Rakestraw v. State
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR07-278
Opinion Delivered
January 14, 2009
APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT,
[NO. CR-2002-497]
BRYAN KEITH RAKESTRAW
APPELLANT
HONORABLE DAVID N. LASER,
JUDGE
V.
STATE OF ARKANSAS
AFFIRMED; MOTION TO
WITHDRAW GRANTED
APPELLEE
LARRY D. VAUGHT, Chief Judge
On December 7, 2006, the Crittenden County Circuit Court revoked the suspended
imposition of sentence of Bryan Keith Rakestraw. His attorney has filed a motion to
withdraw as counsel, accompanied by a brief, arguing that an appeal would be frivolous. After
reviewing the record, we conclude that an appeal in this case would be wholly without merit;
accordingly, we affirm the revocation and grant counsel’s motion to withdraw.
On October 23, 2002, Rakestraw pled guilty to possession of a controlled substance
and received a forty-eight month suspended sentence. In October 2006, the State filed a
revocation petition, alleging that Rakestraw had violated the conditions of his suspension.
After a hearing, the trial court granted the State’s petition, finding that Rakestraw had failed
to pay his fines and costs, possessed instruments of crime, and possessed methamphetamine.
Rakestraw was sentenced to forty-eight months’ imprisonment.
1
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court
Rule 4-3(j), Rakestraw’s counsel filed a motion to withdraw, contending that an appeal was
wholly without merit. In an unpublished opinion, Rakestraw v. State, CACR 07-278 (Ark.
App. Jan. 16, 2008), we held that Rakestraw’s counsel’s brief was noncompliant, and we
ordered rebriefing. Before us now is Rakestraw’s counsel’s second no-merit brief and motion
to be relieved as counsel.1 The State filed no responsive brief.
Rakestraw’s counsel argues, and our review of the record confirms, that there were
only three rulings adverse to Rakestraw—two evidentiary rulings and the revocation of his
suspended sentence. We agree with Rakestraw’s counsel that the trial court did not abuse its
discretion as it relates to the evidentiary rulings and that the trial court did not err in
concluding that a preponderance of the evidence supported the revocation. Therefore, we
hold that an appeal from the trial court’s revocation determination would be wholly without
merit. Accordingly, we affirm the trial court’s revocation and grant counsel’s motion to be
relieved.
Finally, while Rakestraw did not file pro se points on appeal after his counsel filed the
second no-merit brief and motion to be relieved, Rakestraw did file a pro se notice of appeal
listing two points for reversal. The first point was that he was entitled to jail credit of at least
sixty-one days, and the second was that his counsel was ineffective. Neither of these
1
The clerk of this court mailed Rakestraw a copy of his counsel’s second brief and
motion and attempted to notify him of his right to file a pro se statement of points for
reversal. However, the documents were returned to the clerk’s office marked,
“Unclaimed,” with the notation that the post office had made three unsuccessful attempts
to deliver them.
2
arguments were raised below. Parties may not change their argument on appeal and are
limited to the scope and nature of the arguments made below. Hunter v. State, 330 Ark. 198,
952 S.W.2d 145 (1997); see also Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995)
(holding that claims of ineffective assistance of counsel are not cognizable on appeal unless
specifically raised below). As such, we do not consider Rakestraw’s points.
Affirmed; motion to withdraw granted.
R OBBINS and M ARSHALL, JJ., agree.
3
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