Norton v. State
553 S.W.3d 765
Ark. Ct. App.2018Background
- Norton pled guilty in 2016 to 18 counts of breaking or entering (Ark. Code Ann. §5-39-202) and 2 counts of theft (Ark. Code Ann. §5-36-103(b)) and received an aggregate probationary disposition totaling 120 months.
- In Sept. 2017 the State petitioned to revoke probation, alleging Norton sold methamphetamine (two Class D felony delivery charges), failed to report to his probation officer, and failed to pay fines/costs.
- At the revocation bench hearing the detective and probation officer testified to the controlled buys and supervision violations; Norton denied the drug sales and claimed excusable noncompliance on other matters.
- The circuit court revoked probation, found Norton violated terms by failing to report, failing to pay, and committing two drug felonies, and imposed prison terms: maximum six-year terms on fifteen breaking-or-entering counts, ten years on the theft count, and a six-year suspended imposition of sentence (SIS) on the remaining counts.
- The court ordered counts 1–16 to run consecutively (resulting in 100 years), counts 17–20 to run concurrent with each other but consecutive to counts 1–16, and the SIS was set to begin after completion of the other terms; amended orders reflected these placements.
- Norton's counsel filed a no-merit (Anders) brief and moved to withdraw; the court of appeals found a potentially nonfrivolous issue (possible illegal sentence arising from an SIS running consecutive to other imprisonment) and denied counsel’s motion, ordering rebriefing in adversary form.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probation revocation (sufficiency of evidence) | State: testimony tied Norton to two controlled meth buys and probation violations justified revocation | Norton: denied selling meth and claimed other violations excusable | Court upheld revocation on record findings (revocation occurred) |
| Legality of sentence (SIS consecutive to other terms) | Norton (on appeal): sentence appears illegal because SIS was ordered to run consecutive to other imprisonment, potentially violating Ark. Code §5-4-307 | State: argued sentence as imposed by circuit court; counsel did not address sentencing issue in no-merit brief | Court found a nonfrivolous argument that the sentence may be illegal and ordered rebriefing; counsel’s Anders motion denied |
| Counsel’s Anders no-merit brief and motion to withdraw | Counsel: no meritorious issues for appeal; moved to withdraw under Anders/Rule 4-3(k) | Appellate court/State: court must examine record for nonfrivolous issues; sentencing legality can be raised at any time | Court held Anders brief was inadequate for failing to address apparent illegal sentence; rebriefing in adversary form ordered |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (framework for court review when counsel files a no-merit brief and seeks to withdraw)
- State v. Webb, 373 Ark. 65 (2008) (illegal-sentence issues are not waivable and may be raised for the first time on appeal)
- Reyes v. State, 454 S.W.3d 281 (Ark. App.) (reiterating that an illegal-sentence claim may be raised at any time)