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Miller v. State

Court of Appeals of Arkansas, Division III

January 15, 2020

TIMOTHY LEE MILLER, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT. NO. 02CR-17-195. HONORABLE SAM POPE, JUDGE.

         COUNSEL:

         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.

          MIKE MURPHY, Judge. HARRISON and HIXSON, JJ., agree.

          OPINION

Page 369

         MIKE MURPHY, Judge

          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, 87 S.Ct. 1396, 18 L.Ed.2d 493 (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. S.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 ...


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