Christopher Burns v. State of Arkansas

Cite as 2022 Ark. App. 472
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-22-258

Opinion Delivered November 16, 2022

CHRISTOPHER BURNS APPEAL FROM THE HOT SPRING
APPELLANT COUNTY CIRCUIT COURT
[NO. 30CR-21-23]
V.
HONORABLE CHRIS E WILLIAMS,
JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED

KENNETH S. HIXSON, Judge

Appellant Christopher Burns appeals after he was convicted by a Hot Spring County

Circuit Court jury of aggravated assault on a family or household member, terroristic

threatening in the first degree, and domestic battering in the third degree. He was sentenced

to serve an aggregate of seventy-two months’ imprisonment. On appeal, appellant challenges

the sufficiency of the evidence supporting each of his convictions. However, because of

briefing deficiencies, we are unable to reach the merits of his arguments at this time and

must order rebriefing.

A notice of appeal in this case was first filed on November 16, 2021. The supreme

court made electronic filing of appeals mandatory for cases in which the notice of appeal was

filed on or after June 1, 2021. See In re Acceptance of Records on Appeal in Elec. Format, 2020
Ark. 421 (per curiam). As such, appellant’s counsel correctly filed an electronic brief on

behalf of appellant. However, it is clear to us that counsel has not fully familiarized himself

with the new rules as his brief is woefully deficient. For example, Rule 4-2(a)(6) of the

Arkansas Rules of the Supreme Court states the following:

The appellant’s brief shall contain a concise statement of the case and the facts
without argument. The statement shall identify and discuss all material factual and
procedural information contained in the record on appeal. Information in the
appellate record is material if the information is essential to understand the case and
to decide the issues on appeal. All material information must be supported by
citations to the pages of the appellate record where the information can be found.

(Emphasis added.)

Here, however, counsel failed to include any statement of the case, and even the

argument section does not recite the relevant testimony for this appeal. Instead, the

argument section consists of less than six pages that mostly repeat the same standard of

review for each of the three points on appeal with little explanation or substantive argument

about the points themselves. The requirement that a statement of the case be included is

not only for the benefit of this court to understand the case and facts, but the failure to

include necessary facts can also limit appellant’s requested review of any opinion offered by

this court. Rule 2-3(h) of the Arkansas Rules of the Supreme Court states, “In no case will

a rehearing petition be granted when it is based upon any fact thought to have been

overlooked by the Court, unless reference has been clearly made to it in the statement of the

case and the facts prescribed by Rule 4-2.”

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Therefore, because of the mandatory language used by the supreme court in Rule 4-

2, we cannot overlook counsel’s failure to even attempt to comply with the rule requiring a

statement of the case. The brief as presented by appellant’s counsel impedes this court’s

ability to undertake a meaningful review of the issues on appeal. Accordingly, we order

counsel to file a substituted brief on behalf of appellant curing any deficiencies within fifteen

days from the date of this order. The deficiencies we have noted are not to be taken as an

exhaustive list, and we encourage counsel for the appellant to carefully examine the record

and review our rules before resubmitting his brief. Upon the filing of a substituted brief, the

State will be afforded an opportunity to revise or supplement its brief in the time prescribed

by the clerk.

Rebriefing ordered.

VIRDEN and BARRETT, JJ., agree.

Gregory Crain, for appellant.

Leslie Rutledge, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.

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