John Malone v. State of Arkansas

2025 Ark. App. 84

• Court: Court of Appeals of Arkansas
• Decided: February 12, 2025
• Status: Published

Opinion

Cite as 2025 Ark. App. 84 ARKANSAS COURT OF APPEALS DIVISION II No. CR-24-422

Opinion Delivered February 12, 2025 JOHN MALONE APPEAL FROM THE SALINE APPELLANT COUNTY CIRCUIT COURT [NO. 63CR-23-843] V. HONORABLE BRENT DILLON HOUSTON, JUDGE STATE OF ARKANSAS AFFIRMED; MOTION TO WITHDRAW GRANTED APPELLEE

STEPHANIE POTTER BARRETT, Judge

Appellant John Malone did not appear in the Saline County Circuit Court on

December 20, 2023, for a revocation hearing, resulting in both an additional charge of

failure to appear and a bench warrant being issued for his arrest. A bench trial was held

February 6, 2024, on the charge of failure to appear.1 Malone was found guilty and was

sentenced, as a habitual offender with more than four prior felony convictions, to fifteen

years’ incarceration. This sentence was ordered to be served consecutively to both the

sentence he received on the revocation of his suspended sentence and a sentence from the

Pulaski County Circuit Court for two counts of theft of property.

1 The revocation petition was also heard at this hearing, and Malone’s suspended sentence was revoked, but that revocation is not involved in this appeal. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(b)(1)

(2024), Malone’s counsel has filed a no-merit brief along with a motion to be relieved as

counsel asserting that there is no issue of arguable merit on appeal. The clerk of this court

provided Malone with a copy of his counsel’s brief and notified him of his right to file a pro

se statement of points for reversal. Malone has filed no pro se points. We affirm Malone’s

conviction and grant counsel’s motion to withdraw.

Malone’s counsel first addresses the merits of the sufficiency of the evidence to

support the failure-to-appear conviction. However, the sufficiency argument was not

preserved for appellate review. While a challenge to the sufficiency of the evidence may be

raised for the first time in an appeal of a revocation in the absence of a motion for a directed

verdict or a motion to dismiss, see Ames v. State, 2024 Ark. App. 434, 698 S.W.3d 668, Rule

33.1 of the Arkansas Rules of Criminal Procedure (2024) requires that, in a nonjury trial, a

motion for dismissal must be made at the close of all the evidence and shall state the specific

grounds for the motion; if this is not done, then any argument pertaining to the sufficiency

of the evidence is waived.

Here, the circuit court, in a bench trial, heard evidence pertaining to both the

revocation of Malone’s suspended sentence and the criminal offense of failure to appear.

While a sufficiency argument regarding the revocation of Malone’s suspended sentence

could be raised on appeal without having made a motion to dismiss to the circuit court, Rule

33.1 requires that a motion to dismiss the criminal charge of failure to appear had to be

2 made at the close of all of the evidence; because that was not done, any argument regarding

the sufficiency of the evidence is not preserved for appellate review.

Counsel did not assert that the sufficiency argument was not preserved; rather, he

addressed the sufficiency of the evidence on the merits and adequately explained why there

is no issue of arguable merit to be raised in an appeal. To be convicted of failure to appear

under Arkansas Code Annotated section 5-54-120(b)(2) (Supp. 2023), the State must prove

the defendant (1) failed to appear, (2) without a reasonable excuse, (3) after having been

lawfully set at liberty, (4) upon the condition that he appear at a specified time, place, and

court. Hyatt v. State, 2020 Ark. App. 390, 607 S.W.3d 180. Documentary proof of a judge’s

verbal or written order to appear in a court at a specific time and place is required. Id.

The State introduced the following evidence: the circuit court entered an appearance

order dated November 16, 2023, for Malone to appear in court on December 20 at 1:30

p.m. for a scheduled revocation hearing; an order of arrest for failure to appear entered by

the circuit court and filed on December 20; and a failure-to-appear warrant issued on

December 20 issued by the circuit clerk’s office.

Malone testified in his own defense, stating that he called his attorney the day before

the revocation hearing to let her know that his wife was to undergo a medical procedure on

the day of the revocation hearing, and he would not be able to leave the hospital until she

was out of recovery. He acknowledged that no one had given him permission to not appear

in court on December 20; he assumed that he could miss a court date if it was due to a

medical emergency. He also admitted that he had not provided any documentation

3 regarding his wife’s illness or hospitalization to his attorney or to the court. Malone agreed

that he had been convicted of “probably more” than twenty felony theft charges over the past

thirty years in Arkansas and Texas. In finding Malone guilty for failing to appear, the court

stated that he was not credible, and he had not given the court any reasonable explanation

for why he was not in court on December 20.

Malone admitted that he knew he was to appear in court on December 20 and failed

to do so. While he explained that he did not appear because his wife was undergoing a

medical procedure on that date, he admitted that he had not received permission to miss

the court date, nor had he provided documentation of his wife’s hospitalization. In a bench

trial, it is the circuit court’s function to evaluate the credibility of witnesses and resolve

questions of conflicting testimony and inconsistent evidence, and it is free to believe all, part,

or none of any witness’s testimony. Ables v. State, 2024 Ark. App. 558, 700 S.W.3d 517.

The circuit court explicitly stated that Malone was not a credible witness. There is no issue

of arguable merit to raise on appeal with regard to the sufficiency of the evidence.

Malone was sentenced to fifteen years’ imprisonment on the failure-to-appear

conviction. Failure to appear is a Class D felony if the appearance is in respect to an order

to appear before a revocation hearing under Arkansas Code Annotated section 16-93-307

(Repl. 2016), and the defendant received a suspended sentence for a felony offense. Ark.

Code Ann. § 5-54-120 (Supp. 2023). A sentence for a person convicted of a Class D felony

shall not exceed six years. Ark. Code Ann. § 5-4-401(a)(5) (Repl. 2013). However, a person

who has previously been convicted of four or more felonies shall be sentenced to an extended

4 term of not more than fifteen years for a Class D felony. Ark. Code Ann. § 5-4-501(b)(2)(E)

(Supp. 2023).

This adverse ruling presents no issue of arguable merit on appeal. Malone admitted

that he had been convicted of more than four felonies, and the State introduced proof of

this in the form of certified copies of convictions. Malone received the maximum sentence

allowable as a habitual offender, and there is no meritorious argument to be made regarding

the extended sentence.

The last adverse ruling was that the circuit court ordered the fifteen-year sentence for

the failure-to-appear conviction to run consecutively to the sentence imposed in Malone’s

revocation of suspended sentence and to the sentence from Pulaski County, despite the

request from Malone’s attorney to run the sentences concurrently. It is within a circuit

court’s discretion to order that sentences run consecutively. Ashmore v. State, 2024 Ark. App.

506; Ark. Code Ann. § 5-4-403 (Repl. 2013). After hearing testimony from several victims

of Malone’s prior thefts—in which Malone would take money to perform handyman services

but would fail to complete the jobs—the circuit court stated that it believed Malone had

preyed on the most vulnerable people in our society and that it was “going to lock [him] up

for as long as [it] possibly can.” There was no abuse of discretion in ordering that the

sentences be served consecutively.

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

complied with Rule 4-3(b), and there is no issue of arguable merit to an appeal. We affirm

Malone’s conviction and grant counsel’s motion to withdraw.

5 Affirmed; motion to withdraw granted.

HIXSON and MURPHY, JJ., agree.

Nobles Law Firm, PLLC, by: Ethan C. Nobles, for appellant.

One brief only.