Full Opinion

Cite as 2026 Ark. App. 400 ARKANSAS COURT OF APPEALS DIVISIONS I & IV No. CR-25-801 Opinion Delivered September 16, 2026 JASON HERNANDEZ APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NOS. 04CR-18-1507; 04CR-18-1837; V. 04CR-19-946; 04CR-19-2068; 04CR- 19-2069] STATE OF ARKANSAS HONORABLE BRAD KARREN, APPELLEE JUDGE REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED N. MARK KLAPPENBACH, Chief Judge Jason Hernandez appeals from the order of the Benton County Circuit Court revoking his probation in five cases. On appeal, Hernandez’s counsel has filed a no-merit brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(b), asserting that there is no issue of arguable merit to raise on appeal. Hernandez was notified of his right to file pro se points in response to counsel’s brief, but he has not done so. Due to deficiencies in counsel’s brief, we deny counsel’s motion and order rebriefing. In June 2019, Hernandez entered a negotiated guilty plea to four Class D felonies in exchange for being placed on six years’ probation. The offenses were theft of property, breaking or entering, possession of a controlled substance, and possession of drug paraphernalia.1 In 2020, Hernandez pleaded guilty to three more Class D felonies—two counts of breaking or entering and one count of theft of property—in exchange for being placed on five years’ probation.2 The State subsequently moved to revoke Hernandez’s probation in all five cases. In May 2024, Hernandez pleaded true to violating his probation and was placed on four years’ probation for each of the seven offenses. In August 2024, the State again moved to revoke Hernandez’s probation. A revocation hearing was held in August 2025, at which the State presented the testimony of Hernandez’s probation officer, two law enforcement officers, and a forensic chemist. At the conclusion of the hearing, the circuit court found that the State had met its burden of proving by a preponderance of the evidence that Hernandez had inexcusably violated the terms and conditions of his probation. The court sentenced Hernandez to six years’ imprisonment on each offense, to run concurrently. A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief. Ark. Sup. Ct. R. 4-3(b). 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. Id. The requirement for briefing every adverse ruling ensures that the due-process concerns in Anders are met and prevents the unnecessary risk of a deficient Anders brief resulting in an incorrect decision on 1 The charges were brought under three case numbers: CR-18-1507, CR-18-1837, and CR-19-946. 2 These offenses were charged under two case numbers: CR-19-2068 and CR-19- 2069. 2 counsel’s motion to withdraw. Jeffries v. State, 2022 Ark. App. 274. Pursuant to Anders, we are required to determine whether the case is wholly frivolous after a full examination of all the proceedings. Id. A no-merit brief in a criminal case that fails to address an adverse ruling does not satisfy the requirements of Rule 4-3(b), and rebriefing will be required. Id. Here, counsel states that the sole adverse ruling “can be argued to be” the revocation. She then states, “However, the decision to revoke one’s probation is not a meritorious ground for reversal.” Counsel’s brief concludes by noting that appellant made no objections or motions below, and “[a]s such, there is nothing to brief . . . .” This brief fails to comply with Rule 4-3(b). The revocation decision is an adverse ruling, and the Rule requires counsel to provide “an explanation as to why each adverse ruling is not a meritorious ground for reversal.” Counsel’s argument section includes no reference to the evidence, the circuit court’s findings, or our standard of review, and there is no explanation as to why an appeal of the revocation decision would be wholly without merit. 3 Accordingly, we order rebriefing. See Hill v. State, 2024 Ark. App. 385 (holding that a brief that provides scant substantive reasoning and does little to explain how the facts apply to the law is deficient); 3 The dissenting judge’s citation to counsel’s one-sentence, wholly conclusory “point heading” as proof of a compliant brief is unpersuasive; our courts have long held that argument headings are meaningless when there is no developed argument. See Camp v. State, 66 Ark. App. 134, 136 n.1, 991 S.W.2d 611, 614 n.1 (1999). The dissenting judge’s focus on “the first ten pages of the brief” (i.e., the table of contents, jurisdictional statement, and statement of the case and facts) does not render the argument section unnecessary. We have not faulted counsel for her two-and-a-half-page statement of the case and facts; rather, her one-page argument section is noncompliant. 3 Jefferson v. State, 2013 Ark. App. 325 (ordering rebriefing due to counsel’s failure to explain why the revocation decision is not a meritorious ground for reversal).4 Hernandez’s counsel has fifteen days from the date of this opinion to file a substituted brief that complies with the rules. Counsel is encouraged to review the record for any additional deficiencies. Rebriefing ordered; motion to withdraw denied. ABRAMSON, HIXSON, and MURPHY, JJ., agree. THYER, J., concurs. HARRISON, J., dissents. CINDY GRACE THYER, Judge, concurring. In Anders v. California, the Supreme Court considered “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. 738, 739 (1967). The Court held that even in the context of a no-merit appeal, counsel must “act[] in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae[,]” and in that role, counsel must “support his client’s appeal to the best of his ability.” Id. at 744. To that end, 4 The dissenting judge discusses in detail his review of the underlying facts of the case. However, the governing law on the subject is clear: the attorney’s brief must include “an explanation as to why each adverse ruling is not a meritorious ground for reversal”; counsel’s mere “rehash[ing] the facts from the trial” is insufficient in this context; and “an appellate court’s independent review” is not a “substitute for defense counsel’s responsibility” and cannot alone satisfy the requirements of Anders and Rule 4-3. Kou Her v. State, 2015 Ark. 91, at 8, 457 S.W.3d 659, 664; see also Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877; Ark. Sup. Ct. R. 4-3(b). 4 the Court established the framework that has guided no-merit appeals for over half a century: [I]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. 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. Id. The purpose of the Anders brief is both “to provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeal to the best of their ability” and to aid the court in its “critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 439 (1988) (emphasis added). Our court has enshrined this concept and this procedure in Arkansas Supreme Court Rule 4-3(b)(1), which provides in pertinent part as follows: A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief. 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 brief’s statement of the case and the facts shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the circuit court and the page number where each adverse ruling is located in the appellate record. (Emphasis added.) In Kou Her v. State, 2015 Ark. 91, 457 S.W.3d 659, and Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877, our supreme court stressed that it is counsel’s responsibility, not this court’s, to adequately address each adverse ruling in a no-merit appeal. Kou Her noted that 5 “the role of the appellate court is to perform its own review, not act as an advocate for the defendant.” 2015 Ark. 91, at 5, 457 S.W.3d at 662. Sartin held that “[w]e cannot affirm an appellant’s conviction and allow an attorney to withdraw without adequate discussion as to why a particular ruling by the [circuit] court should not be a meritorious ground for reversal.” 2010 Ark. 16, at 4, 362 S.W.3d at 880. This court has consistently held that it is imperative that counsel follow the appropriate procedure when filing a motion to withdraw as counsel. See Walton v. State, 94 Ark. App. 229, 231, 228 S.W.3d 524, 525–26 (2006); Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004). This framework is a “method of ensuring that indigents are afforded their Constitutional rights.” Campbell v. State, 74 Ark. App. 277, 279, 47 S.W.3d 915, 917 (2001). Moreover, while it is this court’s duty to fully examine the record to determine if an appeal would be wholly without merit, it is not our duty to do so with the purpose of instructing counsel what to include in a no-merit brief. Rodriguez v. State, 2026 Ark. App. 8, at 2. This court has likewise consistently ordered rebriefing when counsel has provided only a conclusory statement that there are no adverse rulings that would present a ground for a meritorious appeal. See Hill v. State, 2024 Ark. App. 385, at 2 (ordering rebriefing when counsel “simply identifie[d] the adverse ruling; cite[d] the applicable rule, case law, or standard of review; and provide[d] a conclusory sentence that the ruling was not in error”); Kelley v. State, 2018 Ark. App. 448, at 2 (ordering rebriefing when counsel “simply describe[d] the circuit court’s ruling and provide[d] a conclusory statement, such as ‘[t]he Court was correct in its actions’”); Rainey v. State, 2014 Ark. App. 383, at 3–4, 439 S.W.3d 67, 69 (ordering rebriefing when counsel did not explain why an adverse ruling was not a 6 meritorious ground for reversal, did not mention the standard of review, and made only conclusory statements regarding the rectitude of the circuit court’s ruling). The instant case does not present a departure from these and many other similar opinions. The argument portion of the brief here states only that [t]he sole adverse ruling in this record can be argued to be that of the by [sic] the trial court, i.e. the revocation itself. However the decision to revoke one’s probation is not a meritorious ground for reversal. Probation may be revoked upon a finding by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of the probation. This sort of conclusory statement has repeatedly been found to necessitate rebriefing because it does not comply with Rule 4-3(b)(1)’s requirement to provide “an explanation as to why each adverse ruling is not a meritorious ground for reversal.” (Emphasis added.) Accordingly, today’s majority opinion does precisely what it should––nothing more, nothing less. BRANDON J. HARRISON, Judge, dissenting. Because the majority views appointed counsel’s brief in too uncharitable a light, I dissent. There is no merit to an appeal of the circuit court’s revocation, and no change in the briefing will alter that fact. The majority, if it does anything, only “teaches” counsel a briefing lesson. But that lesson is misplaced if not tethered to an affirmance. We waste counsel’s time by ordering another brief. We also delay entry of the mandate unnecessarily. Finally, the decision charges a time debt to the next panel that must touch this wholly frivolous appeal. * * * The record, as reported to us in counsel’s brief, establishes with the certainty of 1 + 1 = 2 that the mandate should issue and counsel be relieved. Hernandez, an adjudicated 7 multiple-count felon for conduct ranging many years, was placed on probation for years. Basically, from 2018 through 2024, he was stumbling left and right, even landing himself in the Oklahoma Department of Corrections. This appeal relates to a petition to revoke the State of Arkansas filed in mid-2024 on five underlying cases, while Hernandez was already on probation. He pled “true” to the petition on eight counts (theft, drug crimes, breaking or entering) and received four years’ probation. In August 2024, the State filed another petition to revoke, alleging multiple violations that had occurred in July 2024 (three drug- related felonies, felony tampering with physical evidence, and misdemeanor refusing to submit to an arrest). After some delay due to rescheduling, a hearing was set on 28 August 2025, by which time the State had twice amended its petition to revoke. 1 After the hearing in which Hernandez was represented by counsel, the Benton County Circuit Court found four of the second amended petition’s allegations “true” and one “not true.” The court revoked Hernandez’s probation and sentenced him to serve six years in the Arkansas Division of Corrections. Of course, there was an appeal. Why are six judges on this case today when three usually suffice? Because we have, as mentioned, taken too stringent a view on what the briefing responsibility is for appointed appellate counsel in this case. Her brief tells us Hernandez was detained during a traffic stop (more detail is interesting but legally irrelevant) and “a baggy fell out of [his] pants after he 1 Hernandez had apparently been in custody in Washington County and was ordered to appear in person in the Benton County Circuit Court at some point. In any event, he appeared by video at the revocation hearing (possibly even from an Oklahoma correctional facility). 8 was placed in handcuffs and stood up.” In front of the police. 2 The baggy’s content was tested at the crime lab. Result: 13.9877 grams of methamphetamine. Counsel’s brief also informs us that “[p]ost Miranda, [Hernandez] stated he had just purchased the methamphetamine from someone else at the hotel where [law enforcement] surveillance began. Hernandez was on probation with a valid warrantless search waiver on file.” So we learn from the brief (and the hyperlinked record) that Hernandez had methamphetamine on his person (or right near him). And he admitted that he had just bought the drug at the police-surveilled hotel. He also had a meth pipe when arrested, see footnote 2. If we need to know more than this then counsel provides it—albeit uber succinctly and sans artistry. * * * A man on probation after originally pleading guilty to felonies is arrested—during an unchallenged traffic stop—for possessing bona fide methamphetamine and possessing and then smashing a meth pipe. That man, Hernandez, also admitted during police questioning that he had just bought the drug from a surveilled location. No chance that an appellate court would ever reverse the probation revocation given these facts, all of which were adduced at the August 2025 hearing and hyperlinked to, or summarized in, counsel’s brief. Counsel also informs us that “[hearing] counsel did not lodge a single objection or make any motion on behalf of Hernandez during trial. He did not move for a directed verdict. 2 Detective John Mackey testified, “[Hernandez] had a meth pipe in his possession that he apparently tried to destroy, and then a baggy containing what was later determined to be methamphetamine was located where he was standing.” Corporal Morgan Abernathy said that Hernandez “grabbed a pipe out of his pocket and it smashed on the top of the bed of the truck.” Counsel’s brief states the main points to know. 9 He had no questions for any of the State’s witnesses. No witnesses were presented by [Hernandez].” Hearing counsel said after the State rested, “Yes, I don’t have any witnesses or evidence for the true not true, Your Honor.” I pulled that quotation from the transcript in seconds using the helpful hyperlinks in appellate counsel’s brief, of which there are dozens. Finally, Hernandez “chose not to testify.” Staying on hyperlinks, our coveted friends in the electronic-record era, there’s one worth “clicking” on page 9 of counsel’s brief. It jumps to page 52 of the hearing transcript. There we can all read these words from the circuit court, in seconds, “I’m not gonna order him to pay anything. He’s good about paying. He’s not good about reporting. He’s not good about not committing new felonies while he’s out on probation.” (Emphasis added.) On page 10 of counsel’s brief appears the bottom line, again: “[Hernanadez] was found to have inexcusabl[y] violated the terms of his probation, his probation on all five cases was revoked and he was sentenced to a period of six years on all felony matters.” If you still need more, let’s go. The argument section of the brief opens with this point heading: “A. The Circuit Court’s Findings, That the Petitions to Revoke [Hernandez’s] Probation Should Be Granted, Are Not a Meritorious Ground for Reversal.” More legally correct words have scarcely been written. As this section quickly unfolds it communicates counsel’s understanding of the stakes while reminding each judge again that there were no objections to anything—not to any witness testimony, prehearing process, intra-hearing process, or exhibit. All of this means ipso facto that there’s nothing to say but the obvious: Hernandez’s probation was revoked and there is no meritorious argument to the contrary. 1 + 1 = 2. 10 The majority says, “The revocation decision is an adverse ruling, and the Rule requires counsel to provide ‘an explanation as to why each adverse ruling is not a meritorious ground for reversal.’” If pages 1-10 of counsel’s brief did not communicate this appeal’s fait accompli, did the point heading of the argument section (page 11) not do it? A probationer cannot possess methamphetamine (or a meth pipe). I don’t know what more can be said. Counsel’s brief cites Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(b)(1). It provides dozens of hyperlinks to the record, whose efficiency and usefulness I have illuminated. The brief reports a complete procedural and factual history of the case and therefore shows an understanding of counsel’s role and the stakes, as I have also shown. Simply put, counsel included all that is minimally required in this case. The majority says, “Counsel’s argument section includes no reference to the evidence, the circuit court’s findings, or our standard of review, and there is no explanation as to why an appeal of the revocation decision would be wholly without merit.” But the first ten pages of the brief and its embedded hyperlinks report the evidence reliably. The point heading to the Argument section highlights what happened and why, again, on page 11. Could counsel’s brief be more polished? Sure. A few more words here and there could have been injected as filler. But drafting a compelling read here is not required. To the majority’s complaint that counsel left out the “standard of review,” it is only partially correct. The phrase “preponderance of the evidence” is used in the brief, which is getting close, though counsel admittedly did not reach four decimal points of precision the lab-tested meth sample achieved. Had she only added “Is the revocation clearly against the 11 . . . ?”. But it cannot matter here how one phrases any standard of appellate review. Not in a case where a felon probationer smashed a meth pipe in front of the police and possessed 13.9877 grams of methamphetamine, in public, on or right near his person—all beyond any physical-and-ontological doubt—and without any objection being made below. Under any standard of review, no matter how phrased, the circuit court’s robust record chins the bar faster than a professional Cross Fitter on caffeine (one is tempted to say methamphetamine). * * * Hernandez’s counsel had no objections below; there were apparently none to make. The majority spots none, or it would have said so, as we have done scores of times. When appellate judging separates from the pier of practicality, especially when the record and case history is overwhelmingly against the appellant in a criminal no-merit context, we should pause and think hard on what comes next. Because I side with appointed counsel’s justified assumptions that an experienced appellate court would know this is a wholly frivolous appeal given what she provided in her brief, I would hold that she satisfied Rule 4-3(b)(1), affirm the revocation, and grant the motion to withdraw. Ordering more to be done turns judicial economy’s pockets inside out. In Whitt v. State, 2025 Ark. App. 588, I concurred with a decision on a motion for rule on clerk, writing separately to grumble about the steady proliferation of such motions given lawyers’ oversights on jurisdictional matters involving notices of appeal and records. I began this way, “Dear Criminal Defense Lawyers: Please Do Better. The lack of care shown to jurisdictional details, like the rather mundane but critical task of filing a record on appeal on time, is ballooning to the point of bursting.” Today, I write separately to say this 12 court should have done better for court-appointed counsel who provided an important public service. I trust the misstep today will not balloon to the point of bursting. I respectfully dissent. Sharon Kiel, for appellant. One brief only. 13