Wilson v. State

2017 Ark. App. 64

• Court: Court of Appeals of Arkansas
• Decided: February 1, 2017
• Docket: CR-15-796
• Status: Published

Opinion

Cite as 2017 Ark. App. 64

ARKANSAS COURT OF APPEALS DIVISION II No. CR-15-796

Opinion Delivered February 1, 2017 DANNY J. WILSON APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION V. [NO. 60CR-10-2155]

HONORABLE BARRY SIMS, JUDGE STATE OF ARKANSAS APPELLEE REVERSED AND REMANDED

PHILLIP T. WHITEAKER, Judge

Danny Wilson appeals from the Pulaski County Circuit Court’s 2015 order revoking

his probation. This is the second time this appeal has been before us. Counsel initially filed

a motion to withdraw and a no-merit-brief appeal pursuant to Anders v. California, 386 U.S.

738 (1967), and Ark. Sup. Ct. R. 4-3(k)(1) (2015). However, in an opinion dated June 22,

2016, we held that an appeal of his revocation would not be wholly frivolous and directed

counsel to submit an adversarial brief on whether the trial court had imposed an illegal

sentence. Wilson v. State, 2016 Ark. App. 342. Counsel has now submitted an adversarial brief,

arguing that the trial court did in fact impose an illegal sentence, and the State concedes error.

For the reasons set forth below, we agree.

On December 5, 2010, Wilson entered a guilty plea to possession of cocaine with

intent to deliver (a Class Y felony), tampering with physical evidence (a Class D felony), theft

of property (a Class A misdemeanor), and resisting arrest (a Class A misdemeanor). The court Cite as 2017 Ark. App. 64

sentenced him to six years’ supervised probation on the felony counts and twelve months’

supervised probation on the misdemeanor counts.

Wilson has had his probation revoked two separate times. Wilson’s probation was

revoked for the first time in March 2012 after he pled guilty to the revocation. The court

revoked Wilson’s probation on the felony convictions and sentenced him to a new term of

six years’ supervised probation. The court did not revoke Wilson’s probation on the

misdemeanor conviction for resisting arrest but did revoke it on the misdemeanor theft-of-

property charge, sentencing him to six years of probation.1

Subsequently, the State sought to revoke Wilson’s probation on all original convictions

for a second time.2 The matter proceeded to a contested revocation hearing, after which the

court found Wilson guilty and revoked his probation. The court entered a sentencing order

on June 17, 2015, sentencing Wilson to five years’ imprisonment and five years’ suspended

imposition of sentence on both his possession-with-intent-to-deliver and his tampering-with-

physical-evidence convictions, and to twelve months’ probation on his theft-of-property and

resisting-arrest convictions. We find that the court imposed illegal sentences on the

1 We note that the petition to revoke was filed and the eventual revocation of Wilson’s probation on the misdemeanor conviction occurred after the expiration of his probation for this offense. Likewise, we note that the six years’ probation imposed on his misdemeanor conviction exceeded the statutory range. However, Wilson did not appeal the March 2012 revocation. 2 The State filed an amended petition for revocation on June 28, 2013, a petition for revocation on October 4, 2014, and an amended petition for revocation on January 2, 2015.

2 Cite as 2017 Ark. App. 64

tampering-with-physical-evidence conviction, as well as the theft-of-property and resisting-

arrest convictions.3

Upon revoking a sentence of probation, the court may impose any sentence on the

defendant that might have been imposed originally for the offense for which he was found

guilty. Ark. Code Ann. § 16-93-308 (Supp. 2015). Arkansas’s sentencing statute provides as

follows:

(a) A defendant convicted of a felony shall receive a determinate sentence according to the following limitations: ...

(5) For a Class D felony, the sentence shall not exceed six (6) years.

Ark. Code Ann. § 5-4-401 (Repl. 2013).

Here, the court revoked Wilson’s probation on the tampering-with-physical-evidence

conviction, a Class D felony. The court imposed a sentence of five years’ imprisonment and

five years’ suspended imposition of sentence, when the maximum sentence allowable is six

years. Because the court’s imposition of sentence exceeded the maximum allowable sentence

available for Wilson’s Class D felony conviction, it constitutes an illegal sentence.

Additionally, the circuit court improperly revoked Wilson’s probation on the

misdemeanor theft-of-property and resisting-arrest offenses because the probations on those

offenses had already expired. A circuit court lacks the authority to revoke a defendant’s

3 The trial court’s sentence of five years’ imprisonment and five years suspended imposition of sentence on the possession charge falls within the statutory guidelines for a Class Y felony and is not an illegal sentence.

3 Cite as 2017 Ark. App. 64

probation and impose sentence after the defendant’s period of probation has expired. Cross

v. State, 2009 Ark. 597, 357 S.W.3d 895.

Accordingly, we reverse and remand to the trial court for further proceedings to

correct, in a manner consistent with this opinion, the illegal sentences previously imposed.

Reversed and remanded.

HARRISON and KLAPPENBACH, JJ., agree.

William R. Simpson, Jr., Pub. Def., and Pat Aydelott, Deputy Pub. Def., by: Margaret Eagan, Deputy Pub. Def., for appellant.

Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.