Todd Michael Winters v. State of Arkansas , 2023 Ark. App. 15 ( 2023 )

Cite as 2023 Ark. App. 15ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-22-406
Opinion Delivered January 18, 2023
TODD MICHAEL WINTERS
APPELLANT APPEAL FROM THE BRADLEY
COUNTY CIRCUIT COURT
V. [NO. 06CR-17-69]
STATE OF ARKANSAS HONORABLE CREWS PURYEAR,
APPELLEE JUDGE
AFFIRMED; MOTION TO WITHDRAW
GRANTED
MIKE MURPHY, Judge
The Bradley County Circuit Court revoked Todd Winters’s suspended imposition of
sentence and sentenced him to three years’ imprisonment. Pursuant to Arkansas Supreme
Court Rule 4-3(k) and Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed
a motion to withdraw stating that there is no merit to an appeal. The motion is accompanied
by a brief in which counsel explains why there is nothing in the record that would support
an appeal. The clerk of this court served appellant with a copy of counsel’s brief and notified
him of his right to file a pro se statement of points for reversal within thirty days, but he has
not done so. We affirm the revocation and grant counsel’s motion to withdraw.
Appellant Todd Winters entered a plea of guilty to commercial burglary and theft of
property as reflected in a sentencing order entered on March 5, 2018. He was sentenced to
six years of probation, but he later violated that probation and was resentenced to two years
in the community corrections center and four years’ suspended imposition of sentence.
On July 12, 2020, the State filed a petition to revoke appellant’s suspended sentence
alleging that he had violated the conditions thereof by obtaining new charges, including
assault on a family member, two counts of third-degree battery, and third-degree assault. A
revocation hearing was held on May 3, 2021. The State presented no witnesses but entered
certified copies of convictions for assault and battery without objection. Winters called two
witnesses. The first witness was his brother, who said that he had helped Winters get a job
and he has witnessed Winters making progress in his anger management. He said sending
Winters back to prison would be a setback. The second witness was a caseworker advocate
with Immerse Arkansas. She stated that she had been working with Winters helping him
apply for jobs, apply for benefits, and enroll in barber school. After hearing the evidence, the
court found by a preponderance of the evidence that Winters had violated the terms and
conditions of his probation. Instead of sentencing Winters, however, the court held the
sentence in abeyance to allow Winters to take anger-management counseling. It set the
sentencing hearing four months out and left the record open.
Winters failed to appear at the September 8 hearing. It was rescheduled to December
6. At the December 6 hearing, Winters testified he had completed anger-management
counseling but could not provide proof and that he had missed his last court date because
he had been walking to court. On cross-examination, he admitted that his brother’s girlfriend
accused him of chasing her with a knife; that he had pleaded guilty to third-degree assault
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on July 1, 2020; and that he had pleaded guilty to two counts of third-degree battery and
assault on a family member on March 17, 2021. The court sentenced Winters to three years
in the Arkansas Department of Correction.
In a no-merit brief, counsel is required to list each ruling adverse to the defendant
and explain why it does not present a meritorious ground for reversal. Eads v. State, 74 Ark.
App. 363, 365, 47 S.W.3d 918, 919 (2001). After a full examination of the proceedings, we
are required to determine whether an appeal would be wholly frivolous. Tennant v. State,
2014 Ark. App. 403, at 2, 439 S.W.3d 61, 63. Counsel identifies two rulings adverse to
appellant in addition to the revocation decision. Counsel has addressed each adverse ruling,
arguing that the rulings do not have merit and that evidence supported the circuit court’s
decision to revoke Winters’s suspended imposition of sentence. We agree.
We first address whether the evidence was sufficient to support the revocation. To
revoke probation, the State must prove by a preponderance of the evidence that the
defendant violated a condition of his or her suspended imposition of sentence. Green v. State,
2010 Ark. App. 174, at 4. The State needs to prove only one violation. Peals v. State, 2015
Ark. App. 1, at 4, 453 S.W.3d 151, 154. Here, the undisputed evidence was that Winters
obtained new charges while serving a suspended imposition of sentence, in violation of those
terms. We hold that there would be no merit to an appeal of the sufficiency of the evidence
supporting the revocation.
Nor did the court err in making the two additional adverse rulings against the
appellant. The first was a motion to continue to produce a certain witness whom defense
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counsel thought the State was going to produce. The defense had not issued its own
subpoena for the witness, and it was not erroneous for the court to deny the continuance.
See Staggs v. State, 2021 Ark. App. 259, at 9 (“A lack of diligence alone is a sufficient basis to
deny a motion for continuance.”). The second was a request by Winters to be sentenced to
rehab instead of prison, but because his sentence was within the statutory range of
punishment, the sentence was not an abuse of the court’s discretion. Pettigrew v. State, 2019
Ark. App. 420. We affirm.
Affirmed; motion to withdraw granted.
GRUBER and BARRETT, JJ., agree.
Potts Law Office, by: Gary W. Potts, for appellant.
One brief only.
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