Gatewood v. State

2014 Ark. App. 8

• Court: Court of Appeals of Arkansas
• Decided: January 8, 2014
• Docket: CR-13-61
• Status: Published

Opinion

Cite as 2014 Ark. App. 8

ARKANSAS COURT OF APPEALS DIVISION III No. CR-13-61

JEREMY JERMAINE GATEWOOD Opinion Delivered January 8, 2014 APPELLANT APPEAL FROM THE CRITTENDEN V. COUNTY CIRCUIT COURT [NOS. CR-2010-954, CR-2010-717]

STATE OF ARKANSAS HONORABLE RANDY F. APPELLEE PHILHOURS, JUDGE

AFFIRMED; MOTION GRANTED; REMANDED FOR CORRECTION OF SENTENCING ORDER

RITA W. GRUBER, Judge

On July 27, 2010, Jeremy Jermaine Gatewood pleaded guilty to breaking or entering

in CR-2010-717 and to residential burglary in CR-2010-954. He received a 72-month

suspended imposition of sentence (SIS) for CR-2010-717 and a 120-month SIS for CR-

2010-954, subject to specific written conditions. The State subsequently filed a petition to

revoke suspension, alleging that Gatewood violated conditions by failing to pay fines,

restitution, costs, and fees; failing to give notice of current address and employment; and

committing the offenses of residential burglary, theft of property, and criminal mischief.

At an August 27, 2012 revocation hearing, the court revoked SIS in each underlying

offense after finding by a preponderance of the evidence that Gatewood had violated

conditions by failing to pay and by committing the new offense of residential burglary in June

2012. A sentencing order of November 7, 2012, reflects that Gatewood was sentenced to 240 Cite as 2014 Ark. App. 8

months’ imprisonment for CR-2010-717 and a consecutive sentence of 72 months’ SIS for

CR-2010-954. As is allowed by Rule 4-3 of the Rules of the Arkansas Supreme Court and

Court of Appeals,1 Gatewood’s counsel has filed a no-merit brief and a motion to withdraw

on the ground that an appeal in this matter would be wholly without merit. Gatewood has

filed pro se points for reversal, and the State has responded to those points.

Gatewood contends that there was no reliable evidence that he violated conditions by

being involved in the new crime of residential burglary. He notes that his DNA was not

collected at the apartment of the victim, who came home at night to discover a motion-sensor

light unscrewed, the front-door lock broken and the door off its hinges, the back door

cracked open, and items missing. He argues that the victim, when questioned by the court,

second-guessed himself about knowing if the person he saw on the apartment’s surveillance

video was actually Gatewood. He asserts that Detective Harvey Taylor falsely testified that

Gatewood, when interviewed about the burglary, “admitted being involved by going in the

residence.” He complains that the parole officer who testified at the hearing had no

knowledge of Gatewood’s fines and fees. Finally, he complains that he was not shown a video

of himself breaking into the residence or unscrewing the motion light and that the only proof

was “still frames” that showed someone allegedly at the back of the residence.

In order to revoke suspension or probation, the trial court must find by a

1 In his motion to be relieved, counsel incorrectly cites Rule 4-3(j). See Jefferson v. State, 2013 Ark. App. 325 (noting that Rule 4-3(k)(1) (2012) governs the filing of no-merit appeals but that Rule 4-3(j) governs preparation of briefs for indigent appellants).

2 Cite as 2014 Ark. App. 8

preponderance of the evidence that the defendant inexcusably violated a condition of the

suspension or probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2011). We will affirm a

revocation when an independent ground on which it was based remains unchallenged on

appeal. E.g., Winston v. State, 2012 Ark. App. 608. Here, Gatewood’s failure to attack the

finding that he violated his conditions by failing to pay court-ordered amounts is dispositive

of his pro se appeal.

Counsel’s no-merit brief addresses three adverse decisions by the circuit court: the

revocation itself and two evidentiary rulings. Counsel fairly discusses the evidence supporting

the court’s findings that probation conditions were violated, and he explains why the court

was correct in one adverse evidentiary ruling and why the other ruling constituted harmless

error. From our review of the record and the brief presented to us, we find compliance with

Rule 4-3(k)(1), and we hold that there is no merit to this appeal.

Counsel’s motion to withdraw is granted and the convictions are affirmed. We

remand to the circuit court, however, for correction of the sentencing order. A handwritten

entry incorrectly shows the offense date of CR-2010-717 as March 12, 2012. It is clear from

other documents in the case, as well as the docket number itself, that the year was 2010.

Affirmed; motion granted; remanded for correction of sentencing order.

HARRISON and WOOD, JJ., agree.

C. Brian Williams, for appellant.

Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.