McJoy v. State

Cite as 2016 Ark. App. 337
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-15-795
Opinion Delivered June 22, 2016
I(EVIN LOUIS M.JOY APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2006-261 0]
HONORABLE CHARLES E.
CLAWSON, JR.,JUDGE
STATE OF ARKANSAS APPEAL DISMISSED; MOTION TO
APPELLEE WITHDRAW GRANTED
M. MICHAEL KINARD, Judge
The appellant, Kevin Louis McJoy, pled guilry in May 2007 to possession of a
controlled substance (cocaine) and possession of a controlled substance (marijuana) with
intent to deliver, both Class "C" felonies. He was placed on probation for a period of five
years subject to a number of conditions. In February 2077, a petition to revoke appellant's
probation was filed. After warrants for his arest were issued in 2011 and 2072 and after
multiple failures to appear, appellant was finally arrested in August 2073. After a revocation
hearing held the following month, appellant was found to have violated the terms of his
probation, and his probation was extended by an additional rwo years on the same conditions
attached to the original order.r In February 201,4, the prosecuting attorney filed another
lOrdinarily, a trial court can revoke a probation or suspension only prior to the
expiration of the period of suspension or probation. While the September 201.3 order was
entered after the expiration of appellant's original five-year probationary period, Arkansas
Cite as 2016 Ark. App. 337
petition to revoke appellant's probation, and another arrest warrant was issued. Appellant
was finally arrested inJune 201,5. At a hearing held promptly thereafter, appellant entered
a negotiated plea ofguilry to the violations alleged in the petition in exchange for concurrent
three-year sentences for his original drug offenses. An order to that effect was entered on
June 22,2075, and appellant filed a notice of appeal from that order.
Pursuant to Anders u. California, 386 U.S. 738 (1967), and Arkansas Supreme Court
Rule 4-3(k), appellant's attorney has filed a motion to be relieved as counsel, stating that
there is no merit to the appeal. The motion is accompanied by an abstract and addendum
of the proceedings below and a brief in which counsel asserts that there is nothing in the
record that would support an appeal. The clerk of this couft served appellant with a copy
of his counsel's brief and notified him of his right to file a pro se statement of points for
reversal within thirry days. Appellant has filed no such statement.
'We
must dismiss the appeal. As stated, appellant filed this appeal following his guilry
plea to the petition to revoke his probation. As a general rule, one may not appeal from an
order entered pursuant to a guilty plea. Burgess u. State,2076 Ark. 775. The rule applies
equally to pleas entered to revocations petitions. See, e.g., McCarty u. State,2074 Ark. App.
404; Cummins u. State,2013 Ark. App. 657. Essentially, there are three exceptions to the
general rule: (1) where one enters a conditional guilry plea and retains the right to argue one
of the specific issues in Ark. R. Crim. P. 2a3p); (2) when there is a challenge to evidence
Code Annotated section 16-93-308(0 (S"pp. 201,5) specifically allows a court to continue
to exercise jurisdiction over a probationer subsequent to the expiration of the probation
where a warrant is issued for the defendant's arrest prior to the expiration.
Cite as 2016 Ark. App. 337
presented in a sentencing hearing separate from the plea itself; and (3) where the assignment
of error is from a sentence or sentencing procedure that was not an integral part of the
acceptance of the plea. Butrgess, supra. 'W'e find nothing in this record that would bring
appellant's case within any of the exceptions to the general rule ofnonappealabliry ofa guilry
plea. Therefore, we dismiss the appeal and grant counsel's motion to withdraw.
Appeal dismissed; motion to withdraw granted.
'WHITEAKER
and HlxsoN, JJ., agree.
Joseph C. Self, for appellant.
No response.