Brian Lauer v. State of Arkansas

2021 Ark. App. 135, 620 S.W.3d 197

• Court: Court of Appeals of Arkansas
• Decided: March 31, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 135 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION IV 2023.06.23 10:38:26 -05'00' No. CR-20-56 2023.001.20174 BRIAN LAUER Opinion Delivered: March 31, 2021

APPELLANT APPEAL FROM THE MILLER V. COUNTY CIRCUIT COURT [NO. 46CR-18-278] STATE OF ARKANSAS APPELLEE HONORABLE KIRK JOHNSON, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

BART F. VIRDEN, Judge

This no-merit appeal stems from the Miller County Circuit Court’s revocation of

Brian Lauer’s probation. Our court previously ordered rebriefing in this matter due to

counsel’s failure to include the original sentencing order in both the record and the

addendum. 1 See Lauer v. State, 2020 Ark. App. 380. The deficiency has now been corrected.

On April 30, 2018, Lauer was charged with one count of second-degree battery. He

pleaded guilty to second-degree battery and was sentenced to six years’ suspended

imposition of sentence. Lauer was ordered to pay fines, costs, and restitution and to have no

contact with the victim. On October 30, 2018, the State filed a petition to revoke Lauer’s

probation because he failed to pay his court-ordered fines, costs, and fees and failed to report

1 Arkansas Supreme Court Rule 4-2(a)(8) requires that the addendum to a no-merit brief include all documents essential to the appellate court’s resolution of the issues on appeal. to his probation officer and report a change of address. On April 2, 2019, Lauer’s probation

was, after revocation, reinstated with a sixty-day jail sanction.

On June 10, 2019, the State filed a second petition to revoke Lauer’s probation

alleging that he had violated the conditions thereof by failing to report for scheduled office

visits, provide his probation officer with his address, and pay court-ordered fines, costs, and

fees.

At a revocation hearing held on October 1, 2019, Tyshique Meadows, a probation

officer with the Department of Community Correction, testified that Lauer had failed to

report for scheduled office visits and did not live at the address he provided. She explained

that she conducted a home visit at Lauer’s last known address, Randy Sams Shelter, and the

staff informed her that Lauer did not live there. Meadows explained that Lauer had not paid

his fines, costs, and fees as ordered, and when he was offered community service to work

off the arrearage, he did not show up. Meadows opined that Lauer would likely violate the

terms of his probation again.

Lauer explained that the probation officer had gone to the wrong location to do the

residence check, testifying that he lived next door to the location she checked. Regarding

his failure to report, Lauer testified that he reported to his probation office, but the officer

was not in. He also testified that he was told that he would be doing community service in

lieu of fines. Lauer explained that after he was transferred to community service, he filled

out monthly reports as directed by someone named Levisar and that “[he had] been

reporting to a different officer.”

2 Probation officer Jo Frederickson testified that Lauer violated his probation and

opined that it was likely he would continue to do so. Frederickson explained that she had

“never had anybody in that office by that name [Levisar]” who was in charge of community

service.

The circuit court found that Lauer’s testimony was not credible and that he had

violated the conditions of his probation by failing to report, giving an incorrect place of

residence, and failing to pay his fines or perform community service. The court revoked his

probation and sentenced him to six years in the Arkansas Department of Correction.

Pursuant to Arkansas Supreme Court Rule 4-3(k) and Anders v. California, 386 U.S.

738 (1967), Lauer’s counsel has filed a motion to withdraw stating that there is no merit to

an appeal. The motion is accompanied by an abstract and addendum of the proceedings

below and a brief in which counsel explains why there is nothing in the record that would

support an appeal. The clerk of this court served Lauer with a copy of counsel’s brief and

notified him of his right to file a pro se statement of points for reversal within thirty days,

but he has not done so.

In this case, counsel correctly notes that the only adverse ruling was the revocation

of Lauer’s probation, and he has adequately explained why there is no merit to an appeal of

the decision. To revoke probation, the State must prove by a preponderance of the evidence

that the defendant violated a condition of his or her probation. McKinney v. State, 2020 Ark.

App. 473, 612 S.W.3d 172. The State need only prove one violation. Peals v. State, 2015

Ark. App. 1, 453 S.W.3d 151. Here, Officer Meadows testified that Lauer failed to provide

3 his correct address in violation of a condition of his probation and that he did not report to

his probation officer as ordered. Meadows also testified that Lauer failed to pay his

probation-supervision fees and his fines, fees, and costs. Though Lauer offered explanations

for his failure to comply with the conditions of his probation, the circuit court did not find

Lauer’s testimony credible, and Frederickson directly contradicted Lauer’s testimony

regarding the community-service officer he stated that he reported to. We hold that there

would be no merit to an appeal of the sufficiency of the evidence supporting the revocation.

From our review of the record and the brief presented to the court, we find

compliance with Rule 4-3(k) and hold that the appeal is without merit. We grant counsel’s

motion to withdraw and affirm the revocation.

Affirmed; motion to withdraw granted.

GLADWIN and WHITEAKER, JJ., agree.

Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.

One brief only.