McCarty v. State

Cite as 2014 Ark. App. 404ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-13-901
SHAWN PATRICK McCARTY Opinion Delivered June 18, 2014
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
GREENWOOD DISTRICT
V. [NO. CR-04-152]
HONORABLE JAMES O. COX,
JUDGE
STATE OF ARKANSAS
APPELLEE APPEAL DISMISSED
PHILLIP T. WHITEAKER, Judge
Shawn McCarty appeals from his sentencing following the revocation of his suspended
imposition of sentence (SIS). Because McCarty pled no contest to the petition to revoke his
SIS, we must dismiss his appeal.
McCarty pled guilty to three counts of second-degree forgery in December 2004 in
cases No. CR-2004-665, CR-2004-1299, and G-CR-2004-152; he was sentenced to ten
years’ SIS. In addition, he was ordered to pay restitution in the amount of $3,294.60, as well
as a fine, fees, and costs. The State filed a petition to revoke McCarty’s SIS in June 2010,
alleging that he had failed to pay the restitution, fine, fees, and costs.
McCarty pled no contest to the petition in December 2012, and the circuit court took
the matter under advisement for six months in order to give McCarty a chance to make some
Cite as 2014 Ark. App. 404payments toward the amounts he owed. At the sentencing hearing in September 2013, the
State introduced, without objection, the restitution profile in the case, which showed that
McCarty had only made one payment since his no-contest plea. McCarty testified on his
own behalf, stating that he recalled the court ordering him to pay $50 per month when he
entered his plea the previous December. McCarty admitted that, while he had made one
payment toward the restitution he owed and had money to make more payments, he spent
the money on drugs instead. The circuit court revoked McCarty’s SIS in case No. G-CR-
2004-152 and sentenced him to four years, to be served at a regional correctional facility,
with an additional six years’ SIS.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules
of the Arkansas Supreme Court and Court of Appeals, McCarty’s counsel has filed a motion
to withdraw on the grounds that the appeal is wholly without merit. Counsel’s motion is
accompanied by a brief referring to everything in the record that might arguably support an
appeal; there were no objections raised during the hearing, and the only adverse ruling was
the sentencing upon revocation of McCarty’s SIS. The clerk of our court furnished McCarty
with a copy of his counsel’s brief and notified him of his right to file pro se points, but he has
not done so.
We must dismiss the appeal because McCarty is not permitted to bring an appeal in
these circumstances. Except as provided by Arkansas Rule of Criminal Procedure 24.3(b)
(2013), there shall be no appeal from a plea of guilty or nolo contendere. Ark. R. App.
P.–Crim. 1(a) (2013). Arkansas Rule of Criminal Procedure 24.3(b) allows a defendant to
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Cite as 2014 Ark. App. 404enter a conditional guilty plea under certain specified circumstances, but McCarty did not
enter a conditional plea under Rule 24.3(b).
Our supreme court has recognized two other exceptions to Rule 1(a). An appeal may
be taken after a guilty plea when the issue on appeal is one of evidentiary errors that arose
after the plea but during the sentencing phase of the trial, regardless of whether a jury was
impaneled or the trial judge sat as the trier of fact during that phase. Johnson v. State, 2010
Ark. 63. An appeal may also be taken from the denial of a postjudgment motion to amend
an incorrect or illegal sentence following a guilty plea. Reeves v. State, 339 Ark. 304, 5
S.W.3d 41 (1999). Neither of those exceptions applies here—our review of the entire record
indicates that there is no challenge to the evidence presented during McCarty’s sentencing
hearing, and there is no challenge to the validity of the sentence itself. McCarty’s appeal is
therefore dismissed, and the motion to withdraw is granted. See Houston v. State, 2014 Ark.
App. 344.
Appeal dismissed.
GLADWIN , C.J., and PITTMAN , J., agree.
David L. Dunagin, for appellant.
No response.
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