Joseph Daniel Engelkes v. State of Arkansas

2024 Ark. App. 446

• Court: Court of Appeals of Arkansas
• Decided: September 25, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 446 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-24-114

Opinion Delivered September 25, 2024 JOSEPH DANIEL ENGELKES APPELLANT APPEAL FROM THE DREW COUNTY CIRCUIT COURT V. [NO. 22CR-20-233]

HONORABLE ROBERT B. GIBSON STATE OF ARKANSAS III, JUDGE APPELLEE AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED TO CORRECT SENTENCING ORDER

N. MARK KLAPPENBACH, Judge

Following a hearing, the Drew County Circuit Court found that Joseph Engelkes had

violated the conditions of his probation and imposed a period of confinement to be served

during his probation. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(b)

of the Rules of the Arkansas Supreme Court and Court of Appeals, Engelkes’s attorney has

filed a motion to withdraw and a no-merit brief asserting that there are no issues of arguable

merit to raise on appeal. Engelkes has not filed pro se points for reversal. We affirm the

circuit court’s order and grant counsel’s motion to withdraw; however, we remand for

correction of the sentencing order. In 2021, Engelkes pleaded guilty to possession of a controlled substance, a Class D

felony; possession of drug paraphernalia, a Class D felony; and possession of a controlled

substance, a Class A misdemeanor. He was placed on six years’ probation for the felony

offenses and one year of probation for the misdemeanor offense. In 2023, the State filed a

petition to revoke alleging that Engelkes had committed several violations of his probation.

A hearing was held on October 30, 2023. Engelkes’s probation officer, Felisha Smith,

testified that in 2022, Engelkes had twice tested positive for amphetamines, had failed to

report for an office visit on three occasions, and had missed a drug-and-alcohol class.

Engelkes testified that Smith’s testimony was correct, but he claimed that he had been

compliant in the past year. Other testimony was presented regarding an allegation that

Engelkes had committed misdemeanor battery, but the circuit court excluded this alleged

violation from its findings. Instead, the court found that it was uncontested that Engelkes

had tested positive for drugs and failed to report three times; accordingly, the court found

that the State had proved by a preponderance of the evidence that Engelkes had violated the

conditions of his probation.

A no-merit brief shall contain an argument section that consists of a list of all rulings

adverse to the defendant made by the circuit court on all objections, motions and requests

made by either party with an explanation as to why each adverse ruling is not a meritorious

ground for reversal. Ark. Sup. Ct. R. 4-3(b)(1). Counsel’s brief notes that one objection at

the hearing resulted in a ruling adverse to Engelkes, but because the objection occurred

during testimony regarding the alleged battery, which was not considered by the court as a

2 basis for its decision, any error would be harmless. Counsel also addresses the court’s finding

that Engelkes had violated his probation and correctly notes that, given Engelkes’s admission

that he had not been compliant, there could be no issue of arguable merit to raise on appeal.

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

complied with the requirements of Rule 4-3(b) and that there is no merit to an appeal.

Although we affirm the circuit court’s order, we must remand to correct the

sentencing order. The amended sentencing order incorrectly lists a six-year probation term

accompanied by a period of confinement for Engelkes’s misdemeanor-possession offense.

Engelkes was placed on twelve months’ probation for this offense in 2021; accordingly, the

probationary term had expired by the time of the 2023 hearing. Furthermore, the sentencing

order lists a twelve-month probation term for a charge that was nolle prossed. Accordingly,

we remand for correction of the sentencing order.

Affirmed; motion to withdraw granted; remanded to correct sentencing order.

ABRAMSON and BROWN, JJ., agree.

Eric Moore, for appellant.

One brief only.