Opinion
CA CR 08-1465
Opinion Delivered January 13, 2010
Appeal from the Crittenden County Circuit Court, [NO. CR-04-454], Honorable David Burnett, Judge, Affirmed; Motion Granted.
Appellant Raymond Graves was subject to ten years of suspended imposition of sentence and probation for two convictions of delivery of a controlled substance (cocaine). Appellant agreed to certain written good-behavior conditions. The ten-year concurrent terms commenced in July 2004, entered by the Crittenden County Circuit Court. The State filed a petition to revoke in 2008, alleging that appellant failed to abide by his conditions in the following ways: (1) by possessing and using alcohol, (2) by drinking in public, (3) by loitering, (4) by failing to notify law enforcement of his current address and employment, (5) by associating with criminals, and (6) by associating with felons. After a hearing, the trial judge found that appellant had violated allegations (1) and (2).
After the judgment was filed, appellant's attorney filed a timely notice of appeal. Subsequently, appellant's attorney filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(k) (2009), along with a motion to be relieved as counsel, asserting that there is no issue of arguable merit in an appeal of these revocations.
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) (2009). The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Rule 4-3(k)(1). The abstract and Addendum of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the circuit court. Rule 4-3(k)(1). See also Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). 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). This framework is a method of ensuring that indigents are afforded their Constitutional rights. Campbell v. State, 74 Ark. App. 277, 279, 47 S.W.3d 915, 917 (2001). 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. See id.
Counsel provided his client with a copy of the motion and brief by mailing it to him where appellant was incarcerated. Appellant did not file any pro se points for reversal. The State elected not to file a brief with our court. After a full examination under the proper standards, we hold that counsel provided a compliant "no merit" brief demonstrating that an appeal would be wholly without merit, and further, that counsel's motion to be relieved should be granted.
The only rulings adverse to appellant were the revocations themselves. In revocation cases, the State must prove that the defendant has inexcusably failed to comply with at least one of his conditions. See Ark. Code Ann. § 5-4-309(d); Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). The burden of proof is by a preponderance of the evidence, and the trial court's findings of fact will not be reversed unless they are clearly erroneous. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). Any question concerning credibility is left to the finder of fact. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002); Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001).
In the revocation hearing, the State called two West Memphis police officers to the stand — Officers Richard Dennis and Robert Langston. These officers testified that they were on duty in April 2008 when they observed appellant standing out in the street in front of a parked car on North Eighth Street, drinking out of a twelve-ounce bottle of beer. Appellant was arrested for drinking in public or "public intoxication." Appellant's brother was also standing there, and although he attempted to flee, he was arrested too.
Appellant testified that he was certain he did not have a beer, nor did his companions. Appellant said that he, his brother, and a friend were standing in his sister's yard for a barbecue, not standing in the street. Appellant testified that these officers were familiar with him and wrongly accused him of being drunk because they were angry that he had been granted an appeal bond.
The judge announced his decision at the end of the hearing and found that he believed the officers' testimony that there was beer at the barbecue, that the men were drinking beer, and that they were in the roadway. Therefore, the judge found by a preponderance of the evidence that appellant had violated the terms that prohibited use of alcohol, including public drinking. The judge noted that this was a "swearing match" and that the officers were more credible.
Because credibility is an issue solely for the trial court in revocation hearings, and because the burden of proof is by a preponderance standard, there could be no meritorious argument for reversal. Having considered this under the proper standards required for no-merit appeals, we affirm the revocations and grant counsel's motion to be relieved.
Affirmed; motion granted.
KINARD AND GRUBER, JJ., agree.