Kimmons v. State
2014 Ark. App. 713
Ark. Ct. App.2014Background
- In June 2010, Moses A. Kimmons pleaded guilty to being a felon in possession of a firearm and received three years’ DOC with three years’ suspended imposition of sentence subject to written conditions.
- The State filed a petition to revoke based on alleged violations, including possession of a Schedule VI controlled substance (marijuana).
- At the September 2013 revocation hearing, a parole officer testified that Kimmons had pleaded guilty in April 2013 to misdemeanor possession of marijuana; the circuit court found Kimmons had admitted the violation and revoked his suspended sentence, imposing 36 months’ imprisonment.
- Counsel filed a Rule 4-3 no-merit appeal and moved to be relieved; the no-merit brief discussed the evidence of violation but failed to list all adverse circuit-court rulings as required by Rule 4-3(k)(1).
- The clerk’s mailing of the no-merit packet to Kimmons’ last known address was returned as non-existent; counsel had no further contact information and Kimmons did not file pro se points.
- The Court of Appeals found briefing deficiencies (omitted adverse rulings and addendum pagination/contents errors), ordered rebriefing, and denied counsel’s motion to be relieved (for now).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether revocation was supported by proof of marijuana possession | State: Parole officer testimony and Kimmons’ guilty plea to misdemeanor possession show violation of condition prohibiting Schedule VI substances | Kimmons: (no pro se points filed; counsel’s brief conceded the violation) | Court accepted that Kimmons admitted the violation and revocation was supported by the record |
| Whether counsel’s no-merit brief complied with Rule 4-3(k)(1) | State: N/A (issue concerns adequacy of defense counsel’s appellate filing) | Kimmons/counsel: filed no-merit brief but omitted listing/explaining all adverse rulings and had addendum defects | Court held brief was deficient under Rule 4-3(k)(1); ordered substituted brief, abstract, and addendum within 15 days |
| Whether counsel’s motion to be relieved should be granted given inability to contact client | Counsel: requested withdrawal and no-merit procedure because he could not locate Kimmons (mail returned) | State: N/A | Court denied the motion at this time and required corrected briefing; if no-merit brief is refiled, clerk will resend materials to appellant, who will again have opportunity to file pro se points |
Key Cases Cited
- Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001) (appellate court cannot affirm without discussing why each adverse trial-court ruling is not meritorious)