Jerry Wayne Shinn v. State of Arkansas

2022 Ark. App. 10

• Court: Court of Appeals of Arkansas
• Decided: January 12, 2022
• Status: Published

Opinion

Elizabeth Perry I attest to the accuracy and integrity of this document 2023.08.09 Cite as 2022 Ark. App. 10 12:03:17 ARKANSAS COURT OF APPEALS -05'00' DIVISION II 2023.003.2024 No. CR-20-544 4 Opinion Delivered January 12, 2022 JERRY WAYNE SHINN APPELLANT APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-16-233] V. HONORABLE DAN RITCHEY, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; MOTION TO WITHDRAW GRANTED

PHILLIP T. WHITEAKER, Judge

Jerry Shinn appeals a Crittenden County Circuit Court order revoking his probation

and sentencing him to a total of ten years in the Arkansas Department of Correction

followed by five years’ suspended imposition of sentence. Shinn’s counsel filed a motion to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme

Court Rule 4-2(k), contending that there are no issues of arguable merit to raise on appeal.

In addition, the clerk of our court notified Shinn of counsel’s motion and brief and advised

him of his right to file pro se points. Shinn submitted pro se points to which the State has

responded. We previously ordered rebriefing for counsel to address one adverse ruling that

was omitted from his original brief. Shinn v. State, 2021 Ark. App. 313 (Shinn I). Counsel

has now submitted a brief that complies with our rules, and we affirm the revocation of

Shinn’s probation and grant counsel’s motion to withdraw. We previously set out the facts of this case in Shinn I and therefore only briefly

summarize them here. In 2016 and 2018, Shinn pled guilty in three separate criminal dockets

and was sentenced to probation in each of them. In each case, Shinn was given terms and

conditions of probation that required him to pay all fines, court costs, and fees as ordered

by the court; live a law-abiding life and not violate any state, federal, or municipal law; not

possess firearms; submit to drug testing; and report to his probation officer as directed. The

State filed a petition to revoke Shinn’s probation in all three cases in 2020, alleging that

Shinn had violated the conditions of his probation by failing to pay his fines, fees, and costs

and by committing new criminal offenses. 1 After a hearing, the circuit court revoked Shinn’s

probation in all three cases and sentenced him to the Arkansas Department of Correction.

Shinn timely appealed.

On appeal, Shinn’s appellate counsel has filed a no-merit brief under Anders, 386

U.S. 738, and Ark. Sup. Ct. R. 4-3(k) (2020), along with a motion to withdraw on the

ground that this appeal is wholly without merit. In a no-merit appeal, counsel is required

to list all rulings adverse to appellant and to explain why each adverse ruling does not present

a meritorious ground for reversal. Anders, supra; Ark. Sup. Ct. R. 4-3(k)(1).

Counsel has submitted a brief that addresses the deficiency we identified in Shinn I.

Moreover, from our review of the record and amended brief, we conclude that the abstract

and addendum include all objections and motions decided adversely to Shinn, and counsel

1 The State alleged that Shinn had committed new offenses of possession of a controlled substance, possession of a firearm by certain persons, simultaneous possession of drugs and a firearm, and fleeing.

2 adequately explains in the argument portion of his brief why there is nothing in the record

that would arguably support an appeal. 2

In addition to counsel’s brief, however, Shinn has submitted pro se points for this

court’s review. In his points, Shinn argues the following three issues:

(1) Reversal of Revocation: The aforementioned case imposition of sentence improper due to null process and dismissal of cases in part that would nullify revocation.

(2) Excessive Sentence: Drug court, rehabilitation over incarceration, nonviolent offender. Due to overcrowding staff shortages at ADC, a reversal would be in interest of both State and appellant.

(3) Ineffective Counsel: Appellant suggest there may be a conflict of interest due to relationship of counsel and prosecution. Thus denied due process as provided by law and statute.

The State responds that this court should not address Shinn’s pro se arguments

because they were never presented to the circuit court and because Shinn fails to cite

authority or develop his arguments in any meaningful way. Our review of the record

indicates that none of these arguments were presented to the circuit court and are therefore

not preserved for appeal. See Dyas v. State, 2020 Ark. App. 538, at 7 (holding that an

argument raised for the first time by a pro se appellant in an Anders brief is not preserved for

appeal). Accordingly, we do not address Shinn’s pro se arguments.

When filing a no-merit brief, the test for counsel is not whether there is any reversible

error but whether an appeal would be wholly frivolous. See Honey v. State, 2020 Ark. App.

496; Wright v. State, 2015 Ark. App. 300. Pursuant to Anders, however, we are required to

2 Shinn admitted during his testimony that he had been in possession of methamphetamine and that he had committed the offense of fleeing.

3 fully examine all the proceedings to determine whether the case is wholly frivolous. Williams

v. State, 2021 Ark. App. 164. From our review of the record and the brief presented to us,

we find compliance with Rule 4-3(k) and conclude that there is no merit to an appeal.

Affirmed; motion to withdraw granted.

GLADWIN and HIXSON, JJ., agree.

S. Butler Bernard, Jr., for appellant.

One brief only.