Carlos Ramone Reece v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR05-24

June 29, 2005

CARLOS RAMONE REECE AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR04-1554]

V. HON. JOHN LANGSTON, JUDGE

STATE OF ARKANSAS AFFIRMED; MOTION TO BE RELIEVED

APPELLEE AS COUNSEL IS GRANTED

Wendell L. Griffen, Judge

Carlos Reece appeals from his conviction for misdemeanor theft of property with a

value of $500 or less. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j), appellant's counsel has filed a motion to withdraw on the ground that the appeal is wholly without merit. Counsel's motion was accompanied by a brief explaining that there were no rulings made adverse to appellant and that his sentence does not offer a meritorious basis for appeal. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file his own list of pro se points. Appellant has chosen not to exercise this right, and the State, accordingly, has filed no brief. We affirm appellant's conviction and grant counsel's motion to be relieved.

Appellant was charged with Class B felony robbery and Class A misdemeanor theft of property with a value of $500 or less in connection with the theft of a sandwich from the Geyer Springs Kroger grocery store in Little Rock, Arkansas. The following testimony was adduced at appellant's bench trial.

The testimony of Paul Murgatroy, the manager at the store, was corroborated by Michael Duvall, another Kroger employee. Murgatroy and Duvall saw appellant enter the store, make a purchase, then leave. Appellant then re-entered the store, went to the deli sandwich area, picked up a foot-long sandwich, walked past Murgatroy, and proceeded to the front door. Murgatroy stopped appellant at the front door. Appellant said that he paid for the sandwich at the deli counter. When appellant could not produce a receipt for the sandwich, Murgatroy took the sandwich from him and asked him to come to Murgatroy's upstairs office.

Appellant initially cooperated and peacefully accompanied Murgatroy and Duvall to the entrance to the office. However, at that point, appellant clung to the door frame of the stairwell, physically resisted going into the office, and tried to push his way through Murgatroy and Duvall to leave. Duvall assisted Murgatroy in pushing appellant up the stairs to the office. Once appellant was inside the office, he became calm and was subsequently taken into custody.

The State rested after presentation of these two witnesses, and appellant thereafter offered no evidence. Appellant's counsel moved for a directed verdict on the Class B felony robbery charge, which the trial court granted. Appellant made no other motions. The trial court found appellant guilty of misdemeanor theft of property, ordered a pre-sentencing report, and scheduled a sentencing hearing. At the sentencing hearing, appellant conceded that the pre-sentencing report was correct. The trial court sentenced appellant to serve one year in the Pulaski County Jail, with credit for time served. This appeal followed.

When filing an Anders brief, counsel is required to list all rulings adverse to the defendant and to explain why each adverse ruling does not present a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(j)(1); Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). The test is not whether counsel thinks the trial court committed no reversible error, but ratherwhether the points to be raised on appeal would be wholly frivolous. Anders v. California, supra; Eads v. State, supra. Pursuant to Anders, we are required to make a determination after a full examination of all the proceedings of whether the case is wholly frivolous. Anders v. California, supra, Eads v. State, supra. Here, we affirm appellant's conviction and grant counsel's motion to be relieved.

As counsel argues, the trial court made no rulings adverse to appellant. Appellant made no objections and his sole motion, a directed verdict motion regarding the felony robbery charge, was granted. Thus, appellant did not preserve for our review any objection to the sufficiency of the evidence supporting the misdemeanor theft charge. Accordingly, any challenge to the misdemeanor theft charge has been waived and would not provide a meritorious ground for appeal. Ark. R. Crim. P. 33.1(b) and (c) (requiring that a motion for dismissal shall state the grounds therefore and that the failure to challenge the sufficiency of the evidence constitutes a waiver of the issue); Sharkey v. State, 71 Ark. App. 50, 25 S.W.3d 458 (2000)(holding the defendant failed to preserve the sufficiency argument because he did not raise it at trial).

Counsel also addresses the propriety of appellant's sentence and correctly concludes that his sentence would not offer a meritorious basis for an appeal because it was not an illegal sentence. Appellant was convicted of Class A theft of property with a value of $500 or less, which is a misdemeanor pursuant to Ark. Code Ann. § 5-36-103(a)(1) & (b)(5)(A) (Supp. 2003). The maximum sentence of incarceration for a Class A misdemeanor is one year. Ark. Code Ann. § 5-4-401(b)(1)(Repl. 1997). Hence, appellant's sentence was within the statutory range, and as such, was not an illegal sentence. Cooley v. State, 322 Ark. 348, 909 S.W.2d 312 (1995). Therefore, any appeal based on the legality of the sentence would be wholly frivolous.

Affirmed; motion to be relieved as counsel is granted.

Glover and Roaf, JJ., agree.