Opinion
CA CR 08-1271
Opinion Delivered January 13, 2010
Appeal from the Sebastian County Circuit Court, [NO. CR-2008-04-G], Honorable Stephen Merrill Tabor, Judge, Affirmed; Motion to Appellee Withdraw Granted.
This is a no-merit appeal from the revocation of appellant's suspended sentence. On January 16, 2008, appellant pled guilty to nonpayment of child support and was sentenced to seventy-two months' suspended imposition of sentence. On March 5, 2008, a revocation petition was filed alleging that appellant violated the conditions of his probation by failing to pay child support since entering his plea of guilty to nonsupport on January 16, 2008.
This matter was previously considered by this court on July 1, 2009, and rebriefing was ordered because the conditions of appellant's suspended sentence were not included in the addendum. See Vick v. State, 2009 Ark. App. 524.
The resulting Judgment and Disposition Order was filed on January 28, 2008.
The trial court concluded after a hearing that appellant had violated the conditions of his suspended imposition of sentence. By amended judgment and commitment order filed July 30, 2008, appellant was sentenced to six-years' imprisonment in the Arkansas Department of Correction. This appeal followed. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3 (2009) of the Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the ground that an appeal in this matter would be wholly without merit. We grant counsel's motion and affirm the conviction.
An attorney's request to withdraw from appellate representation based upon a meritless appeal must be accompanied by a brief that contains a list of all rulings adverse to his client that were made on any objection, motion, or request made by either party. Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). The argument section of the brief must contain an explanation of why each adverse ruling is not a meritorious ground for reversal. Id. This court is bound to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001). If counsel fails to address all possible grounds for reversal, this court can deny the motion to withdraw and order rebriefing. Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000). The test is not whether counsel thinks the circuit court committed no reversible error, but whether the points to be raised on appeal would be wholly frivolous. See Anders, supra; Eads, supra. Pursuant to Anders, we are required to make a determination of whether the case is wholly frivolous after a full examination of all the proceedings. See Anders, supra; Eads, supra.
Appellant was provided a copy of his counsel's brief and was notified of his right to file a list of points on appeal within thirty days. Appellant has not raised any pro se points for reversal. Accordingly, the State declined to file a responsive brief.
There are no adverse rulings in the record other than the ultimate decision made by the trial court to revoke appellant's suspended sentence. No objections were made by either party that were decided adversely against appellant. Counsel for appellant claims that the only potential argument that could be made is that the State failed to show that appellant willfully violated the terms and conditions of his suspended imposition of sentence.
In a hearing to revoke a probation or suspended imposition of sentence, the State must prove its case by a preponderance of the evidence. Haley v. State, 96 Ark. App. 256, 240 S.W.3d 615 (2006). 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. § 5-4-309 (Repl. 2006); Haley, supra. 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. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Id.
Included in the conditions for appellant's suspended sentence is that appellant was to "pay child support as ordered until child turns 18, plus pay $45/week towards arrearages; fine costs are waived; serve 10 days in SCADC w/credit for 10 days served." Counsel points out that the State presented testimony that the victim had not received any payments toward the previously ordered child support in more than six months. The child-support registry was introduced without objection. Appellant himself testified that he had failed to pay child support since he had pled to the charge of nonpayment of support on January 16, 2008. Appellant was fired from one job because of an altercation with his brother. He was fired from another job for lying on the job application. He lost a third job after wrecking a company vehicle. He admitted to drinking a lot and using the money he had earned to pay for alcohol. Based upon these facts, counsel maintains that the trial court's ruling was not against the preponderance of the evidence. We agree. Accordingly, we grant counsel's motion to withdraw and affirm appellant's conviction.
Affirmed; motion to withdraw granted.
PITTMAN and HART, JJ., agree.