DANNY J. WILSON APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO.
60CR-10-2155] HONORABLE BARRY SIMS, JUDGE
William R. Simpson, Jr., Pub. Def., and Pat Aydelott, Deputy
Pub. Def., by: Margaret Egan, Deputy Pub. Def., for
Rutledge, Att'y Gen., by: Rebecca Bailey Kane, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge
Pulaski County Circuit Court entered a judgment and
commitment order revoking appellant Danny Wilson's
probation. Wilson's appellate counsel has filed a motion
to withdraw and a no-merit brief under Anders v.
California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R.
4-3(k)(1) (2015), asserting that an appeal would be wholly
frivolous and that this case should be affirmed. Wilson has
exercised his right to file pro se points for reversal,
the State has filed a response brief. In no-merit
submissions, we have a duty to perform a full examination of
the proceedings as a whole to decide if an appeal would be
wholly frivolous. Walton v. State, 94 Ark.App. 229,
231, 228 S.W.3d 524, 526 (2006). We determine that there are
nonfrivolous issues related to the sentencing in this case.
Therefore, we deny the motion to withdraw and order
rebriefing in merit format.
review of the history of this matter is helpful in
understanding our determination. On December 5, 2010, Wilson
entered a guilty plea to possession of cocaine with intent to
deliver (a Class Y felony), tampering with physical evidence
(a Class D felony), theft of property (a Class A
misdemeanor), and resisting arrest (a Class A misdemeanor).
The court sentenced him to six years' supervised
probation on the felony counts and twelve months'
supervised probation on the misdemeanor counts.
January 2012, the State sought to revoke Wilson's
probation for the first time. In March 2012, Wilson pled
guilty to the probation revocation. The court entered an
order revoking on the possession-with-intent-to-deliver
charge, the tampering-with-physical-evidence charge, and the
theft-of-property charge. Wilson's probation on the
misdemeanor resisting arrest was not revoked. The court, once
again, sentenced Wilson to six years' supervised
probation, this time on all three convictions, including the
misdemeanor- theft-of-property charge. No appeal was
taken from the March 2012 order.
months later, on October 4, 2012, the State sought to revoke
Wilson's probation for the second time. A hearing was
held on the revocation petition on June 4, 2015. At the
hearing, Wilson admitted violating the conditions of his
probation. As a result, the court revoked his probation. On
July 14, 2015, the trial court entered a sentencing order
revoking Wilson's probation on the felony charges of
possession with intent to deliver and tampering with physical
evidence. Wilson was sentenced to five years'
imprisonment and five years' suspended impositions of
sentences on both felony charges. Wilson's probation was
also revoked on the theft-of-property charge and on the
original count of resisting arrest. For both of these
misdemeanor charges, Wilson was sentenced to twelve months of
furtherance of the goal of protecting constitutional rights,
our full examination of the proceedings has identified
several issues pertaining to the legality of the sentences
imposed that prevents us from affirming this case and
granting counsel's motion to withdraw.
revoking a sentence of probation, the court may impose any
sentence on the defendant that might have been imposed
originally for the offense for which he was found guilty.
Ark. Code Ann. § 16-93-308 (Supp. 2015). Arkansas's
sentencing statute provides'
(a) A defendant convicted of a felony shall receive a
determinate sentence according to the following limitations:
. . .
(5) For a Class D felony, the sentence shall not exceed six
Ark. Code Ann. § 5-4-401 (Repl. 2006).
the five-year sentence with five years' suspended
imposition of sentence exceeds the maximum allowable sentence
available for Wilson's Class D felony
conviction. Additionally, on our review, it appears
that the trial court improperly revoked Wilson's
probation on the misdemeanor theft-of-property ...