Atteberry v. State

2016 Ark. App. 331

• Court: Court of Appeals of Arkansas
• Decided: June 22, 2016
• Docket: CR-15-884
• Status: Published

Opinion

Cite as 2016 Ark. App. 331

ARKANSAS COURT OF APPEALS DIVISION III No. CR-15-884

Opinion Delivered: June 22, 2016 MICHAEL ATTEBERRY APPELLANT APPEAL FROM THE FRANKLIN V. COUNTY CIRCUIT COURT, NORTHERN DISTRICT STATE OF ARKANSAS [NO. CR 2011-41A] APPELLEE HONORABLE WILLIAM M. PEARSON, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

RAYMOND R. ABRAMSON, Judge

Michael Atteberry appeals from the revocation of his probation. Pursuant to Anders

v. California, 386 U.S. 738 (1967), and Rule 4-3(k) (2015) of the Rules of the Arkansas

Supreme Court and Court of Appeals, Atteberry’s counsel has filed a motion to withdraw

alleging that this appeal is wholly without merit in addition to a brief in which all adverse

rulings are abstracted and discussed. Although Atteberry was mailed a copy of his attorney’s

brief and motion notifying him of his right to present pro se points for reversal, he did not

file any pro se points. The State elected to not file a brief with our court. We affirm the

revocation and grant counsel’s motion to withdraw.

On July 15, 2011, Atteberry pled guilty to possession of a controlled substance-

methamphetamine and possession of drug paraphernalia, and the Franklin County Circuit Cite as 2016 Ark. App. 331

Court sentenced him to sixty months’ probation and ordered him to pay fines, fees, and

court costs. The conditions of Atteberry’s probation included that he not commit new

criminal conduct punishable by imprisonment and that he pay fines, fees, and court costs.

On April 16, 2015, the State filed a petition to revoke Atteberry’s probation. The

State alleged that he was arrested and charged with manufacturing methamphetamine; that

he had marijuana growing in his yard; and that he had failed to make court-ordered

payments. The court held a hearing on the petition on July 2, 2015.

At the hearing, Mike Hamilton, a member of the fifth judicial drug-task force,

testified that on July 30, 2014, he detained Sharon Moye, Atteberry’s wife, along with

Kimberly Engleman, Lisa Finn, and James Frames outside a pharmacy because a woman had

reported that they appeared to be under the influence of narcotics. He testified that after he

had detained them, Frames admitted to him that they were buying pseudoephedrine to cook

meth. Accordingly, Hamilton arrested them.

Kimberly Engleman testified that Hamilton arrested her on July 30, 2014, after she

bought Sudafed from a pharmacy. She stated that following her arrest, she reported to

officers that Atteberry had told her that he needed the pseudoephedrine and that he gave

her the money to buy the drug from a pharmacy. She explained that Atteberry wanted the

pseudoephedrine to make methamphetamine and that she hoped to get a half gram of

methamphetamine in consideration for buying the Sudafed. She testified that she spoke with

Atteberry the day of the hearing and that he had told her not to testify.

Finn testified that Atteberry had asked her to buy Sudafed to make

methamphetamine and had said that he would give her a half gram of methamphetamine in

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return. She explained that she went to the pharmacy along with Engleman, Frames, and

Moye. She stated that the pharmacy sold the Sudafed to Engleman and Frames; however, it

refused to sell her the drug. She noted that the State promised not to prosecute her if she

testified honestly at the hearing. Finn further testified that Atteberry and Moye came to her

house the night before the hearing and told her she did not have to testify.

Following Finn’s testimony, the State rested. Atteberry then testified on his own

behalf. He denied asking Engleman or Finn to buy pseudoephedrine and denied making

methamphetamine. He further denied knowing how to make methamphetamine. He also

denied going to Finn’s house the night before the hearing. He further testified that

Engleman cursed at him immediately prior to the hearing and, in response, he told her she

needed to go home.

The court then found that the State had proved by a preponderance of the evidence

that Atteberry had violated a condition of his probation by manufacturing

methamphetamine. The court “credit[ed] the testimony of the State’s witnesses.” The court

then sentenced Atteberry to 120 months in the Arkansas Department of Correction.

Atteberry filed a timely notice of appeal from the revocation.

In order to revoke suspension or probation, the circuit court must find by a

preponderance of the evidence that the defendant inexcusably violated a condition of the

suspension or probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2015). The State need

show only one violation of probation, and the circuit court’s decision to revoke will not be

reversed unless it is clearly against the preponderance of the evidence. Phillips v. State, 101

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Ark. App. 190, 272 S.W.3d 123 (2008). We defer to the credibility determinations made

by the circuit court. Peel v. State, 2015 Ark. App. 226.

In this case, we agree with Atteberry’s counsel that there is no possible merit in an

argument that the circuit court’s decision to revoke was in error. The court revoked

Atteberry’s probation based on his committing the crime of manufacturing

methamphetamine, and while the evidence is insufficient to show that Atteberry committed

that offense, the evidence is sufficient to support the offense of attempting to manufacture

methamphetamine. It is settled law that, although the evidence may be insufficient in a

probation-revocation proceeding to sustain an allegation that appellant committed a specific

offense, revocation will be sustained if the evidence establishes a lesser-included offense. See

Ark. Code Ann. § 5-1-110(b)(2) (Repl. 2013); Pratt v. State, 2011 Ark. App. 185 (citing

Willis v. State, 76 Ark. App. 81, 62 S.W.3d 3 (2001)).

A review of the record shows that there were also two evidentiary rulings that were

adverse to Atteberry’s defense. However, because Atteberry’s objections were made based

on the admission of evidence and hearsay, which are well within the circuit court’s

discretion, we agree with Atteberry’s counsel that there is no possible ground for reversal in

these adverse evidentiary rulings. Moore v. State, 362 Ark. 70, 207 S.W.3d 493 (2005). Other

than the underlying sufficiency of the evidence to support the revocation and these

evidentiary issues, there were no other rulings adverse to Atteberry.

Accordingly, we hold that there has been compliance with Rule 4-3(k) and that

Atteberry’s appeal is wholly without merit. Therefore, having considered this matter under

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the proper standards required for no-merit appeals, we affirm the sentencing order revoking

Atteberry’s probation and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

VIRDEN and GRUBER, JJ., agree.

John C. Burnett, for appellant.

No response.