Thompson v. State ( 2017 )

Cite as 2017 Ark. App. 391
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-16-1091
Opinion Delivered June 21, 2017
KEITHRICK THOMPSON
APPELLANT APPEAL FROM THE MILLER
COUNTY CIRCUIT COURT
V. [NOS. 46CR-13-362 & 46CR-14-186]
STATE OF ARKANSAS HONORABLE BRENT HALTOM,
APPELLEE JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
N. MARK KLAPPENBACH, Judge
Keithrick Thompson appeals from two orders of the Miller County Circuit Court
revoking his probation in two cases and sentencing him to a term of imprisonment and
suspended imposition of sentence. Pursuant to Anders v. California, 386 U.S. 738 (1967), and
Arkansas Supreme Court Rule 4-3(k), appellant’s counsel has filed a no-merit brief and a
motion to withdraw as counsel, asserting that there is no nonfrivolous argument to be made
in support of an appeal. Appellant has filed pro se points for reversal, and the State has filed
a responsive brief.
In July 2015, appellant pleaded guilty in separate cases to attempted residential
burglary and theft of property. He was sentenced to five years of probation in each case.
The State filed petitions to revoke in March 2016, alleging that appellant had committed
several violations of the conditions of his probation. After a revocation hearing in August
Cite as 2017 Ark. App. 391
2016, the trial court revoked appellant’s probation in both cases, specifically noting
appellant’s admission that he had failed to report as directed.
As counsel notes, the sole adverse ruling at the hearing was the decision to revoke.
Pursuant to Arkansas Code Annotated section 16-93-308(d) (Repl. 2016), the burden on the
State in a revocation proceeding is to prove by a preponderance of the evidence that the
defendant inexcusably failed to comply with at least one condition of the probation. We will
not reverse unless the trial court’s findings are clearly against the preponderance of the
evidence, and we defer to the credibility determinations made by the trial court. Peel v. State,
2015 Ark. App. 226.
Appellant’s probation officer testified that appellant missed appointments in August,
October, and November 2015, and he failed to report at all after December 2015. Appellant
testified that he did not report from December 2015 through April 2016 because his mother
was in and out of the hospital, and he did not want to be incarcerated for his prior violations
and kept away from her. Counsel has adequately explained why the revocation decision is
not clearly erroneous and why there is no issue of arguable merit for appeal.
In his pro se statement of points for reversal, appellant first argues that he received
ineffective assistance of counsel. This claim was not presented below, and it cannot be
addressed for the first time on appeal. See Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19
(2000). Appellant next argues that the testimony of his probation officer concerning his
failure to report was not supported by documentary evidence. The trial court, however,
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Cite as 2017 Ark. App. 391
found that the probation officer credibly testified and that appellant himself admitted that he
had quit reporting. We give due regard to the trial court’s superior position in determining
the credibility of witnesses and weight to be given their testimony. Humphrey v. State, 2015
Ark. App. 179, 458 S.W.3d 265. Appellant’s remaining two arguments concern the evidence
that he failed a drug test and failed to pay probation fees. Because we are affirming the
revocation based on appellant’s failure to report, these arguments present no grounds for
reversal.
From our review of the record and the brief presented to us, we find compliance with
Rule 4-3(k) and that the appeal is wholly without merit. Accordingly, we affirm the
revocation orders and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
VAUGHT and BROWN, JJ., agree.
Phillip A. McGough, P.C., by: Phillip A. McGough, for appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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