Coleman v. State

2014 Ark. App. 35

• Court: Court of Appeals of Arkansas
• Decided: January 15, 2014
• Docket: CR-13-432
• Status: Published

Opinion

Cite as 2014 Ark. App. 35

ARKANSAS COURT OF APPEALS DIVISION II No. CR-13-432

ROBERT COLEMAN Opinion Delivered January 15, 2014 APPELLANT APPEAL FROM THE CRITTENDEN V. COUNTY CIRCUIT COURT [NO. CR-201-1002]

STATE OF ARKANSAS HONORABLE RALPH WILSON, JR., APPELLEE JUDGE

REVOCATION AFFIRMED; MOTION TO WITHDRAW GRANTED

DAVID M. GLOVER, Judge

Robert Coleman pleaded guilty to terroristic threatening, a Class D felony, on January

21, 2011. He was placed on five years’ supervised probation. The State filed a petition for

revocation of probation on January 8, 2013. After a hearing on March 4, 2013, the circuit

court revoked Coleman’s probation on two specific bases. Upon revocation, Coleman was

sentenced to six years in the Arkansas Department of Correction. This appeal followed.

Coleman’s counsel has filed a motion to withdraw on the grounds that the appeal is

wholly without merit.1 Counsel’s motion was accompanied by a brief referring to everything

in the record that might arguably support an appeal, including a list of all rulings adverse to

Coleman made by the trial court on all objections, motions, and requests made by either

1 We note that while counsel still fails to cite Anders v. California, 386 U.S. 738 (1967), in his brief, he has cited Rule 4-3(k) of the Arkansas Rules of the Supreme Court and Court of Appeals, which sets forth the framework for no-merit appeals. Cite as 2014 Ark. App. 35

party, with an explanation as to why each adverse ruling is not a meritorious ground for

reversal. The clerk of our court furnished Coleman with a copy of his counsel’s brief and

notified him of his right to file pro se points; Coleman has not filed any points.

The trial court revoked Coleman’s probation on two bases—failure to pay probation

fees and the fact that he had not lived a law-abiding life and had violated state laws by

committing the offense of first-degree terroristic threatening. A sentence of probation may

be revoked when a trial court finds by a preponderance of the evidence that the defendant has

inexcusably failed to comply with a condition of probation. Denson v. State, 2012 Ark. App.

105. The State need only show that the defendant committed one violation to sustain a

revocation. Maxwell v. State, 2010 Ark. App. 822. Great deference is given to the trial court

in determining the preponderance of the evidence because the trial judge is in a superior

position to determine the credibility of witnesses and to determine the weight to be given to

their testimony. Denson, supra. The appellate courts will not reverse a revocation unless the

decision is clearly against the preponderance of the evidence. Denson, supra.

Testimony was presented at the revocation hearing by Constance Brown, an employee

of the Arkansas Department of Community Correction, that Coleman owed $70 in probation

fees for December 2012 and January 2013. Coleman did not testify. Where the alleged

violation is the failure to make payments as ordered, the State has the burden of proving by

a preponderance of the evidence that the failure to pay was inexcusable; that burden does not

shift from the State. Bohlman v. State, 2013 Ark. App. 162. But once the State has introduced

evidence of nonpayment, the burden of going forward does shift to the defendant to offer

2 Cite as 2014 Ark. App. 35

some reasonable excuse for the failure to pay. Id. Here, Coleman offered no explanation as

to why he had not paid his probation fees for December 2012 and January 2013. Therefore,

the trial court properly revoked his probation on this basis, and because the State need only

show one violation to support the revocation of a defendant’s probation, there is sufficient

evidence to support Coleman’s revocation of his probation on this basis alone.

Coleman’s counsel properly discusses the second basis on which the trial court revoked

Coleman’s probation—the finding, by a preponderance of the evidence, that he had

committed the offense of first-degree terroristic threatening. His counsel also discusses the

only other adverse ruling made at the hearing, an evidentiary objection concerning the

authenticity of the texts that formed the basis for the terroristic threatening. He then sets

forth the reasons why neither of these adverse rulings constitute reversible error. Indeed, they

cannot constitute reversible error because a separate, alternative basis for the revocation exists,

and the State need only prove one violation to sustain the revocation.

From a review of the record and the brief presented to our court, Coleman’s counsel

has complied with the requirements of Rule 4-3(k) of the Arkansas Rules of the Supreme

Court and the Court of Appeals. His counsel’s motion to be relieved is granted and

Coleman’s revocation is affirmed.

Revocation affirmed; motion to withdraw granted.

WALMSLEY and VAUGHT, JJ., agree.

C. Brian Williams, for appellant.

No response.