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Miller v. State

Court of Appeals of Arkansas, Division III

January 15, 2020



          Potts Law Office, by: Gary W. Potts, for appellant.

          Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.


         At a jury trial, appellant Timothy Miller was convicted of three counts of delivery of methamphetamine within 1000 feet of a school (two for less than two grams, one for more than two grams but less than ten grams), use of a communication device in commission of a drug offense, and fleeing. Miller was sentenced to fifty years in the Arkansas Department of Correction.

         In this no-merit appeal, Miller's appellate attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k)(1) (2019), seeking to withdraw as counsel on the basis that there is no merit to an appeal.

         On April 3, 2019, Miller filed pro se points pursuant to Rule 4-3(k)(2), alleging ten points for reversal. Those points include challenges to the sufficiency of the evidence and arguments regarding double jeopardy, ineffective assistance of counsel, due process, and evidentiary rulings. The State has filed a brief in response to each of Miller's points as required by Rule 4-3(k)(3). We affirm as modified and grant counsel's motion to withdraw.

         A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and addendum. Ark. Sup. Ct. R. 4-3(k)(1); Furo v. State, 2018 Ark.App. 23, at 2. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Furo, 2018 Ark.App. 23, at 2. This framework ensures that indigents are afforded their constitutional rights. Id. In furtherance of the goal of protecting these constitutional rights, it is the duty of both counsel and this court to perform a full examination of the proceedings and decide if an appeal would be wholly frivolous. Id.

         In compliance with the directives in Anders and Rule 4-3(k)(1), counsel for Miller contends that he has thoroughly examined the circuit court record of this proceeding and found no error that would support an appeal. As required by Rule 4-3(k), the reasons the adverse rulings provide no meritorious grounds for appeal are discussed in the brief.

         The first of these adverse rulings are the denials of the motions for directed verdict regarding each of the charges.

         It is unlawful for a person to deliver methamphetamine. Ark. Code Ann. § 5-64-422(a) (Repl. 2016). Delivery of less than two grams by aggregate weight, including an adulterant or diluent, is a Class C felony; delivery of two grams or more, but less than ten grams, is a Class B felony. Ark. Code Ann. § 5-64-422(b)(1) & (2) (Repl. 2016). Under Arkansas Code Annotated section 5-64-411(a), a person is subject to an enhanced sentence of an additional term of imprisonment of ten years if such a drug delivery is committed on or within 1, 000 feet of the real property of a school. It is further unlawful that a person use a communication device in the commission of a drug offense. Ark. Code Ann. § 5-64-404. Finally, fleeing on foot is a Class C misdemeanor. Ark. Code Ann. § 5-54-125.

         The evidence at trial was as follows. Deputy Tad Huntsman of the Ashley County Sheriff's Office testified that on October 18, 2017, he was working as an undercover officer in the Crossett area with an informant who said he could purchase drugs from Miller. The informant called Miller and arranged to purchase half a gram of methamphetamine. The informant had the call on speaker, and Huntsman listened. The parties all agreed to meet at Sixth and Arkansas Streets in Crossett in a lot across the street from the school that is on the adjacent corner. Huntsman later testified that the distance from the school to where the drug transaction took place is 198 feet.

         When they arrived, Miller got into the back seat of the car, handed the informant a baggie of methamphetamine, and took the money the informant handed him. Huntsman took possession of the drugs from the informant at that time and later packaged the methamphetamine and sent it to the state crime laboratory. The next day, Huntsman and the informant again called Miller, this time seeking to purchase half a gram of methamphetamine. They all met in the same place as the day before, and Miller again got into the back seat of the car, gave the informant a baggie of methamphetamine, and Huntsman gave Miller money in exchange.

         At that point, Miller asked them to take him to a tobacco store. Huntsman drove him there, and the informant went into the store. While the informant was inside, Huntsman asked Miller if he could get a larger amount of methamphetamine for him, and Miller said that he could. Miller gave Huntsman his phone number, and after the informant returned to the car, they drove ...

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