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 Eagan, Deputy Pub. Def., for
Rutledge, Att'y Gen., by: Rebecca Bailey Kane, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge
Wilson appeals from the Pulaski County Circuit Court's
2015 order revoking his probation. This is the second time
this appeal has been before us. Counsel initially filed a
motion to withdraw and a no-merit-brief appeal pursuant to
Anders v. California, 386 U.S. 738 (1967), and Ark.
Sup. Ct. R. 4-3(k)(1) (2015). However, in an opinion dated
June 22, 2016, we held that an appeal of his revocation would
not be wholly frivolous and directed counsel to submit an
adversarial brief on whether the trial court had imposed an
illegal sentence. Wilson v. State, 2016 Ark.App.
342. Counsel has now submitted an adversarial brief, arguing
that the trial court did in fact impose an illegal sentence,
and the State concedes error. For the reasons set forth
below, we agree.
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
has had his probation revoked two separate times.
Wilson's probation was revoked for the first time in
March 2012 after he pled guilty to the revocation. The court
revoked Wilson's probation on the felony convictions and
sentenced him to a new term of six years' supervised
probation. The court did not revoke Wilson's probation on
the misdemeanor conviction for resisting arrest but did
revoke it on the misdemeanor theft-of-property charge,
sentencing him to six years of probation.
the State sought to revoke Wilson's probation on all
original convictions for a second time. The matter
proceeded to a contested revocation hearing, after which the
court found Wilson guilty and revoked his probation. The
court entered a sentencing order on June 17, 2015, sentencing
Wilson to five years' imprisonment and five years'
suspended imposition of sentence on both his
possession-with-intent-to-deliver and his
tampering-with-physical-evidence convictions, and to twelve
months' probation on his theft-of-property and
resisting-arrest convictions. We find that the court imposed
illegal sentences on the tampering-with-physical-evidence
conviction, as well as the theft-of-property and
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 as follows:
(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
(6) years. Ark. Code Ann. § 5-4-401 (Repl. 2013).
the court revoked Wilson's probation on the
tampering-with-physical-evidence conviction, a Class D
felony. The court imposed a sentence of five years'
imprisonment and five years' suspended imposition of
sentence, when the maximum sentence allowable is six years.
Because the court's imposition of sentence exceeded the