McJoy v. State

2016 Ark. App. 337

• Court: Court of Appeals of Arkansas
• Decided: June 22, 2016
• Docket: CR-15-795
• Status: Published

Opinion

Cite as 2016 Ark. App. 337

ARKANSAS COURT OF APPEALS DIVISION IV No. CR-15-795

Opinion Delivered June 22, 2016

I(EVIN LOUIS M.JOY APPEAL FROM THE FAULKNER APPELLANT COUNTY CIRCUIT COURT [NO. CR-2006-261 0]

HONORABLE CHARLES E. CLAWSON, JR.,JUDGE

STATE OF ARKANSAS APPEAL DISMISSED; MOTION TO APPELLEE WITHDRAW GRANTED

M. MICHAEL KINARD, Judge

The appellant, Kevin Louis McJoy, pled guilry in May 2007 to possession of a

controlled substance (cocaine) and possession of a controlled substance (marijuana) with

intent to deliver, both Class "C" felonies. He was placed on probation for a period of five

years subject to a number of conditions. In February 2077, a petition to revoke appellant's

probation was filed. After warrants for his arest were issued in 2011 and 2072 and after

multiple failures to appear, appellant was finally arrested in August 2073. After a revocation

hearing held the following month, appellant was found to have violated the terms of his

probation, and his probation was extended by an additional rwo years on the same conditions

attached to the original order.r In February 201,4, the prosecuting attorney filed another

lOrdinarily, a trial court can revoke a probation or suspension only prior to the expiration of the period of suspension or probation. While the September 201.3 order was entered after the expiration of appellant's original five-year probationary period, Arkansas Cite as 2016 Ark. App. 337

petition to revoke appellant's probation, and another arrest warrant was issued. Appellant

was finally arrested inJune 201,5. At a hearing held promptly thereafter, appellant entered

a negotiated plea ofguilry to the violations alleged in the petition in exchange for concurrent

three-year sentences for his original drug offenses. An order to that effect was entered on

June 22,2075, and appellant filed a notice of appeal from that order.

Pursuant to Anders u. California, 386 U.S. 738 (1967), and Arkansas Supreme Court

Rule 4-3(k), appellant's attorney has filed a motion to be relieved as counsel, stating that

there is no merit to the appeal. The motion is accompanied by an abstract and addendum

of the proceedings below and a brief in which counsel asserts that there is nothing in the

record that would support an appeal. The clerk of this couft served appellant with a copy

of his counsel's brief and notified him of his right to file a pro se statement of points for

reversal within thirry days. Appellant has filed no such statement. 'We must dismiss the appeal. As stated, appellant filed this appeal following his guilry

plea to the petition to revoke his probation. As a general rule, one may not appeal from an

order entered pursuant to a guilty plea. Burgess u. State,2076 Ark. 775. The rule applies

equally to pleas entered to revocations petitions. See, e.g., McCarty u. State,2074 Ark. App.

404; Cummins u. State,2013 Ark. App. 657. Essentially, there are three exceptions to the

general rule: (1) where one enters a conditional guilry plea and retains the right to argue one

of the specific issues in Ark. R. Crim. P. 2a3p); (2) when there is a challenge to evidence

Code Annotated section 16-93-308(0 (S"pp. 201,5) specifically allows a court to continue to exercise jurisdiction over a probationer subsequent to the expiration of the probation where a warrant is issued for the defendant's arrest prior to the expiration. Cite as 2016 Ark. App. 337

presented in a sentencing hearing separate from the plea itself; and (3) where the assignment

of error is from a sentence or sentencing procedure that was not an integral part of the

acceptance of the plea. Butrgess, supra. 'W'e find nothing in this record that would bring

appellant's case within any of the exceptions to the general rule ofnonappealabliry ofa guilry

plea. Therefore, we dismiss the appeal and grant counsel's motion to withdraw.

Appeal dismissed; motion to withdraw granted.

'WHITEAKER and HlxsoN, JJ., agree.

Joseph C. Self, for appellant. No response.