FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. 02CR-17-195]
HONORABLE SAM POPE, JUDGE
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
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
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.
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.
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.
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.
first of these adverse rulings are the denials of the motions
for directed verdict regarding each of the charges.
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.
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.
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.
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