Opinion
No. CACR12-229
01-16-2013
TIMOTHY WISE APPELLANT v. STATE OF ARKANSAS APPELLEE
Potts Law Office , by: Gary W. Potts , for appellant. No response.
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT, [NO. CR2002-786-1]
HONORABLE BERLIN C. JONES, JUDGE
DISMISSED; MOTION GRANTED
ROBERT J. GLADWIN, Chief Judge
This is an attempted no-merit appeal from the revocation of appellant Timothy Wise's probation wherein he was sentenced to six years in the Arkansas Department of Correction. Wise was charged by information on July 12, 2002, in Jefferson County, Arkansas, with the offense of a hot-check violation, a Class C felony. He was sentenced to a period of sixty months' probation. In July 2009, the State filed a petition to revoke Wise's probation. A violation report alleged that appellant tested positive for marijuana; failed to report to his probation officer; was behind on the payment of supervision fees and costs, fines, and restitution to the sheriff's office; and had failed to perform any of his 120 hours of community service. An order was entered continuing Wise on probation for a period of twelve months.
In April 2011, the State filed a second petition to revoke Wise's probation. A violation report alleged that Wise failed to report to his probation officer for several months; that he failed to accurately report his place of residence; that he failed to report to his substance-abuse classes; that he was behind on his supervision fees and payments on his fees, fines, and restitution to the sheriff's office; and that he had failed to complete any of his 120 hours of community service. At the hearing, the State agreed to withhold sentencing for ninety days to allow appellant to get current. The trial court ordered him to make his payments, report to the probation office, do some community service, and also attend his drug program. Wise, with counsel, waived a hearing and stated that he wanted to admit to the violations and do what the court was recommending.
On August 9, 2011, Wise appeared with counsel for sentencing. If he was in compliance he would restart his probation and, if not, be sentenced to the Arkansas Department of Correction. The probation officer reported that Wise was not in compliance—that he had tested positive for marijuana and was delinquent in payments of fines and fees. Wise responded that he could not obtain assistance with his addiction by way of the probation office despite his repeated requests.
The trial court ordered a September 2011 review date with specific instructions for Wise to make his best efforts to enter a drug program via the probation office. He was ordered to get assessed and into a program by September 13, 2011, and warned that failure to make progress with controlling his addiction would result in imprisonment. He was told he could smoke marijuana no more, effective immediately.
At the September 13, 2011 sentencing hearing, the probation officer reported to the trial court that, although Wise's levels had decreased, appellant admitted to him that a relapse of smoking marijuana had occurred upon the death of his grandmother. Wise also had misrepresented that he was employed when, in fact, he was suspended from work and, in addition, that he had made no payments to the sheriff's office.
Wise's counsel has filed a motion to withdraw and a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k)(1) (2011). Wise was provided a copy of his counsel's brief and was notified of his right to file a list of pro se points on appeal within thirty days; however, he has not raised any pro se points for reversal. As a result, the State did not file a brief. A motion of this type must be accompanied by an abstract and a brief listing and discussing all rulings adverse to appellant and explaining why there would be no merit to an appeal. Ark. Sup. Ct. R. 4-3(k).
We hold that the appeal is without merit because Wise is not permitted to bring an appeal. Except as provided by Arkansas Rule of Criminal Procedure 24.3(b) (2011), there shall be no appeal from a plea of guilty or nolo contendere. Ark. R. App. P.–Crim. 1(a) (2011). Arkansas Rule of Criminal Procedure 24.3(b) allows a defendant to enter a conditional guilty plea under certain specified circumstances. Wise 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, and an appeal may 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. Thus, Wise's appeal is dismissed, and the motion to withdraw is granted. Kelley v. State, 2012 Ark. App. 36.
Dismissed; motion granted.
GLOVER and VAUGHT, JJ., agree.
Potts Law Office, by: Gary W. Potts, for appellant.
No response.