Paula Rena Martin v. State of Arkansas

2021 Ark. App. 139

• Court: Court of Appeals of Arkansas
• Decided: March 31, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 139 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION II 2023.06.23 10:38:57 -05'00' No. CR-19-850 2023.001.20174 Opinion Delivered March 31, 2021 PAULA RENA MARTIN APPELLANT APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT V. [NO. 02CR-18-68]

STATE OF ARKANSAS HONORABLE SAM POPE, JUDGE APPELLEE AFFIRMED; MOTION TO BE RELIEVED GRANTED

N. MARK KLAPPENBACH, Judge

This is a no-merit appeal filed on behalf of Paula Rena Martin following her

conviction for six counts of fraudulent use of a debit or credit card, felony theft, second-

degree forgery, and computer fraud. This appeal returns to us after we ordered rebriefing

in Martin v. State, 2020 Ark. App. 463. The deficiencies that required rebriefing have been

remedied.

Martin embezzled more than $160,000 from J Taylor Construction, LLC, while she

was the office manager. Martin entered a guilty plea to the charges but had a jury determine

her sentencing. Martin was sentenced to serve sixty years in prison, ordered to pay a $30,000

fine, and ordered to pay almost $163,000 in restitution. Martin’s counsel filed a no-merit

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

Rule 4-3(k) (2020), along with a motion to be relieved as counsel. Martin was provided a

copy of her counsel’s brief and motion; Martin did not file any pro se points for reversal, and the State did not file a responsive brief. Having considered this appeal under the proper

standards, we affirm and grant her counsel’s motion to be relieved.

A request to withdraw on the ground that an appeal is wholly without merit shall be

accompanied by a brief including an argument section that consists of a list of all rulings

adverse to the defendant made by the circuit court on all objections, motions, and requests

made by either party together with an explanation as to why each adverse ruling is not a

meritorious ground for reversal. Bohanon v. State, 2020 Ark. App. 22, 594 S.W.3d 92. In

considering a no-merit brief, we must determine whether, after a full examination of the

proceedings, there is any nonfrivolous basis for an appeal. Id. The test for filing a no-merit

brief is not whether there is any reversible error but whether an appeal would be wholly

frivolous. See Macleod v. State, 2017 Ark. App. 388.

At the outset, we recognize that as a general rule, there is no direct appeal from a

plea of guilty, Ark. R. App. P.–Crim. 1(a) (2020), but one exception permits appeal from a

challenge to testimony or evidence presented before a jury in a sentencing hearing separate

from the plea itself. See Bushnell v. State, 2020 Ark. App. 566, 614 S.W.3d 476; Starks v.

State, 2019 Ark. App. 182, 574 S.W.3d 700. Martin entered a guilty plea directly to the

circuit court but desired to be sentenced by a jury. The sentencing proceeding was separate

from the guilty plea itself, so we have appellate jurisdiction over the appeal of adverse rulings

therein.

Counsel identifies two adverse rulings during voir dire. In one adverse ruling, defense

counsel remarked to one potential juror that the State was going to request that all counts

run consecutively. The prosecutor objected, contending that this was unfair because he had

2 not made such a statement, and the circuit court ruled in the State’s favor. Counsel correctly

asserts that the extent and scope of voir dire falls within the broad discretion of the circuit

court. See Reid v. State, 2019 Ark. 363, 588 S.W.3d 725. The circuit judge is to permit

questions “as the judge deems reasonable and proper.” Ark. R. Crim. P. 32.2(b) (2020).

There could be no issue of arguable merit to raise on appeal as to this adverse ruling. The

other adverse ruling was the denial of defense counsel’s request to excuse a potential juror

for cause based on his statement that he was inclined to give the maximum sentence allowed.

The circuit court inquired further of this potential juror, determined from his answers that

the juror would consider mitigating evidence, and decided not to excuse him. Counsel

correctly states that prospective jurors who state that they can lay aside prior impressions or

opinions and render a verdict based upon the evidence presented at trial are qualified to

serve as jurors. See Lee v. State, 2017 Ark. 337, 532 S.W.3d 43.

The final adverse ruling was the denial of Martin’s request that all her sentences be

run concurrently. The jury had recommended that all the sentences run consecutively, and

defense counsel asserted that this recommendation was not binding on the circuit court.

The court imposed some consecutive and some concurrent sentences on the charges. The

question of whether sentences should run consecutively or concurrently lies within the sole

province of the circuit court. House v. State, 2020 Ark. App. 452, 611 S.W.3d 197. This

is a discretionary decision for the court to make, and it is evident that the circuit court

exercised its discretion in sentencing Martin, so there could be no meritorious argument

with respect to its sentencing decision.

3 Having reviewed the record and the no-merit brief presented, we conclude that there

has been compliance with Rule 4-3(k) and that the appeal is without merit. Consequently,

counsel’s motion to be relieved is granted, and the judgment is affirmed.

Affirmed; motion to be relieved granted.

GRUBER and MURPHY, JJ., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

One brief only.