Opinion
No. CACR12-154
01-16-2013
WILLIAM A. MARTIN APPELLANT v. STATE OF ARKANSAS APPELLEE
APPEAL FROM THE ASHLEY
COUNTY CIRCUIT COURT,
[NO. CR-08-3-1]
HONORABLE SAM POPE, JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
ROBIN F. WYNNE , Judge
William A. Martin has filed an appeal from the revocation of his probation. His attorney has filed a no-merit brief and a motion to be relieved as counsel. We affirm the revocation and grant the motion.
On July 29, 2008, a judgment and disposition order was entered in Ashley County Circuit Court following Martin's negotiated plea of guilty to three counts of second-degree forgery. Martin was sentenced to five years' probation, with the first three years to be supervised. He signed a written list of conditions of probation, which included standard provisions and the requirement that he pay $478 in restitution.
Martin was charged with writing thirteen unauthorized checks on the account of Nanci Druey in October and November 2007. Counts 4-13 were nolle prossed.
In March 2009, the State filed a revocation petition alleging that Martin had violated the conditions of his probation by failing to do the following: report a change in address, make himself available for drug and alcohol testing, report to his probation officer, and pay supervision fees, public-defender fees, court costs, restitution, and other fees as directed. An amended revocation petition was filed in April 2009 after Martin was arrested on charges that included driving while intoxicated. In September 2009, the court found that Martin had violated the conditions of his probation and sentenced him to one year in a regional-punishment facility and five years' supervised probation. The order included a requirement that Martin complete the substance-abuse program while in jail.
On April 19, 2011, the State filed a revocation petition alleging that Martin had violated the conditions of his probation by committing new offenses, failing to report to his probation officer, and failing to pay his monthly supervision fees, restitution, and other costs and fees. A revocation hearing was held on November 28, 2011. Martin's probation officer, Scott McDonald, testified that Martin was released from confinement in the regional-punishment facility on July 27, 2010, and on July 28, 2010, he called Ms. Cruce, his probation officer at that time, and told her that he was going to drink that night. She told him that he was not permitted to drink while he was on probation. Two probation officers and a sheriffs deputy then located Martin and found him "very intoxicated." Martin was arrested for public intoxication and disorderly conduct. He later pled guilty in district court to public intoxication, and the disorderly conduct charge was dismissed.
Officer McDonald further testified that Martin had not reported since December 2010, when he was told to report back on January 24, 2011. McDonald stated that he talked to Martin on the telephone on March 21, at which time Martin sounded intoxicated and refused to disclose his whereabouts. McDonald told him that if he did not report by 1:30 that day, a violation would be filed. Martin did not report that day, and McDonald had not talked to him since. In addition, Martin was delinquent in paying his supervision fees in the amount of $175 at the time the violation report was written and had not made payments for court costs and restitution as ordered.
Martin testified on his own behalf. He admitted that he drank alcohol on July 28, 2010, and that he failed to report to probation in January, February, and March 2011.
At the close of evidence, the circuit court stated
Mr. Martin, to be a smart man, you're awfully dense to come out of a program I sent you to to try to deal with your alcohol issues the first day and just decide that just because you're free you can go drink that day and then disappear from probation three or four months in a row or longer. I'm going to revoke your probation and sentence you to the Arkansas Department of Correction for a period of six years on these charges. I'll give jail time credit. You'll owe the court costs and fees assessed when you get out of the penitentiary. If you don't pay them, you'll be looking at me again because I'm revoking you for drinking and not paying.In the written findings and order on revocation, the court found that Martin had violated probation conditions 1 (committing new criminal offenses), 6 (consuming alcoholic beverages), and 10 (reporting to probation officer). A judgment and commitment order was entered on November 29, 2011, and Martin filed a notice of appeal on December 20, 2011.
Martin's attorney has filed a motion to withdraw and a brief 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, arguing that an appeal in this case is wholly without merit. An Anders brief must refer to everything in the record that might arguably support an appeal, including all motions, objections, and requests decided adversely to appellant, and a statement of reasons why none of those rulings would be a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k)(l); Green v. State, 2009 Ark. App. 519, at 2, 334 S.W.3d 418, 418. Martin has not exercised his right to file pro se points for reversal.
Other than the revocation itself, the only potentially adverse ruling was an objection to appellant's counsel asking the probation officer whether alcoholism was a disease. The trial court did not sustain the objection, but instead told counsel to proceed. This was not an adverse ruling, but even if it were, Martin could not show prejudice. This question dealt with drinking alcohol, and there were other grounds for the revocation.
To revoke probation or a suspension, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Ark. Code Ann. § 16-93-308 (Supp. 2011); Blakes v. State, 2009 Ark. App. 451, 320 S.W.3d 651. The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Id. When appealing a revocation, the appellant has the burden of showing that the trial court's findings are clearly against the preponderance of the evidence. Id. Here, Martin admitted to drinking alcohol and failing to report to his probation officer. Any argument that the trial court's findings are against the preponderance of the evidence would clearly be without merit.
Martin's counsel has complied with the requirements of Rule 4-3, and we agree that there are no meritorious arguments for reversal in this case.
Affirmed; motion to withdraw granted.
PITTMAN and BROWN, JJ., agree.