Opinion
CA CR 10-668
Opinion Delivered January 19, 2011
Appeal from the Pulaski County Circuit Court, Fourth Division, [No. CR-08-5045], Honorable Herbert W. Wright, Jr., Judge, Affirmed; Motion to Withdraw Granted.
After pleading guilty to reckless burning, Kevin Barnes was sentenced by a Pulaski County judge to ten years' imprisonment followed by two years' suspended imposition of sentence. He was also ordered to pay $34,152.47 in restitution, which represented the amount an insurance company paid to the owner of the burned home. His attorney has filed a motion to withdraw as counsel, citing an inability to find a meritorious ground for reversal. Counsel has also submitted a no-merit brief pursuant to Anders v. California and Arkansas Supreme Court Rule 4-3(k). Barnes has filed pro se points, challenging the prison sentence and the restitution. After reviewing the record, we agree that an appeal in this case would be wholly without merit. Therefore, we grant counsel's motion to withdraw and affirm Barnes's sentence.
386 U.S. 738 (1967).
The State charged Barnes with arson after he set fire to a couch. The fire got out of hand, resulting in damage to the house itself. Barnes agreed to plead guilty to a reduced charge, reckless burning, and to be sentenced by the court. The house was owned by Jem O Lee McCaghren, and she was the only person to testify at the sentencing hearing. She testified about the damage done to the house and stated that she spent about $23,000 on repairs. The home was insured, and the insurance company paid her $34,152.47. Over defense counsel's objection, the State introduced into evidence an invoice itemizing the amount paid by the insurance company.
At the conclusion of the hearing, the court sentenced Barnes to ten years' imprisonment, followed by two years' suspended imposition of sentence. The suspended imposition of sentence was conditioned upon Barnes paying $34,152.47 in restitution to the insurance company. Counsel filed a motion to reconsider both the sentence and the amount of restitution, but the court denied the motion.
An attorney's request to withdraw from appellate representation based upon a meritless appeal must be accompanied by a brief that contains a list of all rulings adverse to his client made on any objection, motion, or request made by either party. The argument section of the brief must contain an explanation of why each adverse ruling is not a meritorious ground for reversal. In a criminal case, a no-merit brief that fails to explain an adverse ruling does not satisfy the requirements of Rule 4-3(k)(1) and must be rebriefed.
Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001).
Id.
Sartin v. State, 2010 Ark. 16, ___ S.W.3d ___ (per curiam).
First, there were a number of hearsay objections. Counsel states, and we agree, that the rules of evidence do not strictly apply in nonjury sentencing proceedings.
Second, Barnes objected and filed a motion for reconsideration when he was sentenced to more than the presumptive sentence of RPF/AS (regional punishment facility or alternative sanctions). But Barnes could have been sentenced up to twelve years' imprisonment, and his criminal history, the dangerous nature of the crime, and the fact that he pleaded guilty to a lesser offense support the upward deviation. Further, during the plea hearing, he was informed that he could be sentenced up to twelve years' imprisonment. In his pro se points, Barnes argues that he pleaded guilty under the belief that he would receive a lighter sentence, but he cannot complain that he did not receive the sentence he thought he would receive when he was warned of the potential sentence range.
Finally, there is the issue of restitution. Counsel argues that Barnes was put on notice that the court might order restitution. In Irvin v. State, we held that the restitution statute puts a criminal defendant on notice that a court may order restitution in addition to imprisonment or a fine. Recently, our supreme court held that restitution could be awarded to an insurance company. Barnes never challenged the amount of restitution; therefore, any argument that restitution was excessive is not preserved for appellate review. And if Barnes is truly unable to pay the restitution, a court cannot revoke his suspended imposition of sentence in the future for failure to pay.
28 Ark. App. 6, 771 S.W.2d 26 (1989).
See Singleton v. State, 2009 Ark. 594, ___ S.W.3d ___.
See Phillips v. State, 304 Ark. 656, 803 S.W.2d 926 (1991).
See Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997) (holding that a probationer cannot be punished by imprisonment solely because of failure to pay restitution, absent determination that failure to pay was willful).
After reviewing the record, we hold that an appeal here would be wholly without merit. Therefore, we affirm Barnes's sentence and grant counsel's motion to withdraw. Affirmed; motion to withdraw granted.
ROBBINS and GRUBER, JJ., agree.