Opinion
CACR05-63
Opinion Delivered January 11, 2006
Appeal from the Pulaski County Circuit Court, Fifth Division, [No. Cr 04-2869], Honorable Willard Proctor, Jr., Judge, Affirmed; Motion Granted.
Appellant Timothy Clark Zachary appeals his conviction for failure to appear as found by a jury in Pulaski County Circuit Court, for which he received an eight year sentence of imprisonment. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal of this case is wholly without merit. The motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal, and a statement as to why counsel considers there to be no issue capable of supporting a meritorious appeal. Appellant was provided with a copy of his counsel's brief and notified of his right to file a list of points for reversal within thirty days. He filed no points. The State notified this court that it declined to file any brief. We affirm the conviction and grant counsel's motion to be relieved.
The events leading to the failure-to-appear charge are not in dispute. Appellant was convicted of possession of a controlled substance with intent to deliver, namely methamphetamine, in Pulaski County Circuit Court case number CR02-2348. This conviction arose from items found on appellant's person during an arrest by Little Rock police officers on July 26, 2001. Appellant was free on appeal bond during his appeal of this conviction and was notified in writing on March 29, 2004, to appear before the same circuit court on June 28, 2004, at 8:30 a.m., for a report on the status of his appeal. Appellant did not appear in that court on that date. An arrest warrant issued, and the bail bonding company found appellant on July 2, 2004. Appellant was formally charged with Class C felony failure to appear on July 2, 2004. To be convicted of failure to appear under Ark. Code Ann. § 5-54-120(a)(2) (Repl. 1997), the State had to prove that appellant (1) failed to appear, (2) without a reasonable excuse, (3) after having been lawfully set at liberty, and (4) upon the condition that he appear at a specified time, place, and court. See also Stewart v. State, ___ Ark. ___, ___ S.W.3d ___ (May 19, 2005).
The Arkansas Supreme Court affirmed his conviction in case number CR04-100. See Zachary v. State, ___ Ark. ___, ___ S.W.3d ___ (June 24, 2004).
On October 7, 2004, appellant stood trial before a jury on the failure-to-appear charge. The State presented testimony from the bailiff present in the circuit court on June 28, 2004, who stated that he was personally aware that appellant was scheduled to be present but was not, and that he checked the hallway for appellant to no avail. The State also presented the deputy circuit clerk responsible for entering Pulaski County Circuit Court information in the court's registry. The deputy circuit clerk identified a certified copy of a surety bond set for his appeal that allowed him to be free pending the appeal. The deputy circuit clerk also verified by a certified copy of the notice to appear, which set forth the time, date, and location of appearance. This notice was signed by appellant and his attorney and was served on appellant on March 29, 2004, at the last hearing. The deputy circuit clerk testified that the registry entries showed that appellant failed to appear in court on June 28, 2004. She also identified a certified copy of a bond surrender form showing that appellant was brought to the county jail on July 2, 2004, by his bondsman. At the conclusion of the State's evidence, appellant's counsel moved for directed verdict arguing that there was no proof that his failure to appear was without reasonable cause. The motion was denied, and appellant took the stand.
Appellant agreed that he was not present because he "plum forgot." Appellant agreed that he was given written notice and signed the notice of the mandatory appearance on June 28. Although he was well familiar with court appearances and had made numerous such appearances in the past, he missed this one. Appellant said he was camping at Lake Overcup with his girlfriend at the time. Appellant admitted on cross examination that his failure to appear was not reasonable.
At the conclusion of the evidence, appellant's counsel renewed the motion for directed verdict, which was denied. On this evidence, the jury found appellant guilty, and the trial court imposed a sentence. This appeal followed, and we agree with counsel that there is no non-frivolous argument to be made in support of reversal of this conviction.
"Reasonable excuse" is a defense to "failure to appear." See Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987). It was appellant's obligation to establish to the satisfaction of the jury that he had a reasonable excuse for his failure to appear. Id. Appellant admitted that his failure to appear was not reasonable. Certainly this was an issue of fact for the jury to determine, and with appellant's frank admission, their conclusion was supported by more than sufficient evidence. Based upon our review of the record and the brief presented to this court, we conclude that there has been full compliance with Rule 4-3(j) and the requirements of Anders, supra. We conclude that the appeal is without merit. Counsel's motion to be relieved is granted and the judgment of conviction is affirmed.
Affirmed.
NEAL and ROAF, JJ., agree.