Whitney v. State

2015 Ark. App. 8

• Court: Court of Appeals of Arkansas
• Decided: January 14, 2015
• Docket: CR-14-524
• Status: Published

Opinion

Cite as 2015 Ark. App. 8

ARKANSAS COURT OF APPEALS DIVISION III No. CR-14-524

DERRICK A. WHITNEY Opinion Delivered January 14, 2015 APPELLANT APPEAL FROM THE CRITTENDEN V. COUNTY CIRCUIT COURT [NO. CR-2009-734]

STATE OF ARKANSAS HONORABLE RALPH WILSON, JR., APPELLEE JUDGE

AFFIRMED; MOTION GRANTED

RITA W. GRUBER, Judge

In May 2010, Derrick A. Whitney pleaded guilty to selling or delivering cocaine and

received eight years’ probation, subject to written conditions. In September 2012, the State

alleged in a petition to revoke that Whitney violated conditions of probation that included

a requirement to pay fines and costs. At the conclusion of the revocation hearing, the circuit

court found that Whitney had made no payments and had inexcusably failed to comply with

the condition to pay fines and costs. The court revoked Whitney’s probation and sentenced

him to twenty-four months’ confinement in the Arkansas Department of Community

Correction1 and thirty-six months’ suspended imposition of sentence.

Pursuant to Rule 4-3(k)(1) of the Rules of the Arkansas Supreme Court and Court of

Appeals (2014), Whitney’s counsel has filed a no-merit brief and a motion to withdraw on

1 Counsel incorrectly states in his brief that Whitney was to serve twenty-four months in the Arkansas Department of Correction. Cite as 2015 Ark. App. 8

the ground that an appeal in this matter would be wholly without merit. Whitney was

notified of his right to file pro se points for reversal and has done so; the State has responded

to those points.

Counsel informs us that the revocation itself was the only ruling adverse to Whitney.

The argument section of counsel’s no-merit brief fairly summarizes testimony by the collector

of fines, documentary evidence, and testimony by Whitney regarding his failure to pay fines

and costs. The State correctly argues in its brief that Whitney’s points, which essentially ask

that he be allowed to return home to look after his elderly mother, amount to a plea for

clemency that must be addressed to the executive branch rather than to this court. E.g.,

Parker v. State, 302 Ark. 509, 512, 790 S.W.2d 894, 895 (1990); Nguyen v. State, 2010 Ark.

App. 25, at 2.

From our review of the record and the briefs presented to us, we find compliance with

Rule 4-3(k)(1), and we hold that there is no merit to this appeal. Accordingly, counsel’s

motion to withdraw is granted and the order of revocation is affirmed.

Affirmed; motion granted.

GLOVER and WHITEAKER, JJ., agree.

C. Brian Williams, for appellant.

Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.