Wilson v. State , 2016 Ark. App. 342 ( 2016 )

Cite as 2016 Ark. App. 342
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-15-796
Opinion Delivered June 22, 2016
DANNY J. WILSON
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
SEVENTH DIVISION
V. [NO. 60CR-10-2155]
HONORABLE BARRY SIMS, JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED; MOTION
TO WITHDRAW DENIED
PHILLIP T. WHITEAKER, Judge
The Pulaski County Circuit Court entered a judgment and commitment order
revoking appellant Danny Wilson’s probation. Wilson’s appellate counsel has filed a motion
to withdraw and a no-merit brief under Anders v. California, 386 U.S. 738 (1967), and Ark.
Sup. Ct. R. 4-3(k)(1) (2015), asserting that an appeal would be wholly frivolous and that this
case should be affirmed. Wilson has exercised his right to file pro se points for reversal,1 and
the State has filed a response brief. In no-merit submissions, we have a duty to perform a full
examination of the proceedings as a whole to decide if an appeal would be wholly frivolous.
Walton v. State, 94 Ark. App. 229, 231, 228 S.W.3d 524, 526 (2006). We determine that
there are nonfrivolous issues related to the sentencing in this case. Therefore, we deny the
motion to withdraw and order rebriefing in merit format.
1
We have reviewed Wilson’s pro se points and find them to be either without merit
or not preserved for our review.
Cite as 2016 Ark. App. 342
A review of the history of this matter is helpful in understanding our determination.
On December 5, 2010, Wilson entered a guilty plea to possession of cocaine with intent to
deliver (a Class Y felony), tampering with physical evidence (a Class D felony), theft of
property (a Class A misdemeanor), and resisting arrest (a Class A misdemeanor). The court
sentenced him to six years’ supervised probation on the felony counts and twelve months’
supervised probation on the misdemeanor counts.
In January 2012, the State sought to revoke Wilson’s probation for the first time. In
March 2012, Wilson pled guilty to the probation revocation. The court entered an order
revoking on the possession-with-intent-to-deliver charge, the tampering-with-physical-
evidence charge, and the theft-of-property charge. Wilson’s probation on the misdemeanor
resisting arrest was not revoked. The court, once again, sentenced Wilson to six years’
supervised probation, this time on all three convictions, including the misdemeanor- theft-of-
property charge.2 No appeal was taken from the March 2012 order.3
Seven months later, on October 4, 2012, the State sought to revoke Wilson’s
probation for the second time. A hearing was held on the revocation petition on June 4, 2015.
At the hearing, Wilson admitted violating the conditions of his probation. As a result, the
court revoked his probation. On July 14, 2015, the trial court entered a sentencing order
2
The sentencing order has other complicating issues. Although it recites that Wilson
is sentenced to six years’ probation on each of the three offenses, it also states in the section
for additional information: “Return to original sentence – Probation extended 7 months.”
It is unclear exactly what sentence the trial court actually imposed or intended to impose.
3
On June 2, 2015, an order amending the March 2012 order was entered; however,
it does not appear to change any of the sentencing anomalies noted above.
2
Cite as 2016 Ark. App. 342
revoking Wilson’s probation on the felony charges of possession with intent to deliver and
tampering with physical evidence. Wilson was sentenced to five years’ imprisonment and five
years’ suspended impositions of sentences on both felony charges. Wilson’s probation was also
revoked on the theft-of-property charge and on the original count of resisting arrest. For
both of these misdemeanor charges, Wilson was sentenced to twelve months of probation.
In furtherance of the goal of protecting constitutional rights, our full examination of
the proceedings has identified several issues pertaining to the legality of the sentences imposed
that prevents us from affirming this case and granting counsel’s motion to withdraw.
Upon revoking a sentence of probation, the court may impose any sentence on the
defendant that might have been imposed originally for the offense for which he was found
guilty. Ark. Code Ann. § 16-93-308 (Supp. 2015). Arkansas’s sentencing statute provides’
(a) A defendant convicted of a felony shall receive a determinate sentence
according to the following limitations:
...
(5) For a Class D felony, the sentence shall not exceed six (6) years.
Ark. Code Ann. § 5-4-401 (Repl. 2006).
Here, the five-year sentence with five years’ suspended imposition of sentence exceeds
the maximum allowable sentence available for Wilson’s Class D felony conviction.4
4
While our court may raise and correct a facially invalid sentence sua sponte, see
McMullin v. State, 2016 Ark. App. 181, we decline to do so in this instance without further
guidance from the parties as to what sentence, if any, should be imposed on the Class D
felony. We admonish all appellate counsel in future no-merit appeals to fulfill his or her duty
to review the entire record, not only for adverse rulings of the court, but also for any illegal
sentences that may have been imposed.
3
Cite as 2016 Ark. App. 342
Additionally, on our review, it appears that the trial court improperly revoked Wilson’s
probation on the misdemeanor theft-of-property and resisting-arrest offenses, because the
probations on those offenses had already expired.
Counsel is directed to file a brief in adversarial format, discussing the issue of the illegal
sentence and any other potentially meritorious issues. The State will then have the
opportunity to file a response brief.
Rebriefing ordered; motion to withdraw denied.
KINARD and HIXSON, JJ., agree.
William R. Simpson, Jr., Pub. Def., and Pat Aydelott, Deputy Pub. Def., by: Margaret
Egan, Deputy Pub. Def., for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.
4