Preston Johnson v. State of Arkansas

2021 Ark. App. 274

• Court: Court of Appeals of Arkansas
• Decided: June 2, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 274 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION II integrity of this document No. CR-20-452 2023.06.28 15:03:05 -05'00' 2023.001.20174 Opinion Delivered June 2, 2021 PRESTON JOHNSON APPELLANT APPEAL FROM THE SALINE V. COUNTY CIRCUIT COURT [NO. 63CR-17-861] STATE OF ARKANSAS APPELLEE HONORABLE GRISHAM PHILLIPS, JUDGE

MOTION TO WITHDRAW DENIED; REBRIEFING ORDERED

BRANDON J. HARRISON, Chief Judge

The Saline County Circuit Court found that Preston Johnson violated the terms and

conditions of his suspended imposition of sentence and sentenced him to three years in

prison. Johnson’s counsel has filed a brief stating that an appeal would be wholly frivolous

and asks for permission to withdraw as counsel. Johnson did not file pro se points.

We order rebriefing and deny the motion to withdraw. Arkansas Supreme Court

Rule 4-3(k)(1) (2020) requires counsel to list all adverse rulings. Full compliance with the

rule is required. Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877. Here, Johnson’s counsel

missed discussing an arguable adverse ruling. At the conclusion of the revocation hearing,

defense counsel asked the circuit court whether Johnson would get credit for the two-year

sentence that he had served already. The court replied, “I’m giving him credit for 24

months because that was his initial ADC sentence, followed by 36 months SIS. I don’t think I have to give him any jail credit other than what he’s spent in Saline County Jail.” (Emphasis

added.)

Additionally, Rule 4-3(k)(1) requires counsel to file a brief containing an “argument

section . . . with an explanation as to why each adverse ruling is not a meritorious ground

for reversal.” To protect the appellant and the judicial process, both counsel and this court

perform a full examination of the proceedings to determine if an appeal would be wholly

frivolous. Anders v. California, 386 U.S. 738 (1967). In addition to overlooking an arguable

adverse ruling, the no-merit brief does not adequately explain the court’s decision to revoke

Johnson’s SIS. By this we mean that counsel has failed to address all potential grounds for

reversal and explain why an appeal would be wholly frivolous.

First, counsel argues that there is no merit to challenging Johnson’s failure to report,

which he characterizes as an “absconding” violation. But Johnson’s SIS conditions did not

require him to report to a supervising officer. Second, counsel argues that the circuit court

had the power to revoke Johnson’s SIS because he failed to attend a drug-rehabilitation

program. Yet the State’s petition did not plead any revocation ground related to a drug-

rehabilitation program. Third, counsel does not explain why Johnson’s positive drug tests

could or could not support the court’s decision to revoke. An explanation on this point is

required because the State alleged in its petition that Johnson violated the terms of his

suspended sentence by using controlled substances. Fourth, the brief does not address the

State’s allegation that Johnson violated the terms of his SIS when he failed to notify the

Prosecuting Attorney’s Office within twenty-four hours of his arrest.

2 Counsel’s jurisdictional statement and statement of the case do not fill the gap. The

jurisdictional statement uses the wrong name for the appellant. Counsel states the appeal is

for “Jeremy Tutt” instead of “Preston Johnson.” And counsel (twice) states that Johnson’s

probation was revoked. Johnson was never placed on probation. Moreover, in his

statement of the case, counsel incorrectly states that Johnson was sentenced to ninety

months’ imprisonment. He was sentenced to thirty-six months’ imprisonment. And

although the no-merit brief asserts that Johnson’s sentence was within the statutory limits

for possession of firearms by a certain person, it fails to identify the statutory range for the

crime or the standard of review for an appeal.

This court expects more from attorneys who file briefs on appeal, especially in

criminal cases when a defendant’s freedom and personal reputation are most certainly on the

line. We caution that this is not necessarily an exhaustive list of deficiencies. Counsel

should carefully examine the record and review the rules before filing a substituted brief

within fifteen days of this opinion. If a no-merit brief is filed, counsel’s motion and brief

will be forwarded by this court’s clerk to Johnson so that he can raise any points he chooses.

The Attorney General’s Office will also be given the opportunity to file a responsive brief

for the State if it so chooses.

Motion to withdraw denied; rebriefing ordered.

VIRDEN and KLAPPENBACH, JJ., agree.

Jones Law Firm, by: F. Parker Jones III and Vicram Rajgiri, for appellant.

One brief only.