Alls v. State , 2013 Ark. App. 713 ( 2013 )

Cite as 2013 Ark. App. 713
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-13-65
Opinion Delivered December 4, 2013
REGINALD EUGENE ALLS APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-08-1142]
V.
HONORABLE RALPH WILSON, JR.,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED; MOTION GRANTED
KENNETH S. HIXSON, Judge
In July 2009, appellant Reginald E. Alls pleaded guilty to possession of a controlled
substance before the Crittenden County Circuit Court in exchange for a three-year
probationary term. Among the conditions of appellant’s probation were requirements that
he pay all fines, costs, and fees as directed and that he report to probation as directed. In June
2012, the State filed a petition to revoke his probation, contending that appellant violated
these conditions.1 After a revocation hearing, the trial court found, by a preponderance of the
evidence, that appellant was in violation of his conditions concerning payment of fines, fees,
costs, and failure to report to his probation officer. A judgment was entered upon revocation,
sentencing appellant to three years in the Arkansas Department of Correction.
1
This was the second probation-revocation petition filed. The first was filed in January
2010, and subsequently, appellant negotiated with the State and the trial court to restart his
three-year probation commencing in September 2010.
Cite as 2013 Ark. App. 713
Appellant’s attorney filed a timely notice of appeal from the judgment upon revocation.
Subsequently, appellant’s attorney filed a no-merit brief pursuant to Ark. Sup. Ct. R. 4-3(k)
(2013), along with a motion to be relieved as counsel, asserting that there is no issue of
arguable merit to present on appeal. A request to withdraw on the ground that the appeal is
wholly without merit shall be accompanied by a brief including an abstract and addendum.
Ark. Sup. Ct. R. 4-3(k)(1). The brief shall contain an argument section that consists of a list
of all rulings adverse to the defendant made by the circuit court with an explanation as to why
each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1). It
is imperative that counsel follow the appropriate procedure when filing a motion to withdraw
as counsel. Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004). In furtherance of the
goal of protecting constitutional rights, it is both the duty of counsel and of this court to
perform a full examination of the proceedings as a whole to decide if an appeal would be
wholly frivolous. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001).
We denied counsel’s previous motion and ordered that counsel rebrief this appeal in
Alls v. State, 2013 Ark. App. 434, handed down on June 26, 2013. In that opinion, we held
that the argument section of counsel’s brief was deficient, pointing to the lack of a reference
to Rule 4-3(k) or Anders v. California, 386 U.S. 738 (1967), and a lack of an adequate
discussion or explanation as to why each of the two adverse rulings lacked merit. We also
noted that counsel’s motion to be relieved referred to Rule 4-3(j) instead of Rule 4-3(k).
2
Cite as 2013 Ark. App. 713
Those deficiencies have been addressed in the substituted brief and revised motion to be
relieved as counsel, both filed in August 2013.2
Although appellant was provided a copy of his attorney’s brief and motion by mail,
notifying appellant of his right to present pro se points for reversal, appellant did not file any
pro se points. The State elected not to file a brief with our court. After a full examination
under the proper standards, we hold that counsel’s “no merit” brief demonstrates that an
appeal would be wholly without merit, and further, that counsel’s motion to be relieved
should be granted.
The primary adverse ruling was the decision to revoke probation. 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 his probation. Amos v.
State, 2011 Ark. App. 638. Ark. Code Ann. § 16-93-308(d) (Supp. 2011). This court will
not reverse unless the trial court’s findings are clearly against the preponderance of the
evidence, and our court defers to the credibility determinations made by the trial court and
2
We acknowledge that our court decided in Hollins v. State, 2013 Ark. App. 695, on
November 20, 2013, that this attorney failed to provide an adequate argument in his no-
merit brief, ordering rebriefing and reporting this attorney to the Professional Conduct
Committee. In Hollins, counsel was directed to include and apply the appropriate standard
of review and was referred to a footnote in Soto v. State, 2013 Ark. App. 619, handed down
on October 30, 2013. Soto v. State involved this same attorney in a no-merit appeal, and the
opinion contained a footnoted caveat that this attorney should include the Anders citation in
his brief. We nonetheless affirmed Mr. Soto’s appeal and granted this attorney’s motion to
be relieved. In the present appeal, counsel’s substituted brief and revised motion were
submitted prior to either Hollins or Soto being decided. The substituted filings fail to cite
Anders, but do cite Rule 4-3(k), the appropriate standard of review, and provide an adequate
discussion of each adverse ruling.
3
Cite as 2013 Ark. App. 713
the weight it assigns to the evidence. Gossett v. State, 87 Ark. App. 317, 191 S.W.3d 548
(2004). Once the State introduces evidence of nonpayment, the defendant then has the
burden of going forward with some reasonable excuse for his failure to pay as ordered.
Sanders v. State, 2012 Ark. App. 697. The State need only prove one violation in order to
support the revocation of probation. Id.
The evidence at the November 1, 2012 revocation hearing included the testimony
of a sheriff’s department employee in charge of collecting of fines and costs. The employee
testified that appellant paid only $345, although his monthly payments were set at $75, and
that appellant’s current balance was $1265. The ledger sheet was admitted into evidence
without objection.
Appellant’s probation officer testified that he had not seen appellant except one time
in March 2012, despite warning letters, home visits, and an attempt to reach him at the
telephone number that appellant provided, which had been disconnected. The probation
officer testified that appellant owed $175 in probation fees, which accrued at $25 per month.
Appellant did not testify.
Based on the foregoing, we agree with counsel’s assertion that the trial judge’s decision
to revoke his probation was not clearly erroneous or clearly against the preponderance of the
evidence. No issue of arguable merit could be raised on appeal to reverse that finding,
particularly where only one violation was required to be established in order to sustain a
revocation.
4
Cite as 2013 Ark. App. 713
Appellant’s counsel notes that there was one evidentiary ruling regarding a State’s
objection. The probation officer remarked during his testimony that he would recommend
a sanction of community service and four days in jail as a punishment for appellant’s
violations, if revocation were not ordered. The State objected on the basis that it invaded the
province of the trial court. Defense counsel responded that the recommendation was
appropriate for the trial court to take into consideration. The trial court ruled that it could
take that in consideration, the probation officer had already given his recommendation, “so
let’s move on.” This does not present an issue of arguable merit. First, this was not an
adverse ruling because the trial court apparently agreed with defense counsel. Second, the
Rules of Evidence are not generally applicable to revocation proceedings. Ark. R. Evid.
1101(b)(3)(2013). Counsel correctly notes that Ark. Code Ann. § 16-93-307(c)(2) (Supp.
2011) codifies Rule 1101(b)(3). This, therefore, presents no issue of arguable merit to raise
on appeal.
Having considered this under the proper standards required for no-merit appeals, we
affirm the revocation of appellant’s probation and grant counsel’s motion to be relieved.
Affirmed; motion granted.
GLOVER and WOOD, JJ., agree.
C. Brian Williams, for appellant.
No response.
5