’s testimony and are relied on by the State in its sufficiency-of-the-evidence

argument on appeal.

Rule 4-2(a)(5) of the Rules of the Arkansas Supreme Court and Court of Appeals

requires that an appellant abstract the material parts of all of the transcripts in the record.

Information in a transcript is material if the information is essential for the appellate court to

confirm its jurisdiction, to understand the case, and to decide the issues on appeal.

Here, the abstract fails to include the trial court’s revocation findings, statements

made by Ryan prior to being sentenced, and the trial court’s response, which included

further relevant findings. This information is essential for our court to understand the case

and to decide the issues on appeal.

1The State included a supplemental abstract in its brief, but it did not include the trial court’s revocation findings. The supplemental abstract included only one sentence from Ryan’s presentence statement and the trial court’s response.

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Arkansas Supreme Court Rule 4-2(a)(8) provides that the addendum must contain

copies of the nontranscript documents in the record on appeal that are essential for the

appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on

appeal. Because Ryan has failed to include the May 12, 2011 judgment and disposition order,

the attachments to the petition to revoke probation, and evidence of a conviction in case

number 2011-20, his addendum is deficient.

Based on these deficiencies, we remand this case to settle and supplement the record

in accordance with Arkansas Rule of Appellate Procedure–Civil 6(e) (2015) and Arkansas

Rule of Appellate Procedure–Criminal 4(a) (2015). Ryan must file a certified, supplemental

record containing an order sentencing him to probation in case number 2011-20 within

thirty days of this opinion’s date. We also order rebriefing to correct the abstract and

addendum deficiencies. The supplemental abstract, addendum, and brief shall be due fifteen

days after Ryan files the supplemental record with this court’s clerk. Ark. Sup. Ct. R. 4-

2(b)(3) (2015). After service of the substituted brief, abstract, and addendum, the State shall

have fifteen days to revise or supplement its brief or it may choose to rely on the brief

previously filed in this appeal.

While we have noted the above-mentioned deficiencies, we encourage Ryan’s counsel

to review Rule 4-2 in its entirety as it relates to the abstract and addendum, as well as the

entire record, to ensure that no additional deficiencies are present.

Remanded to settle and supplement the record; rebriefing ordered.

ABRAMSON and HIXSON, JJ., agree.

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Randy Rainwater, for appellant.

Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., and Courtnie Holt, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att’y Gen., for appellee.

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