Full Opinion

Cite as 2026 Ark. App. 444 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-25-461 JODY NIEDERBERGER Opinion Delivered September 30, 2026 APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NOS. 04CR-09-1577A; 04CR-17-811; 04CR-19-2623; 04CR-19-2624] STATE OF ARKANSAS APPELLEE HONORABLE ROBIN F. GREEN, JUDGE REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED ROBERT J. GLADWIN, Judge This no-merit appeal is before us for the second time. In Niederberger v. State, 2026 Ark. App. 317, 739 S.W.3d 411, we ordered rebriefing, holding that the record did not support Niederberger’s counsel’s assertion that he entered a guilty plea to the allegations in the State’s revocation petition. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(b)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals, Niederberger’s attorney has filed a second no-merit brief and a motion to withdraw on the basis that this appeal is wholly without merit. The clerk of this court mailed a copy of counsel’s motion and brief to Niederberger informing him of his right to file pro se points for reversal, but he has not filed any points. Because counsel has failed to address all the related sentences in his brief, we again order rebriefing and deny counsel’s motion to withdraw. Niederberger was charged in case No. 04CR-09-1577A with aggravated robbery, residential burglary, theft of property, and fraudulent use of a credit or debit card by felony information filed on November 13, 2009. He pleaded guilty as charged in exchange for ten years of imprisonment followed by a ten-year suspended imposition of sentence (“SIS”). The sentencing order was filed on May 26, 2010. Niederberger was charged in case No. 04CR-17-811 with possession of a controlled substance and possession of drug paraphernalia by felony information filed on June 8, 2017, and with an additional count of possession of a controlled substance by amended felony information filed on September 15, 2017. He pleaded guilty as charged in exchange for ten years of imprisonment followed by a twenty-year SIS. The sentencing order was filed on December 19, 2017. Niederberger was charged in case No. 04CR-19-2623 with possession of drug paraphernalia by felony information filed on November 27, 2019. He pleaded guilty as charged and was sentenced to a six-year SIS. The sentencing order was filed on August 25, 2020. Niederberger was charged in case No. 04CR-19-2624 with simultaneous possession of drugs and firearms; three counts of possession of firearms by certain persons; two counts of possession of a controlled substance with purpose to deliver; and criminal possession of body armor by felony information filed on November 26, 2019. He pleaded guilty as charged 2 and was sentenced to an aggregate term of fifteen years of imprisonment to be followed by a twenty-year SIS. The sentencing order was filed on August 25, 2020. On October 23, 2024, the State filed a petition to revoke Niederberger’s SIS in all four cases based on allegations that he committed new offenses on January 30, 2024. At the February 3, 2025 hearing on the petition the circuit court stated: All right. There are two allegations on the Petitions to Revoke. They are that on or about January 30, 2024, in Benton County, Arkansas, the Defendant committed the offense of Possession of Controlled Substance, D Felony. On that same date, allegation number two, the Defendant committed the offense of Fleeing by Vehicle, D Felony. Mr. Niederberger, do you admit or deny that those two allegations are true? Niederberger admitted that the alleged violations were true, and the circuit court confirmed his admission of the two violations, specifically stating, “All right. I am finding you guilty of the same.” The circuit court sentenced him to an aggregate term of fifty years of imprisonment. In a docket entry dated February 3, 2025, the circuit court indicated by circling words and listing numbers that Niederberger “admits” counts 1 and 2, and for “Findings,” Niederberger is guilty on counts 1 and 2. The sentencing orders were filed on February 7, 2025. Niederberger filed timely notices of appeal in all four cases on March 2, 2025, and the initial no-merit appeal followed. On May 20, 2026, this court denied appellate counsel’s motion to withdraw and ordered rebriefing. See Niederberger, supra. In his second no-merit brief, counsel submits that there are no adverse rulings in this case to be discussed other than (1) the revocation of Niederberger’s SIS in the four cases and 3 (2) the circuit court’s ordering a sentence of thirty-six months in a community correction center with a twelve-month SIS. Regarding the sufficiency of the evidence, we noted in our previous opinion that counsel stated in his initial brief that Niederberger pleaded true to the revocations and then asserted that this case involved guilty pleas and that, except as provided by Arkansas Rule of Criminal Procedure 24.3(b) (2025), there shall be no appeal from a plea of guilty pursuant to Arkansas Rule of Appellate Procedure–Criminal 1(a) (2025). The problem in counsel’s initial brief was that it claimed the sentencing order states that Niederberger was found guilty and sentenced by the circuit court. At the revocation hearing, the circuit court noted that counsel had previously discussed the issues before the hearing, but there is nothing in the record documenting any plea agreement related to the revocation petition. The circuit court read the State’s allegations and asked whether Niederberger admitted or denied them, and Niederberger admitted that the allegations were true. At the conclusion of the hearing, the circuit court stated, “[Niederberger] admitted allegations one and two were true and he’s found guilty of the same.” We pointed out that, similar to the facts in Hernandez v. State, 2026 Ark. App. 34, 730 S.W.3d 45, and Schreibvogel v. State, 2022 Ark. App. 307, the record before us did not support Niederberger’s counsel’s assertion that he pleaded guilty to the allegations in the State’s revocation petition, although Niederberger did similarly admit at his revocation hearing that the allegations against him were true. 4 In his second brief, Niederberger’s counsel states that the circuit court revoked Niederberger’s SIS after he admitted committing multiple violations alleged in the revocation petition. See Niederberger, 2026 Ark. App. 317, at 3–5. As such, he maintains that there was sufficient evidence for the circuit court to revoke his SIS because a defendant’s admission to violating a term or condition of his SIS, standing alone, is sufficient to sustain a revocation. See Maxwell v. State, 2009 Ark. App. 533, 336 S.W.3d 881. We agree that there is no basis for a meritorious argument for reversal of the circuit court’s revocation decision based on this issue. The only other adverse ruling addressed by counsel was that the circuit court imposed an aggregate term of fifty years of imprisonment for the SIS revocation. Counsel asserts that these sentences were lawfully imposed. In McKee v. State, 2024 Ark. App. 538, 700 S.W.3d 509, we noted: Sentencing in Arkansas is entirely a matter of statute, and no sentence shall be imposed other than as prescribed by statute. A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. When a court revokes a defendant’s probation, the court may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty. Ark. Code Ann. § 16-93-308(g)(1)(A) (Supp. 2023). 2024 Ark. App. 538, at 6, 700 S.W.3d at 514 (internal citations omitted). Counsel notes that Niederberger’s twenty-year sentence for simultaneous possession was within the statutory range for Class Y felonies (between ten and forty years, or life imprisonment), see Ark. Code Ann. § 5-4-401(a)(1) (Repl. 2024), and his sentences of ten 5 years for possession of a firearm by certain persons were within the statutory range for Class B felonies (between five and twenty years) see Ark. Code Ann. § 5-4-401(a)(3). Under section 5-4-403(a) (Repl. 2006), multiple sentences of imprisonment imposed on a defendant convicted of more than one offense shall run concurrently unless the court orders the sentences to run consecutively upon recommendation of the jury or the court’s own motion. The decision to impose consecutive or concurrent sentences lies solely within the province of the circuit court, and the appellant assumes a heavy burden of showing that the circuit court failed to give due consideration in the exercise of that discretion. Golden v. State, 2024 Ark. App. 371. Further, a circuit court is permitted to impose consecutive terms of imprisonment in a revocation, even when the original sentences were concurrent. See id. The circuit court noted that it imposed consecutive sentences because Niederberger fled from police despite being on numerous suspended sentences and that doing so put officers’ and other citizens’ lives in jeopardy. Counsel maintains that imposing consecutive terms of imprisonment was a sufficient exercise of the circuit court’s discretion. We must once again order rebriefing and deny counsel’s motion to withdraw because counsel has failed to provide the specifics on all the underlying sentences and how the overlap of some of them works out in the eventual sentence imposed at the revocation. We leave a more thorough examination of the legality of Niederberger’s sentence for counsel, whose duty it is to review the record and examine all the proceedings for adverse rulings, including an examination of the sentence at issue to determine whether it was illegal in any respect. See Mouse v. State, 2025 Ark. App. 12 (instructing counsel to discuss legality of 6 sentence as habitual offender in no-merit brief after settling and supplementing the record); Mitchell v. State, 2023 Ark. App. 322 (instructing counsel to discuss sentence imposed by jury in rebriefing order of no-merit appeal). As noted in Hernandez v. State, 2026 Ark. App. 315, a discussion of Niederberger’s sentence might include such topics, along with citations to authority, as the classification of the underlying offenses involved; the range of available punishment for that classification; whether consecutive sentences were appropriate upon revocation; and what showing is required to overturn a sentence. This list is not meant to be inclusive, and we encourage counsel to review Anders, supra, and Rule 4-3(b) before filing another no-merit brief. Counsel should file a substituted brief that complies with the rules within thirty days from the date of this decision. We express no opinion on whether the new brief should be filed pursuant to Rule 4-3(b) or whether it should be on meritorious grounds. If a no-merit brief is filed, counsel’s motion and brief will be forwarded by our clerk to Niederberger so that, within thirty days, he again will have an opportunity to raise any points he chooses in accordance with Rule 4-3(b)(2). The State will likewise be given an opportunity to file a reply brief if Niederberger files pro se points for reversal. Ark. Sup. Ct. R. 4-3(b)(3). We will continue to order rebriefing until compliance with Anders and Rule 4-3(b)(1) is achieved. See, e.g., Davis v. State, 2026 Ark. App. 116 (granting a motion to withdraw after ordering rebriefing three times, including one rebriefing order due to defense counsel’s failure to comply with our directive to discuss the discrepancy between a bench ruling and the sentencing order). 7 Rebriefing ordered; motion to withdraw denied. THYER and MURPHY, JJ., agree. Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant. One brief only. 8