Cecil J. Sixkiller v. State of Arkansas

2024 Ark. App. 33

• Court: Court of Appeals of Arkansas
• Decided: January 17, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 33 ARKANSAS COURT OF APPEALS DIVISION III No. CR-23-266

CECIL J. SIXKILLER Opinion Delivered January 17, 2024 APPELLANT

V. APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-18-2470] STATE OF ARKANSAS APPELLEE HONORABLE BRADLEY KARREN, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

MIKE MURPHY, Judge

Appellant Cecil Sixkiller appeals the Benton County Circuit Court’s revocation of

his suspended sentence. His counsel has filed a no-merit brief and a motion to be relieved

pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-

3(b), stating that there are no meritorious grounds to support an appeal. Sixkiller was

provided a copy of his counsel’s brief and motion, but he did not file any pro se points for

reversal; thus, the State did not file a reply brief. We affirm and grant counsel’s motion to

be relieved.

In April 2019, Sixkiller pleaded guilty to theft of property and was placed on

probation for a period of five years. On February 13, 2020, a petition for revocation was

filed. That petition was amended five times. The fifth amended petition for revocation alleged Sixkiller had violated the terms of probation by failing to report for office visits;

changing his place of residence without permission; failing to pay Arkansas Community

Correction fees; failing to complete an evaluation; failing to pay court fines and fees;

committing new offenses; failing to report after being released; and failure to appear.

On September 15, 2022, a revocation hearing was held. Kris Eglin, a probation and

parole agent for the Department of Community Correction, testified that Sixkiller failed to

report on January 6, 2020. Eglin testified that he was unable to locate Sixkiller and that his

whereabouts were unknown after he failed to report. Specifically, he testified Sixkiller

reported five times in three years and that he has been in and out of custody at least fourteen

times. Additionally, Eglin testified that Sixkiller’s fees were in arrears.

Sixkiller testified and admitted that he had failed to report but asked for leniency

because of his truthfulness.

At the conclusion of the hearing, the trial court revoked Sixkiller’s probation by

finding that the State had met its burden by a preponderance of the evidence. The court

sentenced Sixkiller to forty-six months in the Arkansas Department of Correction with

twenty-four months suspended and 185 days jail credit. This no-merit appeal followed.

A request to withdraw on the ground that the appeal is wholly without merit must be

accompanied by a brief containing an argument section that consists of a list of all rulings

adverse to the defendant made by the circuit 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. Ark. Sup. Ct. R. 4-3(b)(1). A no-merit brief in a criminal case that fails

2 to address an adverse ruling does not satisfy the requirements of Rule 4-3(b)(1), and

rebriefing will be required. Moore v. State, 2022 Ark. App. 5. The requirement for 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. Stephenson v. State, 2023 Ark. App. 453.

Counsel contends that there are no issues of merit to support an appeal and has

adequately explained why an appeal would be wholly frivolous. We first address whether the

evidence was sufficient to support the revocation. To revoke probation, the circuit court

must find by a preponderance of the evidence that the defendant has inexcusably failed to

comply with a condition of the probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2021). We

do not reverse a circuit court’s decision to revoke unless it is clearly against the

preponderance of the evidence. Garrin v. State, 2022 Ark. App. 342, at 3–4, 652 S.W.3d 608,

610. Because the burdens of proof are different, evidence that is insufficient for a criminal

conviction may be sufficient for a revocation. Id. Since determinations of a preponderance

of the evidence turn on questions of credibility and weight to be given testimony, we defer

to the circuit court’s superior position. Id.

A condition of Sixkiller’s probation was to report as directed to a supervising officer.

Eglin testified that Sixkiller reported only five times in three years, and Sixkiller admitted he

had violated that condition of his probation. Therefore, 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 us, we find compliance with Anders and Rule

3 4-3 and hold that the appeal is wholly without merit. Accordingly, we grant counsel’s motion

to withdraw and affirm the revocation of Sixkiller’s probation.

Affirmed; motion to withdraw granted.

BARRETT and BROWN, JJ., agree.

Eric Moore, for appellant.

One brief only.