Whitney v. State

Cite as 2015 Ark. App. 8
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-14-524
DERRICK A. WHITNEY Opinion Delivered January 14, 2015
APPELLANT
APPEAL FROM THE CRITTENDEN
V. COUNTY CIRCUIT COURT
[NO. CR-2009-734]
STATE OF ARKANSAS HONORABLE RALPH WILSON, JR.,
APPELLEE JUDGE
AFFIRMED; MOTION GRANTED
RITA W. GRUBER, Judge
In May 2010, Derrick A. Whitney pleaded guilty to selling or delivering cocaine and
received eight years’ probation, subject to written conditions. In September 2012, the State
alleged in a petition to revoke that Whitney violated conditions of probation that included
a requirement to pay fines and costs. At the conclusion of the revocation hearing, the circuit
court found that Whitney had made no payments and had inexcusably failed to comply with
the condition to pay fines and costs. The court revoked Whitney’s probation and sentenced
him to twenty-four months’ confinement in the Arkansas Department of Community
Correction1 and thirty-six months’ suspended imposition of sentence.
Pursuant to Rule 4-3(k)(1) of the Rules of the Arkansas Supreme Court and Court of
Appeals (2014), Whitney’s counsel has filed a no-merit brief and a motion to withdraw on
1
Counsel incorrectly states in his brief that Whitney was to serve twenty-four months
in the Arkansas Department of Correction.
Cite as 2015 Ark. App. 8
the ground that an appeal in this matter would be wholly without merit. Whitney was
notified of his right to file pro se points for reversal and has done so; the State has responded
to those points.
Counsel informs us that the revocation itself was the only ruling adverse to Whitney.
The argument section of counsel’s no-merit brief fairly summarizes testimony by the collector
of fines, documentary evidence, and testimony by Whitney regarding his failure to pay fines
and costs. The State correctly argues in its brief that Whitney’s points, which essentially ask
that he be allowed to return home to look after his elderly mother, amount to a plea for
clemency that must be addressed to the executive branch rather than to this court. E.g.,
Parker v. State, 302 Ark. 509, 512, 790 S.W.2d 894, 895 (1990); Nguyen v. State, 2010 Ark.
App. 25, at 2.
From our review of the record and the briefs presented to us, we find compliance with
Rule 4-3(k)(1), and we hold that there is no merit to this appeal. Accordingly, counsel’s
motion to withdraw is granted and the order of revocation is affirmed.
Affirmed; motion granted.
GLOVER and WHITEAKER, JJ., agree.
C. Brian Williams, for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
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