Dukes v. State

2016 Ark. App. 22

• Court: Court of Appeals of Arkansas
• Decided: January 13, 2016
• Docket: CR-15-277
• Status: Published

Opinion

Cite as 2016 Ark. App. 22

ARKANSAS COURT OF APPEALS DIVISION III No. CR-15-277

KENDRICK R. DUKES Opinion Delivered: January 13, 2016 APPELLANT APPEAL FROM THE ARKANSAS V. COUNTY CIRCUIT COURT, NORTHERN DISTRICT STATE OF ARKANSAS [NO. CR-12-311] APPELLEE HONORABLE DAVID G. HENRY, JUDGE

AFFIRMED; MOTION TO BE RELIEVED GRANTED; REMANDED WITH INSTRUCTIONS TO CORRECT SENTENCING ORDER

WAYMOND M. BROWN, Judge

Appellant appeals from the circuit court’s sentencing order entered on September 5,

2014, showing his convictions by jury of battery—second degree; resisting arrest; possession

of marijuana (sch. VI)(< 4oz); possession of controlled substance schedule IV, V 28g; and

fleeing on foot. Appellant’s counsel has filed a no-merit brief and a motion to be relieved as

counsel, pursuant to Anders v. California, 1 and Arkansas Supreme Court Rule 4-3(k), 2 stating

that there are no meritorious grounds to support appeal. The clerk mailed a certified copy

of counsel’s motion and brief to appellant, informing him of his right to file pro se points

for reversal. Appellant failed to file pro se points for reversal. We affirm appellant’s

1 386 U.S. 738 (1967). 2 (2011). Cite as 2016 Ark. App. 22

convictions, grant counsel’s motion to be relieved as counsel, and remand with instructions

to correct the sentencing order.

Appellant was stopped for violation of a city noise ordinance by Officer Cody

Church of the Stuttgart Police Department on September 21, 2012. Appellant did not

immediately stop, but continued on a short distance to the parking lot of an apartment

complex. Upon stopping and being advised not to get out of the car, appellant exited the

vehicle. After being grabbed by Officer Church, who had advised him that he was under

arrest, appellant fled on foot into nearby bushes. As he fled, Officer Church saw appellant

discard a black item. Appellant and Officer Church fell into a briar patch when appellant

tripped. During Officer Church’s attempted apprehension of appellant, appellant elbowed

Officer Church in his head. Other officers arrived as Officer Church escorted appellant to

the police car where he was taken into custody. One of those officers discovered the black

item that appellant discarded. The black item was a bag containing marijuana and

approximately twenty pills; the pills were later identified as carisoprodol, a schedule IV

controlled substance.

Appellee filed an amended information on November 25, 2012, charging appellant

with the crimes of battery—second degree; resisting arrest; possession of marijuana (sch.

VI)(<4oz); possession of controlled substance - schedule IV, V<28g; and fleeing on foot. 3

3 Appellant was charged in an original information filed November 2, 2012, with battery—second degree; two counts of possession of controlled substance - schedule I/II, Not Methamphetamine or Cocaine < 2g; resisting arrest; possession of marijuana (sch. VI)(< 4oz); and fleeing on foot. Appellant was also charged with fleeing in a vehicle; however, the jury acquitted him of that charge.

2 Cite as 2016 Ark. App. 22

A trial was held on August 28, 2014. At the trial’s conclusion, the jury found appellant guilty

on all five charges and sentenced him accordingly. On September 3, 2014, the circuit court

entered an order of jury verdict reflecting the jury’s verdicts of guilt and conforming to its

sentencing recommendations, which were to be served concurrently. This timely appeal

followed.

In compliance with Anders and Rule 4-3(k), counsel ordered the entire record and

found that after a conscientious review of the record, there are no issues of arguable merit

for appeal. Counsel’s brief adequately covered each action that was adverse to appellant

below. After carefully examining the record and the brief presented to us, we find that

counsel has complied with the requirements established by the Arkansas Supreme Court for

no-merit appeals in criminal cases and conclude that the appeal is wholly without merit.

Finally, we note that the sentencing order contains multiple errors. First, the

sentencing order states that appellant was found guilty of fleeing in a vehicle at a jury trial

and sentenced by a jury to zero months in the county jail. It also shows that that same charge

was nolle prossed. However, the order of jury trial verdict states that the jury found appellant

not guilty of fleeing in a vehicle. Additionally, the sentencing order fails to show that

appellant was sentenced at a jury trial by a jury of fleeing on foot. The circuit court is hereby

instructed to correct these errors. Accordingly, we affirm, grant counsel’s motion to be

relieved, and remand with instructions.

Affirmed; motion to be relieved granted; remanded with instructions to correct sentencing order.

GRUBER and HIXSON, JJ., agree. Doralee Chandler, for appellant. No response. 3