Cite as 2021 Ark. App. 278 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION II 2023.06.28 15:01:58 -05'00' No. CR-20-457 2023.001.20174 Opinion Delivered June 2, 2021 CHARLES GRUNENBURG
APPELLANT APPEAL FROM THE MILLER COUNTY CIRCUIT COURT V. [NO. 46CR-15-224 ]
STATE OF ARKANSAS HONORABLE KIRK JOHNSON, APPELLEE JUDGE AFFIRMED; MOTION TO WITHDRAW GRANTED
BART F. VIRDEN, Judge
This is a no-merit appeal filed on behalf of Charles Grunenburg following the Miller
County Circuit Court’s revocation of his suspended sentence. Grunenburg’s counsel filed a
timely notice of appeal followed by a no-merit brief pursuant to Anders v. California, 386
U.S. 738 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(k)
(2018), along with a motion to be relieved as counsel, asserting that there is no issue of
arguable merit on appeal. Under Anders, counsel seeking to withdraw from representation
must satisfy this court that he or she has thoroughly reviewed the record for appealable issues
and explain why any potential issue is frivolous for appellate purposes. This court’s review
when counsel submits an Anders brief is twofold. We ask whether counsel adequately
fulfilled the requirements and whether an independent review of the record presents any
nonfrivolous issues. Walton v. State, 94 Ark. App. 229, 231, 228 S.W.3d 524, 526 (2006). The clerk of this court served Grunenburg with a copy of his counsel’s brief and notified
him of his right to file a pro se statement of points for reversal. He has not done so. We
affirm and grant counsel’s motion to withdraw.
On May 26, 2015, Grunenburg pled guilty to felony aggravated assault and was
sentenced to four years’ probation and ordered to pay fines, fees, and costs at a rate of sixty
dollars a month. On February 4, 2016, the State filed a petition to revoke Grunenburg’s
probation alleging that (1) Grunenburg was arrested for public intoxication, (2) he failed to
report to his probation officer and his substance-abuse counselor, (3) he did not notify his
probation officer of his address, and (4) he had not paid court-ordered costs and fees.
Grunenburg pled “true” to the allegations. On March 30, Grunenburg’s probation was
reinstated with a ninety-day jail sanction and additional costs.
On September 20, the State filed a second petition for revocation for failure to report
to his probation officer; leaving the state without permission; and failure to pay court costs,
fines, and fees. Grunenburg pled true, and on November 10, his probation was revoked and
he was sentenced to four years’ incarceration in the Arkansas Department of Correction
(ADC) with two years’ suspended imposition of sentence. Additional court costs were
assessed. Grunenburg’s suspended sentence commenced upon his release on April 7, 2017.
On October 10, 2018, the State filed a third petition to revoke. The State contended
that Grunenburg had failed to pay fines, costs, and fees and that he had picked up the
following new criminal charges:
-December 1, 2017, disorderly conduct
-May 5, 2018, public intoxication
2 -July 23, disorderly conduct and public intoxication
-September 6, possession of an instrument of crime and criminal mischief
-September 19, active felony warrant for second-degree forgery
On April 21, 2020, the court held a revocation hearing at which Grunenburg did
not testify because he had another case pending. Charnell Huff, Grunenburg’s probation
officer, testified that on October 10, 2018, she received notification that between December
2017 and September 2018, Grunenburg had been arrested six times for the charges set forth
above. Huff stated that Grunenburg had not paid any of the court-ordered fines, fees, or
costs, and he owed approximately $3070. In response to this report, Huff prepared the
petition to revoke Grunenburg’s probation. Bethany Frederickson, the Miller County
deputy circuit clerk, testified that on October 21, 2019, Grunenburg paid $150 toward his
financial obligations and that he owes $3100.
In an order entered April 23, 2020, the court found that Grunenburg had violated
the terms and conditions of his probation by committing new criminal violations and failing
to pay costs, fines, and fees. The circuit court determined that Grunenburg would not
conform his behavior to the requirements of the law and revoked his suspended sentence.
Grunenburg was sentenced to two years’ imprisonment in the ADC and assessed additional
costs and fees. This no-merit appeal follows.
We are satisfied that counsel has demonstrated there is no nonfrivolous argument
that could serve as the basis for an appeal regarding the sufficiency of the State’s evidence
against Grunenburg. The State’s burden of proof in a revocation proceeding is less than is
required to convict in a criminal trial, and evidence insufficient for a conviction at a criminal
3 trial may be sufficient for revocation. Collins v. State, 2018 Ark. App. 563, at 2, 566 S.W.3d
139, 140. When the sufficiency of the evidence is challenged on appeal from an order of
revocation, the circuit court’s decision will not be reversed unless it is clearly against a
preponderance of the evidence. Id. The appellate court defers to the circuit court’s superior
position in evaluating the credibility and weight to be given testimony. Id.
Here, witnesses presented undisputed evidence that Grunenburg made one $150
payment toward his court-ordered financial obligations and was arrested several times during
his probationary period. If the alleged violation involves the failure to pay court-ordered
fines and costs, the court may revoke the suspended sentence if it finds the defendant has
failed to make a good-faith effort to pay the obligation. Thompson v. State, 2009 Ark. App.
620. While the State has the burden of proving that the failure to pay is inexcusable, once
the State has introduced evidence of nonpayment, the burden shifts to the defendant to
provide a reasonable excuse for his or her failure to pay. Id. Grunenburg did not present
evidence that his failure to pay fines was excusable. Counsel argued during closing argument
that Grunenburg was “constantly” incarcerated and caught in a “vicious cycle”; however,
our review of the record does not confirm this statement. Grunenburg’s myriad arrests
demonstrate that, in fact, he was released from incarceration multiple times such that he
committed new crimes and was arrested again. Moreover, Grunenburg did not challenge
the fact that he committed new crimes while on probation. We affirm as to the sufficiency
of the evidence that Grunenburg inexcusably failed to pay his financial obligations, and he
committed new criminal violations.
4 Aside from the revocation of Grunenburg’s suspended sentence, counsel addresses
the remaining four rulings adverse to Grunenburg. First, counsel addresses the court’s
rejection of Grunenburg’s counsel’s closing-argument statement during the hearing that the
court should have held the revocation hearing in 2018. As counsel asserts, the record does
not contain any objection to the delay of his revocation hearing; thus, Grunenburg waived
his objection to any time delay. We have held that the sixty-day limitation pertaining to
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Cite as 2021 Ark. App. 278 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION II 2023.06.28 15:01:58 -05'00' No. CR-20-457 2023.001.20174 Opinion Delivered June 2, 2021 CHARLES GRUNENBURG
APPELLANT APPEAL FROM THE MILLER COUNTY CIRCUIT COURT V. [NO. 46CR-15-224 ]
STATE OF ARKANSAS HONORABLE KIRK JOHNSON, APPELLEE JUDGE AFFIRMED; MOTION TO WITHDRAW GRANTED
BART F. VIRDEN, Judge
This is a no-merit appeal filed on behalf of Charles Grunenburg following the Miller
County Circuit Court’s revocation of his suspended sentence. Grunenburg’s counsel filed a
timely notice of appeal followed by a no-merit brief pursuant to Anders v. California, 386
U.S. 738 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(k)
(2018), along with a motion to be relieved as counsel, asserting that there is no issue of
arguable merit on appeal. Under Anders, counsel seeking to withdraw from representation
must satisfy this court that he or she has thoroughly reviewed the record for appealable issues
and explain why any potential issue is frivolous for appellate purposes. This court’s review
when counsel submits an Anders brief is twofold. We ask whether counsel adequately
fulfilled the requirements and whether an independent review of the record presents any
nonfrivolous issues. Walton v. State, 94 Ark. App. 229, 231, 228 S.W.3d 524, 526 (2006). The clerk of this court served Grunenburg with a copy of his counsel’s brief and notified
him of his right to file a pro se statement of points for reversal. He has not done so. We
affirm and grant counsel’s motion to withdraw.
On May 26, 2015, Grunenburg pled guilty to felony aggravated assault and was
sentenced to four years’ probation and ordered to pay fines, fees, and costs at a rate of sixty
dollars a month. On February 4, 2016, the State filed a petition to revoke Grunenburg’s
probation alleging that (1) Grunenburg was arrested for public intoxication, (2) he failed to
report to his probation officer and his substance-abuse counselor, (3) he did not notify his
probation officer of his address, and (4) he had not paid court-ordered costs and fees.
Grunenburg pled “true” to the allegations. On March 30, Grunenburg’s probation was
reinstated with a ninety-day jail sanction and additional costs.
On September 20, the State filed a second petition for revocation for failure to report
to his probation officer; leaving the state without permission; and failure to pay court costs,
fines, and fees. Grunenburg pled true, and on November 10, his probation was revoked and
he was sentenced to four years’ incarceration in the Arkansas Department of Correction
(ADC) with two years’ suspended imposition of sentence. Additional court costs were
assessed. Grunenburg’s suspended sentence commenced upon his release on April 7, 2017.
On October 10, 2018, the State filed a third petition to revoke. The State contended
that Grunenburg had failed to pay fines, costs, and fees and that he had picked up the
following new criminal charges:
-December 1, 2017, disorderly conduct
-May 5, 2018, public intoxication
2 -July 23, disorderly conduct and public intoxication
-September 6, possession of an instrument of crime and criminal mischief
-September 19, active felony warrant for second-degree forgery
On April 21, 2020, the court held a revocation hearing at which Grunenburg did
not testify because he had another case pending. Charnell Huff, Grunenburg’s probation
officer, testified that on October 10, 2018, she received notification that between December
2017 and September 2018, Grunenburg had been arrested six times for the charges set forth
above. Huff stated that Grunenburg had not paid any of the court-ordered fines, fees, or
costs, and he owed approximately $3070. In response to this report, Huff prepared the
petition to revoke Grunenburg’s probation. Bethany Frederickson, the Miller County
deputy circuit clerk, testified that on October 21, 2019, Grunenburg paid $150 toward his
financial obligations and that he owes $3100.
In an order entered April 23, 2020, the court found that Grunenburg had violated
the terms and conditions of his probation by committing new criminal violations and failing
to pay costs, fines, and fees. The circuit court determined that Grunenburg would not
conform his behavior to the requirements of the law and revoked his suspended sentence.
Grunenburg was sentenced to two years’ imprisonment in the ADC and assessed additional
costs and fees. This no-merit appeal follows.
We are satisfied that counsel has demonstrated there is no nonfrivolous argument
that could serve as the basis for an appeal regarding the sufficiency of the State’s evidence
against Grunenburg. The State’s burden of proof in a revocation proceeding is less than is
required to convict in a criminal trial, and evidence insufficient for a conviction at a criminal
3 trial may be sufficient for revocation. Collins v. State, 2018 Ark. App. 563, at 2, 566 S.W.3d
139, 140. When the sufficiency of the evidence is challenged on appeal from an order of
revocation, the circuit court’s decision will not be reversed unless it is clearly against a
preponderance of the evidence. Id. The appellate court defers to the circuit court’s superior
position in evaluating the credibility and weight to be given testimony. Id.
Here, witnesses presented undisputed evidence that Grunenburg made one $150
payment toward his court-ordered financial obligations and was arrested several times during
his probationary period. If the alleged violation involves the failure to pay court-ordered
fines and costs, the court may revoke the suspended sentence if it finds the defendant has
failed to make a good-faith effort to pay the obligation. Thompson v. State, 2009 Ark. App.
620. While the State has the burden of proving that the failure to pay is inexcusable, once
the State has introduced evidence of nonpayment, the burden shifts to the defendant to
provide a reasonable excuse for his or her failure to pay. Id. Grunenburg did not present
evidence that his failure to pay fines was excusable. Counsel argued during closing argument
that Grunenburg was “constantly” incarcerated and caught in a “vicious cycle”; however,
our review of the record does not confirm this statement. Grunenburg’s myriad arrests
demonstrate that, in fact, he was released from incarceration multiple times such that he
committed new crimes and was arrested again. Moreover, Grunenburg did not challenge
the fact that he committed new crimes while on probation. We affirm as to the sufficiency
of the evidence that Grunenburg inexcusably failed to pay his financial obligations, and he
committed new criminal violations.
4 Aside from the revocation of Grunenburg’s suspended sentence, counsel addresses
the remaining four rulings adverse to Grunenburg. First, counsel addresses the court’s
rejection of Grunenburg’s counsel’s closing-argument statement during the hearing that the
court should have held the revocation hearing in 2018. As counsel asserts, the record does
not contain any objection to the delay of his revocation hearing; thus, Grunenburg waived
his objection to any time delay. We have held that the sixty-day limitation pertaining to
revocation hearings is not jurisdictional; rather, it represents the period beyond which the
hearing cannot be delayed if the defendant objects. Jones v. State, 2012 Ark. App. 69, 388
S.W.3d 503. Thus, when the defendant does not object to the timeliness of the hearing
prior to the expiration of the sixty-day period, he waives his right to insist on a timely
hearing. Lane v. State, 2015 Ark. App. 672, at 5.
Second, counsel addresses Grunenburg’s request to make payments on his financial
obligations rather than have his probation revoked. As we discussed, Grunenburg presented
no evidence that his failure to pay fines was excusable, and for the reasons set out above,
this does not present a meritorious point for reversal.
Third, Grunenburg requested a minimum sentence, which the court denied.
Arkansas Code Annotated section 16-93-308(g)(1)(A) (Supp. 2019) provides that “[i]f a
court revokes a defendant’s suspension of sentence or probation, the court may enter a
judgment of conviction and may impose any sentence on the defendant that might have
been imposed originally for the offense of which he or she was found guilty.” The caveat
to the statute is that the sentence may not exceed the applicable statutory maximum when
combined with prior imprisonment for same offense. See Easley v. State, 2017 Ark. App.
5 317, at 4, 524 S.W.3d 412, 414. On May 26, 2015, Grunenburg pled guilty to aggravated
assault, a Class D felony, which is punishable by no more than six years’ incarceration. Ark.
Code Ann. § 5-4-401 (Repl. 2013). Though it is not entirely clear how much time
Grunenburg served on the original aggravated-assault charge, it is clear that he was
incarcerated less than four years; thus, the circuit court’s two-year sentence does not exceed
the statutory maximum, and the court’s refusal to impose a minimum sentence does not
present a meritorious ground for reversal.
Fourth, Grunenburg’s request to ask a question was denied. After the close of
evidence and sentencing, Grunenburg stated, “Your Honor, I have a question.” The court
denied Grunenburg’s request to ask a question, stating, “No. You should have asked to
speak during the hearing. I would’ve been happy to hear you, but the case is over at this
point.” Counsel did not object, and Grunenburg’s question was not proffered; thus, the
matter is not preserved for appeal. See Bohanon v. State, 2020 Ark. App. 22, at 5, 594 S.W.3d.
92, 96.
Counsel has addressed each of the rulings adverse to Grunenburg, and none presents
a nonfrivolous ground for an appeal.
Affirmed; motion to withdraw granted.
HARRISON, C.J., and KLAPPENBACH, J., agree.
Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.
One brief only.