Cantu v. State

2015 Ark. App. 21

• Court: Court of Appeals of Arkansas
• Decided: January 21, 2015
• Docket: CR-13-1091
• Status: Published

Opinion

2015 Ark. App. 21

reNSAS COURT OF APPEALS DIVISION II No. CR-13-1 091

Opinion Delivered JANUARY 2'1,, 201,5

RODRIGO CANTU APPEAL FROM THE CRITTENDEN APPELLANT COUNTY CIRCUIT COURT [NO. CR-10-951]

HONORABLEJOHN N. FOGLEIVIAN, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; MOTION GRANTET)

KENNETH S. HIXSON, Judge

Appellant Rodrigo Cantu pleaded guilry to Ewo counts of Class B felony forgery on

August 27,2070, and he was placed on three years' probation. On September 10, 2072, the

State filed a petition to revoke Mr. Cantu's probation, alleging multiple violations including

failure to report to probation as directed. After a hearing, the trial court entered an order on

September 3,2073, revoking appellant's probation and sentencing him to five years in prison

followed by a ten-year suspended imposition ofsentence. Mr. Cantu now appeals from his

revocation, and we affirm.

Pursuant to Anders u. California,3S6 U.S. 738 (1,967), and Rule 4-3(kX1) ofthe Rules

of the Arkansas Supreme Court, appellant's counsel has filed a motion to withdraw on

the grounds that the appeal is wholly without merit. Mr. Cantu's counsel's motion was

accompanied by a brief discussing all matters in the record that might arguably support 2015 Ark. App. 21

an appeal, including any objections and motions made by appellant and denied by the trial

court, and a statement ofthe reason why each point raised cannot arguably support an appeal.

Mr. Cantu was provided a copy of his counsel's brief and notified of his right to file pro se

points for reversal, but he has not filed any points.

Mr. Cantu's conditions of probation required him to report to probation as directed.

Michael Alston, appellant's probation officer, testified that Mr. Cantu had reported to

probation only once during the past year. Mr. Alston acknowledged in his testimony that he

had failed to report to probation as directed, and he provided no excuse for missing his

scheduled visits. The trial couft revoked Mr. Cantu's probation based on his failure to report.

Arkansas Code Annotated section 16-93-308(d) (Supp. 2013) provides that, if a court

finds by a preponderance of the evidence that the defendant has inexcusably failed to comply

with a condition of probation, the court may revoke the probation at any rime prior to the

expiration of the probarion. A court may revoke probation subsequent to the expiration of

the period of probation if, before expiration of the period, the defendant is arrested for the

probation violation. Ark. Code Ann. $ 16-93-308(0(1).' On appeal, the trial court's decision

will not be reversed unless it is clearly against the preponderance of the evidence. May u.

State,2014 Ark. App. 365.

lAlthough Mr. Cantu's probation was revoked one week after the original probation period would have expired, his counsel points out in his brief that Mr. Cantu was arrested for the probation violation before the probation expired. Therefore, the trial court had jurisdiction to revoke appellant's probation. 2015 Ark. App. 21

In the present appeal, the only advene ruling was the trial court's decision to revoke

appellant's probation, and appellant's counsel accurately asserts that there can be no

meritorious challenge to the sufficiency of the evidence suppofting revocation. The State

clearly demonstrated that Mr. Cantu had failed to report as directed to probation, and

Mr. Canru provided no reasonable excuse for his failure to report. Therefore, the trial court's

decision to revoke appellant's probation was not clearly against the preponderance of the

evidence.

Based on our review of the record and the briefpresented, we conclude that there has

been compliance with Rule 4-3(kX1) and that the appeal is without merit. Consequently,

appellant's counsel's motion to be relieved is granted and the judgment is affirmed.

Affirmed; motion ganted.

Glno'vnN, CJ., and WHITEAKER, J., agree.