Boeta v. State

2014 Ark. App. 398

• Court: Court of Appeals of Arkansas
• Decided: June 18, 2014
• Docket: CR-13-946
• Status: Published

Opinion

Cite as 2014 Ark. App. 398

ARKANSAS COURT OF APPEALS DIVISION III No. CR-13-946

JAMES ANDREW BOETA Opinion Delivered June 18, 2014 APPELLANT APPEAL FROM THE CRITTENDEN V. COUNTY CIRCUIT COURT [NO. CR-2011-1123]

STATE OF ARKANSAS HONORABLE BRENT DAVIS, APPELLEE JUDGE

AFFIRMED; MOTION GRANTED

DAVID M. GLOVER, Judge

James Boeta pleaded guilty on November 11, 2011, to possession of drug paraphernalia

with purpose to use, a Class D felony. He was sentenced to two years’ probation; fined $500;

ordered to pay a monthly probation fee; and ordered to pay costs and fees at the rate of $50

per month beginning in January 2012. Conditions of his probation included paying all fines,

court costs, restitution, and monthly probation fees, as well as reporting to his probation

officer as directed. On March 8, 2013, the State filed a petition to revoke Boeta’s probation,

alleging that he had failed to pay his fines, costs, and fees as directed; failed to report to

probation as directed; failed to pay probation fees; failed to notify the sheriff and his probation

officer of his current address and employment; and departed from his approved residence

without permission. After a hearing, the trial court revoked Boeta’s probation on the basis

of failure to pay fines, costs, and fees and failure to report to probation as directed. Boeta was Cite as 2014 Ark. App. 398

sentenced to three years’ imprisonment.

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, Boeta’s counsel has filed a motion to

withdraw on the grounds that the appeal is wholly 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 Boeta 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 Boeta with a copy

of his counsel’s brief and notified him of his right to file pro se points, but Boeta has not filed

any points.

The sole adverse ruling was the revocation of Boeta’s probation. A sentence of

probation may be revoked when a trial court finds by a preponderance of the evidence that

the defendant has inexcusably failed to comply with a condition of probation. Aikens v. State,

2014 Ark. App. 168. The appellate courts will not reverse a revocation unless the decision

is clearly against the preponderance of the evidence, Denson v. State, 2012 Ark. App. 105, and

deference is given to the trial court’s superior position to determine credibility and the weight

to be accorded testimony. Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005). The

State need only show that the defendant committed one violation to sustain a revocation.

Maxwell v. State, 2010 Ark. App. 822.

Jennifer Miller, Boeta’s current probation officer, testified that Boeta had failed to

report from November 2012 to March 2013, although she had sent letters directing him to

2 Cite as 2014 Ark. App. 398

report and had attempted to perform a home visit. She asserted that she had exhausted her

ability to supervise Boeta when she wrote his violation report in March 2013 because she

could not get him to report. In his own testimony, Boeta admitted he had not reported,

giving the excuse that he had “dirty” urine. Clearly, this testimony is sufficient to support the

trial court’s finding that Boeta had inexcusably violated the reporting requirement of the terms

of his probation. Because there is sufficient evidence to revoke Boeta’s probation on this

basis, it is unnecessary to discuss Boeta’s failure to pay his fine, costs, and fees.

From a review of the record and the brief presented to this court, Boeta’s counsel has

complied with the requirements of Rule 4-3(k) of the Rules of the Arkansas Supreme Court

and Court of Appeals. Boeta’s revocation is affirmed, and counsel’s motion to be relieved is

granted.

Affirmed; motion to be relieved granted.

WALMSLEY and VAUGHT, JJ., agree.

C. Brian Williams, for appellant.

No response.