DEMORCUS L. SMITH v. STATE OF ARKANSAS

2019 Ark. App. 401

Opinion

Cite as 2019 Ark. App. 401 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.26 13:37:15 DIVISION IV -05'00' No. CR-18-925 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: September 25, 2019 DEMORCUS L. SMITH APPELLANT APPEAL FROM THE ASHLEY V. COUNTY CIRCUIT COURT [NO. 02CR-14-98] STATE OF ARKANSAS APPELLEE HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

RITA W. GRUBER, Chief Judge

This case has returned to us after rebriefing. It is a companion case to Smith v. State,

2019 Ark. App. 400 (case No. CR-18-897), also handed down today. Both are no-merit

appeals from orders of revocation of probation entered on July 10, 2018. The court held

one hearing for both cases. In this case, the Ashley County Circuit Court revoked Demorcus

Smith’s probation from an underlying conviction entered on a plea of guilty to second-

degree sexual assault on December 9, 2014.

Pursuant to Arkansas Supreme Court Rule 4-3(k) and Anders v. California, 386 U.S.

738 (1967), Smith’s attorney has filed a motion to withdraw stating that there is no merit to

an appeal. The motion is accompanied by an abstract and addendum of the proceedings

below and a brief in which counsel explains why there is nothing in the record that would

support an appeal. The clerk of this court served Smith with a copy of counsel’s brief and notified him of his right to file a pro se statement of points for reversal within thirty days;

he has not filed a statement. We affirm the conviction and grant counsel’s motion to

withdraw.

Counsel has briefed the only adverse ruling, sufficiency of the evidence to support

the revocation. Smith pleaded guilty to the underlying charge of second-degree sexual

assault, and an order was entered on that plea on December 9, 2014, placing him on

probation for a period of sixty months. A petition to revoke was filed in 2017 for committing

the offenses of failure to register as a sex offender; testing positive for drugs; failure to report

as directed; and failure to pay fines, costs, and fees as ordered. On September 12, 2017, the

court entered an order finding that Smith had admitted violating the conditions of his

probation and extending his probation for an additional seventy-two months, ending

September 5, 2023.

This appeal is from an order entered after a second petition to revoke was filed on

February 27, 2018. In the second petition, the State alleged that Smith had violated the

conditions of his probation by failing to report to his probation officer as directed and by

not remaining current on the payment of fines, fees, and costs.

The court held a hearing on July 9, 2018. Smith’s probation officer testified that

Smith had failed to meet with her as directed in September, November, twice in December,

and not at all after the violation report was filed in January 2018, seven months before the

hearing. Smith admitted on the stand that his probation officer was correct about his failure

to meet with her, but he explained that he had been sick, had been busy with work, and

had left two messages with his probation officer to reschedule, but she had not returned his

2 calls. He explained that he had not understood how his failure to report could affect him or

that he could go to prison. He testified that he was a good person and did not deserve to go

to jail. His aunt testified that she did not think Smith was able to “understand the seriousness

of the matter.”

The court found Smith had violated the terms and conditions of his probation by

willfully failing to report, noting he had already been revoked for the same type of violation

in 2017 and been given probation. The court entered an order revoking his probation on

July 10, 2018, sentencing him to eight years in prison. 1

Probation may be revoked upon a finding by a preponderance of the evidence that

the defendant has inexcusably failed to comply with a condition of the probation. Vail v.

State, 2014 Ark. App. 407, 438 S.W.3d 286. The State bears the burden of proof but need

only prove that the defendant committed one violation of the conditions. Richardson v. State,

85 Ark. App. 347, 157 S.W.3d 536 (2004). We will not overturn a circuit court’s decision

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

State, 2015 Ark. App. 17, at 4, 453 S.W.3d 690, 693. In the present case, Smith admitted

the violations testified to by his probation officer.

From our review of the record and the brief presented to us, we hold that counsel

has complied with Anders and Rule 4-3(k) and hold that there is no merit to an appeal.

Accordingly, we affirm Smith’s conviction and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

1 The order provides that the sentence runs concurrently with the eight-year term of imprisonment imposed the same day in Smith v. State, 2019 Ark. App. 400.

3 HARRISON and MURPHY, JJ., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

One brief only.