James Turner v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

JAMES TURNER,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-3

JANUARY 12, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION,

(NO. CR2001-3310)

HONORABLE BARRY ALAN SIMS, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

Sam Bird, Judge

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, counsel for appellant James Turner has filed a motion to withdraw on the grounds that the appeal of this case, a revocation proceeding, is without merit. The motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal, together with a statement as to why counsel considers these matters as being incapable of supporting a meritorious appeal. Turner was provided with a copy of his counsel's brief and notified of his right to file a pro se listing of points for reversal within thirty days. He filed no points. We agree with Turner's counsel that there are no meritorious points for appeal and grant the motion to withdraw.

In October 2001, Turner pled guilty to theft by receiving, a Class B felony. He was placed on three years' probation and ordered to pay restitution and fines. In August 2002, the State filed a petition to revoke Turner's probation, and Turner pled guilty. The judge ordered Turner to be returned to his original sentence and to pay fines and costs. In April 2003, the State filed a second revocation petition against Turner, and Turner again pled guilty. The judge then sentenced him to five years' imprisonment.

In his no-merit brief, Turner's counsel argues that there are no non-frivolous issues that would support reversal of the court's decision to grant the State's revocation petition. As a preliminary matter, we note that a defendant generally has no right of appeal from a guilty plea. See Ark. R. App. P.-Crim. 1(a). However, a defendant may directly appeal the validity of the sentence imposed following a guilty plea if the appeal raises only issues pertaining to the sentence and does not require a review of the validity of the guilty plea itself. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). As Turner's counsel points out, the issues discussed in his no-merit brief concern Turner's sentence and Turner does not contest the validity of his guilty plea to the State's revocation petition.

Jail-Time Credit

Turner's counsel first asserts that the trial judge made only one adverse ruling in this case: when Turner requested 132 days' credit for jail time, the judge granted Turner only forty-eight days' credit. Our review of the record reveals that Turner's counsel actually requested 180 days' credit, including 132 days of "previous jail credit." In any event, Turner's counsel argues that no proof was introduced at the probation revocation hearing that Turner was entitled to receive the specified credit against his five-year sentence of imprisonment; thus, the record does not demonstrate that the trial judge erred in awarding Turner only forty-eight days' credit. We agree.

Pursuant to Arkansas Code Annotated section 5-4-404 (Supp. 2003), Turner was entitled to receive credit for time spent in custody against his sentence. In this case, however, Turner's counsel offered no evidence other than statements to the judge that Turner should have received the 180 days' credit requested (including the 132 days of previous jail credit). As Turner's counsel points out, in Wright v. State, 67 Ark. App. 365, 1 S.W.3d 41 (1999),we said that statements or arguments by counsel to the judge are not evidence. Because Turner's counsel failed to introduce any evidence to support the argument that Turner is entitled to the 180 days of jail time credit requested, we agree that the trial judge did not err in awarding Turner only forty-eight days' credit.

Subject-Matter Jurisdiction

As his next point, Turner's counsel apparently argues that the trial court had jurisdiction to grant the State's April 2003 revocation petition against Turner and to sentence Turner to five years' imprisonment. Pursuant to Act 1569 of 1999, a trial court can modify or amend an original sentence once it has been put into execution. See Ark. Code Ann. § 5-4-301(d) (Supp. 2003). Although Act 1569 does not does not apply to offenses committed prior to its effective date of April 15, 1999, see, e.g., Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003), that is not the case here. In this case, Turner committed the act giving rise to his probation in 2001. Thus, we agree that the circuit court had jurisdiction to revoke Turner's probation and to modify his sentence to five years in prison.

From a review of the record and the brief presented to this court, we find compliance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, and pursuant to the requirements of Anders, we hold that there is no basis for reversal. Accordingly, we affirm the trial court's decision and grant counsel's request to withdraw.

Affirmed; motion to withdraw granted.

Griffen and Neal, JJ., agree.