Brittnie Renee Lee v. State of Arkansas

2022 Ark. App. 1

• Court: Court of Appeals of Arkansas
• Decided: January 12, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 1 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION I 2023.08.09 11:43:33 -05'00' No. CR-20-650 2023.003.20244 Opinion Delivered January 12, 2022

BRITTNIE RENEE LEE APPEAL FROM THE CRITTENDEN APPELLANT COUNTY CIRCUIT COURT [NO. 18CR-13-252] V. HONORABLE KEITH STATE OF ARKANSAS CHRESTMAN, JUDGE APPELLEE REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED

BRANDON J. HARRISON, Chief Judge

The Crittenden County Circuit Court found that Brittnie Lee had violated the terms

and conditions of her probation and sentenced her to five years’ imprisonment and five

years’ suspended imposition of sentence (SIS). On appeal, Lee’s counsel argues that there

are no meritorious grounds for appeal and asks for permission to withdraw as counsel. We

deny the motion to withdraw and order rebriefing.

In February 2014, Lee pled guilty to aggravated assault and fleeing, and she was

sentenced to six years’ probation. In June 2019, the State petitioned to revoke Lee’s

probation, alleging that she had violated the terms and conditions of her probation by failing

to pay fines, costs, restitution, and fees as directed; failing to report to probation as directed;

failing to pay probation fees; failing to notify probation of her current address and

employment; and failing to live a law-abiding life, be of good behavior, and not violate any

1 state, federal, or municipal law.

The circuit court convened a revocation hearing on 2 July 2020. Shantina Carney,

Lee’s probation officer, testified that she (Carney) submitted a violation report on Lee after

she failed to report, failed to call in, and did not respond to any of Carney’s messages.

Carney said that she met with Lee and her husband in September 2019 after Lee had served

a jail sentence in Mississippi, and that she explained to Lee the conditions of probation and

how to begin the process of transferring her supervision to Mississippi. Lee agreed but then

stopped reporting in January 2020. Carney said that Lee owed supervision fees and had not

paid the $100 fee to transfer supervision to Mississippi. Carney also confirmed that Lee was

unemployed and that she (Carney) had no evidence that Lee had sought employment.

Patricia Joplin, the custodian for payment-plan records for the sheriff’s department, testified

that Lee had made no payments and that her outstanding balance was $2,830.

Lee testified and agreed that she had been placed on probation in 2014. She then

pled guilty to a charge in Mississippi and served five years. After her release in 2019, she

contacted her Arkansas probation officer “as much as [she] could,” but she had

“transportation problems” and trouble finding work. She testified that she continued to live

with her husband and child at the address in Mississippi that she provided to Carney. On

cross-examination, Lee said that Carney had “mentioned” transferring supervision to

Mississippi but had never provided her (Lee) with any paperwork or “pushed the issue.”

Lee agreed it was her responsibility to make sure she was following the rules and that she

had not done that. She also agreed that she had called Carney only once, in November

2019, and that she had not kept up with what she owed in fines and costs. Lee told the

2 court that she had earned $300 babysitting but had otherwise not been successful in finding

employment.

From the bench, the circuit court found that Lee had violated the terms and

conditions of her probation by failing to pay fines and courts costs, failing to procure suitable

employment despite her proximity to a large city (Memphis), failing to pay the $100 transfer

fee that she knew was required, and failing to report or otherwise contact her probation

officer. The circuit court sentenced Lee to five years’ imprisonment followed by five years’

SIS. This timely appeal followed.

Lee’s attorney has filed a no-merit brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Ark. Sup. Ct. R. 4-3(b)(1) (2021), along with a motion to be relieved as

counsel, asserting that there is no issue of arguable merit for an appeal. Lee was notified,

via certified mail, of her right to file pro se points for reversal but has not done so. The

State has not filed a brief.

In probation-revocation proceedings, the State has the burden of proving that a

probationer violated the terms of his or her probation as alleged in the revocation petition

by a preponderance of the evidence, and we will not reverse the circuit court’s decision to

revoke probation unless it is clearly against the preponderance of the evidence. Dawson v.

State, 2016 Ark. App. 558. The State need only show that the appellant committed one

violation to sustain a revocation. Id.

Rule 4-3(b)(1) requires the argument section of a no-merit brief to contain “a list of

all rulings adverse to the defendant made by the circuit court on all objections, motions and

requests . . . with an explanation as to why each . . . is not a meritorious ground for reversal.”

3 The requirement for abstracting and briefing every adverse ruling ensures that the due-

process concerns in Anders are met and prevents the unnecessary risk of a deficient Anders

brief resulting in an incorrect decision on counsel’s motion to withdraw. Vail v. State, 2019

Ark. App. 8. 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.

T.S. v. State, 2017 Ark. App. 578, 534 S.W.3d 160. Pursuant to Anders, we are required to

determine whether the case is wholly frivolous after a full examination of all the proceedings.

Id. A no-merit brief in a criminal case that fails to address an adverse ruling does not satisfy

the requirements of Rule 4-3(b)(1), and rebriefing will be required. See Vail, supra.

In his argument, counsel explains that there was sufficient evidence to support the

revocation. The evidence showed that Lee had not made payments as required, and she

offered no reasonable excuse for her failure to pay. The evidence also showed that Lee was

aware of her duty to report and to pay a transfer fee, but she had offered no reasonable

excuse for her failure to do so. Counsel asserts that the circuit court should be “affirmed as

modified.” (Counsel does not explain what modification is necessary.)

While counsel has adequately addressed the grounds for revocation, he has failed to

address a request made by defense counsel that was denied by the circuit court. During

closing arguments, and again prior to sentencing, defense counsel asked that Lee be given

additional probation or a suspended imposition of sentence and “take her at her word that

she can get this $2,830 paid off.” The circuit court denied the request, stating, “I’m not

going to impose additional probation because that hasn’t worked.” Because counsel has not

explained why this adverse ruling is not a meritorious ground for reversal, we order

4 rebriefing and deny the motion to withdraw.

Counsel should carefully examine the record and review the rules before filing a

substituted brief within fifteen days of this opinion. If a no-merit brief is filed, counsel’s

motion and brief will be forwarded by this court’s clerk to Lee so that she can raise any

points she chooses. The Attorney General’s Office will also be given the opportunity to file

a responsive brief for the State if it so chooses.

Rebriefing ordered; motion to withdraw denied.

VAUGHT and BROWN, JJ., agree.

C. Brian Williams, for appellant.

One brief only.