Opinion
CA CR 09-169
Opinion Delivered January 13, 2010
Appeal from the Crittenden County Circuit Court, [CR-2002-906], Honorable Ralph Wilson, Jr., Judge, Affirmed; Motion Granted.
On January 3, 2003, appellant, Zackson Watlington, pleaded guilty to the offense of burglary, a Class B felony. He was placed on supervised probation for a period of seven years and ordered to pay fines and costs of $1250 at the rate of $75 per month beginning February 15, 2003.
On August 28, 2008, the State filed a petition for revocation, alleging that Watlington had violated the terms of his probation by being charged with battery in the first degree and by failing to pay fines, costs and fees; to report as directed; to pay probation fees; and to notify the sheriff and his probation officer of his current address and employment. At the hearing on the petition to revoke, the trial court granted Watlington's motion to dismiss the allegations that he had not reported as directed; had failed to pay probation fees; and had not informed the sheriff and his probation officer of his current address and employment. However, the trial court found that Watlington had inexcusably failed to pay his fines and costs and had, without legal excuse or reason, battered another person, which violated the condition of his probation that he lead a law-abiding life and not violate any state, federal, or municipal law. The trial court sentenced Watlington to twelve years in the Arkansas Department of Correction, with an additional five-year suspended imposition of sentence.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to appellant made by the trial 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. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file pro se points; appellant has filed fifteen points.
There were four objections adverse to Watlington at the revocation hearing — two based on the Confrontation Clause due to testimony from a police officer concerning what the victim of the battery, who was not present at trial despite being subpoenaed, said to the officer; the denial by the trial court to dismiss two of the allegations found in the revocation petition; and the revocation of his probation.
In revocation proceedings, the State has the burden of proving that appellant violated the terms of his probation, as alleged in the revocation petition, by a preponderance of the evidence, and this court will not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence. Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d 826 (1998). The State need only show that the appellant committed one violation in order to sustain a revocation. See Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000).
Here, one of the bases upon which the trial court revoked Watlington's probation was the failure to pay fines and costs. The State presented testimony from Debra Wiseman, an employee of the Crittenden County Sheriff's Office, that Watlington was assessed $1250 in fines and costs on January 3, 2003, and had paid nothing. She stated that Watlington had been given credit for the handling fees for the time during which he had been incarcerated, but that he still owed the $1250 plus the accrued handling charges. The State introduced the ledger sheet that indicated the original fine and costs; the accrued handling charges; a notation that Watlington was in prison from January 10, 2007 to August 11, 2008; another notation that he would pay $50 per month beginning sixty days after release from the Department of Correction; and the credit for the handling fees accrued while he was imprisoned. Watlington did not testify; therefore, he offered no reason why he did not make his payments as ordered. The trial court did not err in revoking Watlington's probation on this basis.
Because the State need only prove one violation of probation to sustain a revocation, it is unnecessary to address the two Confrontation Clause objections concerning the first-degree battery charge that were adverse to Watlington because the trial court properly revoked the probation based on failure to pay fines and costs.
Watlington's first point of appeal is that he did not inexcusably fail to pay the fines and costs because he was not required to pay until sixty days after his release from the Department of Correction, and he had only been out eleven days. While the payment ledger indicated that Watlington had been in prison from January 10, 2007, until August 11, 2008, he had made no effort to make any payments on his fine and costs since 2003, when he was originally ordered to begin making payments, and he offered no testimony as to why he had not made any payments.
Nine of Watlington's points concern events surrounding the charge of first-degree battery. However, as discussed above, the State need only prove one violation to sustain its burden for revocation, and it did so by proving that Watlington had inexcusably failed to pay his fines and costs. Therefore, none of the points relating to the first-degree battery charge need be addressed.
None of Watlington's remaining five points — that he did not have a complete and accurate transcript; that the transcript had a critical deletion; that he was not Mirandized; that his counsel was ineffective; and that the prosecution "stacked charges" — are preserved for review because they were not raised to the trial court, and he cannot raise them for the first time on appeal. See Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008).
From a review of the record and the brief presented to this court, appellant's counsel has complied with the requirements of Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals. Counsel's motion to be relieved is granted, and appellant's conviction is affirmed.
Affirmed; counsel's motion to be relieved is granted.
VAUGHT, C.J., and MARSHALL, J., agree.