Bluebird v. State
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Cite as 2011 Ark. App. 474
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR10-972
ALVINITO COLINA BLUEBIRD
APPELLANT
Opinion Delivered
JUNE 29, 2011
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. CR05-1394]
V.
HONORABLE JAMES O. COX,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
RAYMOND R. ABRAMSON, Judge
The circuit court revoked Alvinito Bluebird’s suspended imposition of sentence upon
finding that he violated the terms and conditions of his SIS. The circuit court then sentenced
Bluebird to six years’ imprisonment and four years’ SIS. Bluebird’s counsel on appeal has filed
a no-merit brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967) and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals.
In response, Bluebird has filed his own pro se points for reversal. We affirm the revocation
and grant Bluebird’s counsel’s motion to withdraw.
Under Rule 4-3(k)(1), a motion to be relieved as counsel based on counsel’s belief
that the appeal is wholly without merit must be accompanied by a brief. The brief’s argument
section must list each adverse ruling and explain why none provide a potentially meritorious
Cite as 2011 Ark. App. 474
ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1). The brief’s abstract and addendum must
cover all the material parts of the record, including each adverse ruling. Ark. Sup. Ct. R.
4-3(k)(1). Appellant’s counsel must follow the appropriate procedure in these cases because
“[t]his framework is a method of ensuring that indigents are afforded their constitutional
rights.” Caldwell v. State, 2009 Ark. App. 526, at 2, 334 S.W.3d 82, 83.
Here, Bluebird’s counsel’s brief addresses all of the adverse rulings made at the
revocation hearing and otherwise complies with all of the strictures of Rule 4-3(k) and
Anders, supra. We agree with Bluebird’s counsel’s conclusion: an appeal based upon any of
these adverse rulings would be wholly frivolous.1 Bluebird’s pro se points for reversal are
likewise unavailing. His arguments regarding ineffective assistance of counsel and double
jeopardy are not preserved for our review because he failed to raise them below. Davis v.
State, 368 Ark. 401, 409, 246 S.W.3d 862, 869 (2007). And Bluebird’s argument regarding
the “inconsistent statements” of the arresting officers is of no moment because we defer to
the fact-finder’s superior position to judge the witnesses’ credibility and to weigh the
evidence. Foster v. State, 104 Ark. App. 108, 110, 289 S.W.3d 476, 477 (2008). Thus, finding
an appeal on the merits to be wholly without merit, we affirm the revocation and grant
Bluebird’s counsel’s motion to be relieved as counsel.
1
We note that the June 2010 judgment and commitment order contains a clerical
error. The first count is listed as “manufacturing methamphetamine,” when it should have
been “manufacture of marijuana,” as reflected in the original June 2006 judgment and
commitment order. This error, however, has resulted in no prejudice to Bluebird and is not
reversible.
2
Cite as 2011 Ark. App. 474
Affirmed; motion granted.
ROBBINS and GRUBER, JJ., agree.
3
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