Jefferson v. State

2014 Ark. App. 60

• Court: Court of Appeals of Arkansas
• Decided: January 22, 2014
• Docket: CR-12-843
• Status: Published

Opinion

Cite as 2014 Ark. App. 60

ARKANSAS COURT OF APPEALS DIVISIONS II & III No. CR-12-843

Opinion Delivered January 22, 2014

APPEAL FROM THE CRITTENDEN MAURICE JEFFERSON COUNTY CIRCUIT COURT APPELLANT [No. CR-09-1262]

V. HONORABLE JOHN N. FOGLEMAN, JUDGE

STATE OF ARKANSAS REVOCATION AFFIRMED; MOTION APPELLEE TO WITHDRAW GRANTED

LARRY D. VAUGHT, Judge

On July 16, 2012, the Crittenden County Circuit Court revoked the probation of

appellant Maurice Jefferson and sentenced him to three years’ imprisonment in the Arkansas

Department of Correction. Citing only Rule 4-3(k) of the Rules of the Arkansas Supreme Court

and Court of Appeals, Jefferson’s counsel has filed a no-merit brief asserting that there is no

issue of arguable merit to present on appeal and a motion asking to withdraw as counsel.

Jefferson was provided with a copy of his counsel’s no-merit brief and notified of the right to

file a pro se statement of additional points on appeal within thirty days. Jefferson has not filed

points on appeal, and the State has not filed a brief.

This is the second no-merit-appeal brief and motion to withdraw presented by

Jefferson’s counsel. In the first appeal, we denied counsel’s motion to withdraw and ordered

rebriefing, holding that counsel failed to comply with the rules for the filing of no-merit briefs. Cite as 2014 Ark. App. 60

Jefferson v. State, 2013 Ark. App. 325.1 In counsel’s second no-merit appeal, the deficiencies have

been addressed.2

On April 16, 2010, Jefferson pled guilty to fleeing, a Class C felony, and was placed on

probation for a period of five years. Among the conditions of his probation were the

requirements that he pay fines, court costs, and fees totaling $2020; pay probation-supervision

fees; report to his probation officer as directed; work at suitable employment; report his current

address and place of employment to his probation officer; and remain within the jurisdiction

of the court. On October 6, 2011, the State filed a petition to revoke Jefferson’s probation,

alleging that he had violated the terms of his probation by (1) failing to pay fines, costs, and

fees; (2) failing to report to his probation officer; (3) failing to pay probation fees; (4) failing to

notify the sheriff and his probation officer of his current address and employment; (5) departing

from an approved residence without permission; and (6) failing to work regularly at suitable

employment.

At the July 5, 2012 probation revocation hearing, the State produced testimony that

Jefferson made no payments toward the $2020 he owed in costs, fines, and fees. Jefferson’s

probation officer testified that after Jefferson had been sentenced to probation on April 16,

1 Specifically, we held that counsel failed to cite Arkansas Supreme Court Rule 4-3(k); he cited Rule 4-3(j), which governs the preparation of briefs for indigent appellants; and he failed to explain why the revocation decision was not a meritorious ground for reversal. Jefferson, 2013 Ark. App. 325, at 3–4. 2 We note that counsel has failed to cite Anders v. California, 386 U.S. 738 (1967). While the better practice is to cite Anders in all no-merit criminal appeals, the Anders citation is not required. Coleman v. State, 2014 Ark. App. ___.

2 Cite as 2014 Ark. App. 60

2010, the following day he was extradited to Missouri and placed on probation there. The

officer said that on November 18, 2010, Jefferson called the Arkansas probation office and

requested that his Missouri probation be transferred to Arkansas. Jefferson was told that a

transfer request had to be made in person, and he was told to report in Arkansas on December

7, 2010. Jefferson failed to report on that date. The probation officer stated that Jefferson never

reported to the Arkansas probation office.

Jefferson testified, confirming that after he had been extradited to Missouri, he requested

that his probation be transferred to Arkansas. He said that he was told he would have to come

to Arkansas to have the paperwork for that request completed but said that he did not have the

money to travel to Arkansas at that time. However, he testified that he returned to Arkansas

in December 2011 and did not report upon his return because he was saving money to pay his

costs, fees, and fines.

At the conclusion of the hearing, the trial court—focusing on the time period after

which Jefferson had returned to Arkansas—revoked Jefferson’s probation for failing to report

to his probation officer. In a sentencing order filed July 16, 2012, the trial court sentenced him

to three years’ imprisonment. This no-merit appeal and motion to withdraw followed.

A request to withdraw as counsel on the ground that the appeal is wholly without merit

shall be accompanied by a brief including an abstract and addendum. Anders v. California, 386

U.S. 738, 744 (1967); Ark. Sup. Ct. R. 4-3(k)(1) (2012). The brief shall contain an argument

section that consists of a list of all rulings adverse to the defendant made by the trial court on

all objections, motions, and requests made by either party with an explanation as to why each

3 Cite as 2014 Ark. App. 60

adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1). It is

imperative that counsel follow the appropriate procedure when filing a motion to withdraw as

counsel. Alls v. State, 2013 Ark. App. 713, at 2. In furtherance of the goal of protecting

constitutional rights, it is both the duty of counsel and of this court to perform a full

examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Id.

Our review of the record reveals three rulings adverse to Jefferson—two adverse

evidentiary rulings (State hearsay objections that were sustained by the trial court) and the

revocation decision. Counsel’s no-merit brief includes an abstract of the two adverse evidentiary

rulings and the argument that there is no merit to an appeal of these adverse rulings because

the rules of evidence do not apply in probation-revocation proceedings. Ark. R. Evid.

1101(b)(3) (2012). Regarding the third adverse ruling—the revocation decision—counsel argues

that there is no merit to an appeal of this ruling because the trial court revoked Jefferson’s

probation based on his failure to report to his probation officer and Jefferson admitted that he

failed to report after he returned to Arkansas in December 2011.

Having considered this under the proper standards required for no-merit appeals, we

affirm the revocation of Jefferson’s probation and grant counsel’s motion to withdraw.

Revocation affirmed; motion to withdraw granted.

WALMSLEY, HARRISON, GRUBER, GLOVER, and WOOD, JJ., agree.

C. Brian Williams, for appellant.

No response.