DORIANE CLENTAIL NORTON APPELLANT.
STATE OF ARKANSAS APPELLEE
FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-15-540]
HONORABLE BRENT HALTOM, JUDGE
Phillip A. McGough, P.A., by: Phillip A. McGough, for
Rutledge, Att'y Gen., by: David L. Eanes Jr., Ass't
Att'y Gen., for appellee.
and Murphy, JJ., agree.
MARK KLAPPENBACH, Judge
Clentail Norton appeals from a ruling of the Miller County
Circuit Court that revoked his probation. In 2016, Norton
pled guilty to eighteen counts of breaking or entering under
Arkansas Code Annotated section 5-39-202 and two counts of
theft of property under section 5-36-103(b) to receive a
total probationary sentence of 120 months.The State
petitioned to revoke Norton's probation in September
2017, alleging that Norton had been charged with two Class D
felony counts of delivery of methamphetamine; had failed to
pay fees, fines, and costs; and had failed to report to his
probation officer as required under the terms of his
circuit court conducted a bench hearing on September 14,
2017, where Detective Jesse Grigsby testified that Norton,
who was known to the Bi-State Narcotics Task Force, was the
individual who sold methamphetamine to a confidential
informant on two occasions in Texarkana. Jo Frederickson,
Norton's probation officer, also testified at the hearing
regarding the terms of Norton's probation and alleged
violations. Norton testified on his own behalf, maintaining
that he did not sell the methamphetamine and that the other
violations were excusable. Upon the conclusion of the
testimony, the court revoked Norton's probation, finding
that Norton had violated the terms of his probation by
failing to report, failing to pay fines, and committing two
felony counts of delivery of methamphetamine.
circuit court then imposed on Norton a prison sentence
totaling one hundred years (ten years on one charge and six
years each on fifteen charges) and an additional six-year
suspended imposition of sentence ("SIS") on the
remaining charges of theft and breaking or entering.
Specifically, the court ordered that charges one through
sixteen "run consecutive with each other, which will
give you a general sentence of 100 years[, ]" and for
"[c]ounts 17, 18, 19, and 20, the court gives you a six
year suspended imposition of sentence, so when you get out,
you can take care of paying back the people that you stole
from[.]" Amended sentencing orders were filed on
September 27, 2017, to reflect this ruling, with a note
explaining that "[c]ounts 1-16 shall run consecutively,
counts 17-20 shall run concurrent with each other but
consecutive to counts 1-16. Must pay all previously assessed
fines, costs, restitution, etc. upon release."
now appeals from the revocation. Norton's counsel has
submitted a no-merit brief and motion to be relieved as
counsel 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, asserting that the appeal
is wholly without merit because there are no nonfrivolous
arguments to be made, and therefore, the revocation order
should be affirmed. See, e.g., Parmer v.
State, 2017 Ark.App. 5. Norton has filed pro se points,
and the State has filed a brief in response. However, because
there is a nonfrivolous argument to be made for Norton on
appeal, we deny counsel's motion to withdraw and order
rebriefing in adversary form.
considering a no-merit brief, the court of appeals must
determine whether, after a full examination of the
proceedings, there is any nonfrivolous reason for appeal.
Parmer, 2017 Ark.App. 5, at 5 (citing
Anders, supra). A no-merit brief must
provide a "full examination of the proceedings as a
whole to decide if an appeal would be wholly frivolous."
Reed v. State, 2013 Ark.App. 432, at 3 (citing
Wakeley v. State, 2012 Ark.App. 448, at 2-3).
Arkansas Supreme Court Rule 4-3(k)(1) requires that a
no-merit argument address and discuss all adverse rulings
made by the circuit court on the defendant's objections,
motions, and requests, and explain "why each adverse
ruling is not a meritorious ground for reversal."
Reed, 2013 Ark.App. 432, at 3-4.
Arkansas, sentencing is entirely a matter of statute."
Reyes v. State, 2015 Ark.App. 55, at 5, 454 S.W.3d
279, 281 (citing Walden v. State, 2014 Ark. 193, at
3, 433 S.W.3d 864, 867). "The decision to impose
consecutive or concurrent sentences lies solely within the
province of the trial judge, and the appellant assumes a
heavy burden of showing that the trial judge failed to give
due consideration in the exercise of that discretion."
Maldonado v. State, 2009 Ark. 432, at 3 (citing
Smith v. State, 354 Ark. 226, at 248, 118 S.W.3d
542, 555 (2003)). However, the Arkansas Supreme Court has
held that Arkansas Code Annotated section 5-4-307(b) requires
that suspended sentences imposed with terms of imprisonment
for different crimes run concurrently, not consecutively.
Dodds v. State, 2018 Ark.App. 86, at 4 (citing
Limbocker v. State, 2016 Ark. 415, at 2-3, 504
S.W.3d at 593); Walker v. State, 2015 Ark. 153, at
3, 459 S.W.3d 300, 302. This rule holds true whether the
sentences are imposed at the same time or a different time.
Ark. Code Ann. § 5-4-307(b)(1) (Repl. 2006).
issue of an illegal sentence cannot be waived by the parties
and may be addressed for the first time on appeal."
Reyes, 2015 Ark.App. 55, at 5, 454 S.W.3d at 281
(citing State v. Webb, 373 Ark. 65, 69, 281 S.W.3d
273, 276 (2008)); Cheater v. State, 2010 Ark.App.
652, at 3.
present case, upon revoking Norton's probation, the
circuit court imposed the maximum allowable term (six years)
on fifteen counts of breaking or entering, the maximum
allowable term for the theft-of-property count (ten years),
and added the remaining counts as an SIS to run consecutive
to the first sixteen counts. That is, Norton would begin the
six-year suspended sentence upon his completion of the total
prison term for the sixteen counts of breaking or entering
and theft. Pursuant to the cases above, this ...