Marty Dean Moore v. State of Arkansas
2022 Ark. App. 5
Ark. Ct. App.2022Background
- In March 2018, Marty Dean Moore pled guilty to failure to appear and was sentenced to 36 months’ probation, with signed probation conditions filed March 21, 2018. He was also on probation in Garland County for child-support nonpayment.
- The State petitioned to revoke Moore’s Saline County probation on February 10, 2020, alleging multiple failures to appear, new computer-child-pornography charges arising from a November 2019 arrest, missed office visits, failure to complete a supervision-sanction program (SSP), failure to provide a full address or proof of employment, and delinquent fines/fees.
- At the August 25, 2020 revocation hearing Moore admitted absconding, missing meetings, not paying, and possessing drug paraphernalia; he asked for drug treatment and concurrent probation between counties.
- The circuit court revoked probation, ordered a presentencing report, and ultimately sentenced Moore to 54 months’ imprisonment in the ADC (plus 36 months’ probation), with no jail-time credit; Moore filed pro se motions for 295 days’ credit and for reconsideration based on health and family circumstances.
- Appellant’s counsel filed an Anders/Rule 4-3(k) no-merit brief and a motion to withdraw; Moore received counsel’s filings but filed no pro se points on appeal. The Court of Appeals found the no-merit brief deficient for failing to address certain adverse rulings and ordered rebriefing and denied counsel’s motion to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s Anders/Rule 4-3(k) no-merit brief satisfied procedural requirements | No responsive brief filed by State | Counsel asserted exhaustive review found no arguable issues and sought to withdraw | Court denied withdrawal and ordered rebriefing because the no-merit brief omitted adverse rulings required by Rule 4-3(k) |
| Whether counsel failed to address Moore’s pro se motions for jail-time credit and for reconsideration | No responsive brief filed by State | Moore had filed pro se motions for 295 days’ credit and reconsideration; counsel omitted them from the addendum and brief | Court found omission and ordered counsel to include/explain these adverse rulings in a substituted brief |
| Whether counsel addressed Moore’s request for drug treatment/alternative sentencing (concurrent probation/placement in drug court) | No responsive brief filed by State | Moore requested drug treatment and counsel requested additional probation/placement; counsel’s no-merit brief did not address the court’s denial | Court held denial of requests for alternatives/treatment is an adverse ruling that must be addressed; rebriefing required |
| Whether the 54-month sentence and lack of jail-time credit present appealable sentencing error | No responsive brief filed by State | Counsel argued 54 months is within the legal range; Moore argued sentence excessive given age, health, employment, and that he should receive jail credit | Court required counsel to address the adverse sentencing-related motions and explain why they present no meritorious appellate issue |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (establishes procedures for counsel to withdraw via no-merit brief in criminal appeals)
- Pettigrew v. State, 2019 Ark. App. 336 (no-merit brief that fails to address adverse rulings does not satisfy Rule 4-3(k) and requires rebriefing)
- Jester v. State, 2018 Ark. App. 360 (same: omissions of adverse rulings in no-merit brief warrant rebriefing)
- Liddell v. State, 2015 Ark. App. 172 (denial of requests for probation/alternative treatment constitutes an adverse ruling that must be addressed on appeal)
- Swarthout v. State, 2012 Ark. App. 46 (denial of treatment-court relief is an adverse ruling to be raised/addressed)
- Marshall v. State, 2021 Ark. App. 283 (reiterates that denials of requests for probation extension, transfer to drug/veterans court, or deferred sentencing are adverse rulings required to be in the no-merit brief)