Justin Gatewood v. State of Arkansas ( 2024 )

Cite as 2024 Ark. App. 445ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-24-38
JUSTIN GATEWOOD Opinion Delivered September 25, 2024
APPELLANT
APPEAL FROM THE SALINE COUNTY
V. CIRCUIT COURT
[NO. 63CR-20-165]
STATE OF ARKANSAS
APPELLEE HONORABLE BRENT DILLON
HOUSTON, JUDGE
REBRIEFING ORDERED; MOTION TO
BE RELIEVED DENIED
N. MARK KLAPPENBACH, Judge
This is a no-merit appeal filed on behalf of Justin Gatewood following the circuit
court’s revocation of his probation. Gatewood’s counsel filed a timely notice of appeal
followed by a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Arkansas Supreme Court Rule 4-3(b) (2023), along with a motion to be relieved as counsel
asserting that there is no issue of arguable merit on appeal. Appellant provided no pro se
points for reversal, so the State filed no response. We deny counsel’s motion and order
rebriefing.
In March 2022, Gatewood entered a negotiated guilty plea to three drug-related
crimes and was given a four-year term of probation subject to certain conditions of behavior.
The State filed a petition to revoke in April 2023, and the revocation hearing was conducted
in October 2023. The State presented the testimony of two law enforcement officers
involved in the investigation of the alleged battery of Gatewood’s girlfriend as well as
Gatewood’s probation officer, who testified about Gatewood’s failed drug tests. In
Gatewood’s testimony, he admitted that he had used controlled substances (marijuana) and
that he had not paid anything toward his financial obligations to the State, but he asked for
leniency. The circuit court found that Gatewood had violated the conditions of his
probation, including that he had used controlled substances; failed to make payments on his
fines, costs, and restitution; and committed a criminal offense. The circuit court entered a
sentencing order upon revocation that sentenced Gatewood to six years of incarceration, and
this appeal followed.
A no-merit appeal requires that the argument section of counsel’s brief contain a list
of all rulings adverse to the defendant made by the circuit court on all objections, motions,
and requests together with an explanation as to why each is not a meritorious ground for
reversal. Skaggs v. State, 2023 Ark. App. 325, 670 S.W.3d 811. The requirement for briefing
every adverse ruling ensures that the due-process concerns in Anders are met and prevents
the unnecessary risk of a deficient Anders brief resulting in an incorrect decision on counsel’s
motion to withdraw. Id. Pursuant to Anders, we are required to determine whether the case
is wholly frivolous after a full examination of all the proceedings. Id.In revocation proceedings, the State has the burden of proving by a preponderance
of the evidence that a defendant violated the terms of probation as alleged in the revocation
petition, and we will not reverse the circuit court’s decision to revoke probation unless it is
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clearly against the preponderance of the evidence. Stanley v. State, 2023 Ark. App. 89, 661
S.W.3d 218. The State need only show that the appellant committed one violation to sustain
a revocation. Id. Here, counsel has addressed the sufficiency of the evidence presented in
support of the decision to revoke probation.
However, counsel failed to brief and explain why Gatewood’s request for a lesser
sentence provides no basis for a meritorious appeal. Counsel addressed the legality of the
sentence but not the adverse ruling that rejected the request for a lesser sentence. See Edwards
v. State, 2024 Ark. App. 27; Hogue v. State, 2024 Ark. App. 20; Cook v. State, 2021 Ark. App.
18. Gatewood himself asked for leniency, and his attorney asked for a jail sanction and that
he be allowed to stay on probation and not be incarcerated.
A no-merit brief in a criminal case that fails to address an adverse ruling does not
satisfy the requirements of Rule 4-3, and rebriefing will be required. Moore v. State, 2022
Ark. App. 5.; Cook, supra. Counsel has fifteen days from the date of this opinion to file a
substituted brief, after which our clerk will forward counsel’s motion and brief to appellant,
and he will have thirty days within which to raise pro se points in accordance with Rule 4-3.
The State will likewise be given an opportunity to file a brief.
Rebriefing ordered; motion to be relieved denied.
ABRAMSON and BROWN, JJ., agree.
Jones Law Firm, by: F. Parker Jones III, for appellant.
One brief only,
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