Opinion
No. CACR12-618
01-16-2013
JOSHUA JAMAL HAMILTON APPELLANT v. STATE OF ARKANSAS APPELLEE
C. Brian Williams , for appellant. No response.
APPEAL FROM THE
CRITTENDEN COUNTY
CIRCUIT COURT
[CR-2010-895]
HONORABLE RANDY F.
PHILHOURS, JUDGE
AFFIRMED; COUNSEL'S MOTION
TO BE RELIEVED GRANTED
DAVID M. GLOVER , Judge
On July 30, 2010, Joshua Hamilton pled guilty to the sale or delivery of a controlled substance, a Class C felony. He was placed on twenty-four months' probation and ordered to pay fines and costs in the amount of $1,145, to be paid at the rate of $50 per month. On March 14, 2011, a petition to revoke his probation was filed; on May 3, 2011, his probation was revoked; he was sentenced to sixty days in the Crittenden County Detention Center; and his probation was extended by twenty-four months. On February 1, 2012, a second petition to revoke was filed. Following a hearing, the trial court revoked Hamilton's probation and sentenced him to ninety-six months in the Arkansas Department of Correction. This appeal followed.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, Hamilton's counsel has filed a motion to withdraw as counsel on the ground that the appeal is wholly without merit. The motion is accompanied by an abstract, brief, and addendum referring to everything in the record that might arguably support the appeal, including all motions, objections, and requests decided adversely to Hamilton and a statement of reasons why none of those rulings would be a meritorious ground for reversal.
The clerk of this court furnished Hamilton with a copy of his counsel's brief and notified him of his right to file a pro se statement of points for reversal within thirty days. He filed no points.
Regarding the revocation itself, one of the conditions for Hamilton's probation was that he lead a law-abiding life and not violate any state, federal, or municipal laws. Keylan Sanders, the assistant manager of Fred's Dollar Store, testified that on February 15, 2012, Hamilton entered the store wearing a heavy overcoat and that he was observed putting cigarette lighters in his coat pockets; that he brought a bag of chips and a soft drink to the counter, but then stated he had left his money in the car without mentioning the cigarette lighters; that as he approached the exit door, Sanders asked to speak to him and Hamilton started running; that Sanders and the security guard chased after Hamilton and caught him in the middle of the street; and that the total dollar amount of lighters Hamilton had taken from the store was about $50. Police Officer James Presley testified that he happened upon Hamilton, the assistant manager, and the security guard wrestling in the middle of the street; that he observed several packs of lighters hanging out of Hamilton's pockets; that he listened to the account of events; and that he then arrested Hamilton.
Evidence was also presented concerning Hamilton's alleged failure to pay fines and costs, but at the conclusion of the hearing, the trial court specifically stated that it was not considering any of the issues regarding Hamilton's payment or nonpayment of fines/costs because of the confusion over the judgment on that point. Instead, the trial court found that the preponderance of the evidence established that Hamilton violated the conditions of his probation based upon the events at Fred's Dollar Store. We find no clear error in that conclusion.
Several of the adverse rulings involved evidentiary matters, and none of those rulings would support a meritorious appeal. First, the Arkansas Rules of Evidence do not strictly apply in revocation hearings. Wilson v. State, 25 Ark. App. 45, 752 S.W.2d 46 (1988). Also, it is not necessary to address the adverse evidentiary rulings concerning Hamilton's alleged failure to make ordered payments. The trial court revoked Hamilton's probation based upon the events at Fred's Dollar Store, not his alleged failure to make the ordered payments. Consequently, any adverse rulings concerning evidence associated with the failure to pay cannot provide a basis for reversal. Finally, two evidentiary objections were raised by Hamilton's counsel during the testimony of Officer Harvey Taylor. One objection was to Taylor stating, "Sergeant Presley told me what happened." The second objection was to Taylor stating, "I've placed a robbery charge on him based on my sergeant telling me that he took merchandise from the store, and used force." In the first instance, as noted by the trial court, Taylor did not report what Sergeant Presley told him, just that Sergeant Presley told him what happened. In the second instance, as noted by the trial court, Taylor wasn't making the assertion for the truth of the matter being asserted, but just to explain why he took the action that he did. In addition, Hamilton's counsel explains that while the right to confront witnesses does apply in revocation hearings, Jones v. State, 31 Ark. App. 23, 786 S.W.2d 851 (1990), Sergeant Presley was available, testified, and was subject to cross-examination. So, even if it could be said that there were some need for confrontation, Sergeant Presley was available for that purpose.
The only other adverse ruling was the denial of Hamilton's request for a continuance so that he could hire another attorney. The trial court denied the request, reasoning that Hamilton could not decide he needed a new attorney on the day of trial when he had had two months during which he could have made that request. A trial court's decision to grant or deny a continuance will not be reversed absent an abuse of discretion amounting to a denial of justice. Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). We agree that the trial court did not abuse its discretion in denying this request and that there is no basis for reversal in this adverse ruling.
From our review of the record and the brief submitted by Hamilton's counsel, we find that there has been compliance with Rule 4-3(k) and that the appeal is wholly without merit. Accordingly, counsel's motion to withdraw is granted, and the revocation of Hamilton's probation is affirmed.
Affirmed; counsel's motion to be relieved is granted.
GLADWIN, C.J., and VAUGHT, J., agree.
C. Brian Williams, for appellant.
No response.