Opinion
CA CR 10-825
Opinion Delivered June 29, 2011
Appeal from the Johnson County Circuit Court, [CR-2009-121], Honorable Bill Pearson, Judge, Remanded to Settle and Supplement the Record.
Appellant Terry Lee Mace was tried by a jury and found guilty of the offense of aggravated robbery, with an enhancement based on the use of a firearm. He was sentenced to fifteen years for the aggravated-robbery conviction and to an additional five years for the firearm enhancement. His counsel has filed a motion to withdraw, accompanied by a brief, abstract, and addendum, pursuant to Anders v. California, 368 U.S. 738 (1967) and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, contending that an appeal in this case would be wholly frivolous. Mace was provided with a copy of his counsel's brief and notified that he had thirty days within which to raise any points of appeal, which he has done. The State has responded to the points filed by Mace, contending that the points are barred on appeal, not supported by the record, or otherwise without merit. We remand the case to the trial court to settle the record because we have not been provided with a complete record.
As we explained in Hadley v. State, 2010 Ark. App. 536, we must have the entire record of the trial-court proceedings to be able to properly review a criminal case that is presented to us in an Anders, no-merit format. See also Campbell v. State, 74 Ark. App. 277, 53 S.W.3d 48 (2001) (supp. op. on denial of rehearing). If anything material to either party is omitted from the record, by error or accident, we may direct that the omission or misstatement be corrected, and, if necessary, that a supplemental record be certified and transmitted. Hadley, supra; Ark. R. App. P.-Crim. 4(a); Ark. R. App. P.-Civ. 6(e). Here, as in Hadley, supra, the record itself does not contain matters that are essential for our review. Voir dire of the prospective jurors in this case was not designated to be included in the record for this appeal. We are, therefore, unable to review the record on this portion of the trial-court proceedings. Moreover, one of the pro se points raised by Mace generally challenges the selection of several jurors, whom Mace claims exhibited bias toward him. It is impossible for us to review his challenge without the voir dire portion of the record. That is true even though both parties asserted at the conclusion of voir dire that the jury panel was acceptable to them.
We will not address this appeal until the record is settled and supplemented and the case is rebriefed. We therefore remand this case for the record to be settled and supplemented within thirty days. Upon supplementation, the clerk will establish a new briefing schedule.
Remanded to settle and supplement the record.
VAUGHT, C.J., and HART, J., agree.