FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NOS. 18CR-10-1541;
18CR-12-600; 18CR-15-762] HONORABLE RALPH WILSON, JR., JUDGE
Butler Bernard, Jr., for appellant.
J. GLADWIN, JUDGE
a no-merit appeal from the revocation of appellant Andrew
Logan Wilson's probation and suspended imposition of
sentence in three cases by the Crittenden County Circuit
Court for which he was sentenced to twenty-six years in the
Arkansas Department of Correction, followed by ten years'
suspended imposition of sentence (SIS). Pursuant to
Anders v. California, 386 U.S. 738 (1967), and Rule
4-3(k) (2017) of the Rules of the Arkansas Supreme Court and
Court of Appeals, appellant's counsel has filed a motion
to withdraw on the ground that this appeal is wholly without
merit. The motion is accompanied by an abstract and addendum
of the proceedings below, alleged to include all objections
and motions decided adversely to appellant, and a brief in
which counsel explains why there is nothing in the record
that would support an appeal. The clerk of this court
provided appellant with a copy of his counsel's brief and
notified him of his right to file a pro se statement of
points for reversal within thirty days. Appellant did not
file pro se points, and as a consequence, the attorney
general has not filed a brief in response.
is a no-merit appeal, counsel is required to list each ruling
adverse to the defendant and to explain why each adverse
ruling does not present a meritorious ground for reversal.
See Anders, supra; Ark. Sup. Ct. R.
4-3(k)(1); Eads v. State, 74 Ark.App. 363, 47 S.W.3d
918 (2001). The test is not whether counsel thinks the
circuit court committed no reversible error, but whether the
points to be raised on appeal would be wholly frivolous.
See Anders, supra; Eads,
supra. Pursuant to Anders, we are required
to determine whether the case is wholly frivolous after a
full examination of all the proceedings. See also
Eads, supra. Because there is a nonfrivolous
argument to be made for appellant on appeal, we deny
counsel's motion to withdraw and order rebriefing in
pled guilty in 2011 to residential burglary and received 60
months' probation. That probation was revoked, and
appellant was sentenced on September 14, 2012, to 120
months' imprisonment and 120 months' SIS after a
negotiated guilty plea and sentencing for residential
burglary, theft of property, and possession of a firearm by a
felon. Appellant pled guilty on October 30, 2015, to delivery
of a counterfeit substance, and he was sentenced to 60
revocation petition filed November 27, 2017, the State
alleged that appellant had violated the terms and conditions
under which he received the probation and SIS as set forth
above by failing to pay fines, costs, and fees; failing to
live a law-abiding life, be of good behavior, and not violate
any state, federal, or municipal laws; failing to report to
his probation officer as directed; and committing aggravated
robbery on March 31, 2017.
revocation hearing held on December 4, 2017, appellant's
probation officer testified along with two witnesses, Ashley
Sumner and Alisha Dorsey, who alleged that appellant had used
a gun when he robbed Sumner of money and
marijuana. The circuit court denied appellant's
directed-verdict motion. Thereafter, appellant testified
about his previous criminal charges and sentences. He
admitted stealing marijuana from Sumner but stated that she
had been mad at him for stealing her weed, so she filed a
false police report that he had stolen her money and phone.
He also admitted that he was "guilty of missing a few
visits" with his parole officer. He testified about his
income and expenses, concluding that his expenses exceed his
income by twenty dollars each month; thus, he claimed that he
was unable to pay his fines and fees.
renewed his motion for directed verdict on the same grounds,
and the court denied the motion. The circuit court found by a
preponderance of the evidence that appellant had inexcusably
failed to comply with the conditions of probation and SIS in
his three cases: Nos. CR-15-762, CR-12-600, and CR-10-1541.
First, the court found that appellant had failed to pay all
fines and costs, citing the evidence of no payments in each
case. Second, the court found that he had failed to report to
probation as directed, citing appellant's admission of
absconding, both at the revocation hearing and in sworn
testimony in a separate parole proceeding. Third, the court
found that appellant failed to live a law-abiding life, be of
good behavior, and not violate any state, federal, or
municipal law by stealing marijuana from Sumner. The court
also found that, based on the adamant, unequivocal, detailed,
and credible testimony of Dorsey and the adamant, consistent,
unequivocal, and detailed testimony of Sumner, appellant
purposely pointed a gun at Dorsey and threatened her safety
and that he stole marijuana, a cell phone, and $600 in cash
from Sumner. The court noted that appellant conceded he had
contacted Sumner for the exchange of marijuana and that the
deal had gone bad.
circuit court noted the range of punishment for the matter
was from five to forty-six years; waived all previous fines
and costs in each case; sentenced appellant to 120
months' imprisonment in case number CR-15-762 (delivery
of a counterfeit substance); sentenced appellant to 72
months' imprisonment and 120 months' SIS in case
number CR-12-600 (theft; felon with a firearm); sentenced
appellant to 120 months' imprisonment in case number
CR-10-1541 (residential burglary); and ordered that the
sentences be served consecutively. Appellant filed a timely
notice of appeal.
compliance with the directive in Anders and Rule
4-3(k), counsel claims that he has thoroughly examined the
record of this proceeding but found no error that would
support an appeal. However, in a strikingly similar case,
this court recently stated as follows:
"In 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, 543 S.W.3d
513 (citing Limbocker v. State, 2016 Ark. 415, at
2-3, 504 S.W.3d 592, 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.
"The 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 ...