Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION III integrity of this document No. CR-20-207 2023.06.28 11:30:54 -05'00' 2023.001.20174 JOSEPH EVAN BENNION Opinion Delivered June 2, 2021 APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CR-16-1944]
STATE OF ARKANSAS HONORABLE ROBIN F. GREEN, APPELLEE JUDGE
REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED WITHOUT PREJUDICE
KENNETH S. HIXSON, Judge
Appellant Joseph Bennion appeals after the Benton County Circuit Court revoked
his probation on the charges of possession of drug paraphernalia and two counts of failure
to appear and imposed an aggregate sentence of 312 months’ imprisonment in the Arkansas
Department of Correction. Appellant’s counsel has filed a no-merit brief and a motion to
withdraw as counsel pursuant to Arkansas Supreme Court Rule 4-3(k) (2019) 1 and Anders
v. California, 386 U.S. 738 (1967), asserting that this appeal is wholly without merit. The
motion is accompanied by an abstract and addendum of the proceedings below, alleged to
include all objections and motions decided adversely to appellant, and a brief in which
1 We note that Rule 4-3 was amended January 17, 2020. See In re Rules for Acceptance of Records on Appeal in Electronic Format, 2020 Ark. 421 (per curiam). However, because counsel’s brief before us was filed in this court on August 17, 2020, the previous version was still in effect. counsel explains why there is nothing in the record that would support an appeal. The clerk
of this court mailed a copy of counsel’s motion and brief to appellant’s last-known address
informing him of his right to file pro se points for reversal, which he has done.
Consequently, the attorney general has filed a brief in response. However, because counsel’s
no-merit brief is not in compliance with Anders and Rule 4-3(k), we order rebriefing and
deny counsel’s motion to withdraw without prejudice.
Pertinent to this appeal, appellant was charged by amended information with
possession of drug paraphernalia, a Class D felony, in violation of Arkansas Code Annotated
section 5-64-443(a)(2) (Supp. 2019) and two counts of failure to appear, a Class C felony,
in violation of Arkansas Code Annotated section 5-54-120(b) (Supp. 2019). Appellant
subsequently entered a negotiated plea of guilty, and the circuit court filed a sentencing
order on November 15, 2017, placing appellant on thirty-six months’ probation on all three
counts. Appellant signed that he understood the terms and conditions of his probation
agreement.
On May 1, 2019, the State filed a petition for revocation of probation alleging that
appellant had violated the following conditions of his probation:
1. On or about April 26th, 2019, the Defendant committed the offense of Domestic Battery in the 2nd Degree, Class C Felony, in Benton County, Arkansas.
2. The Defendant has failed to pay fines, fees and costs as ordered by the court.
3. The Defendant has failed to pay supervision fees.
On June 6, 2019, appellant apparently appeared in court on the petition. However,
appellant tested positive for THC, and the circuit court held him in contempt of court. The
2 circuit court ordered that appellant be incarcerated for contempt of court for ten days and
appear back for a revocation hearing at a later date.
On October 16, 2019, the State filed an amended petition for revocation of
probation alleging the following two additional violations:
4. On or about November 30th, 2018, the defendant tested positive for methamphetamine and THC.
5. On or about June 6th, 2019, the defendant tested positive for THC.
A revocation hearing was held on November 25, 2019.
At the hearing, the parties stipulated to the admission of medical records from Ozark
Community Hospital. These documents indicated that appellant had taken his grandson,
J.W., to the hospital for a broken arm, and the following statement was noted in the records:
PT PRESENTS TO ED WITH HIS GRANDPA. PT REPORTS TEARFULLY “I RAN TO THE NEIGHBOR’S HOUSE TO CALL MY STEP-DAD BC MY GRANDPA WAS HITTING US WITH A BELT. I WENT HOME TO CHECK ON MY LITTLE BROTHER WHEN MY GRANDPA PUSHED ME DOWN AND HURT MY ARM.” “I WAS WORRIED ABOUT MY LITTLE BROTHER,” MY GRANDPA SAID “I DIDN’T BREAK YOUR ARM” BUT WHEN HE LOOKED AT IT HE SAID “OH SHIT, LOOK AT WHAT YOU MADE ME DO,” PT CRYING AND VISIBLY UPSET.
Detective Braxton Handle testified that he responded to the dispatch after J.W. had
been taken to the hospital for a broken arm. Upon arriving at the hospital, Detective Handle
spoke with appellant. Detective Handle explained that he was wearing a body camera when
he spoke with appellant, and the video from that camera was played for the circuit court.
During the video, appellant told Detective Handle that his “grandson got a broken arm. He
came in the - - he came in the house and I shoved him right in the house and the front
door fell on his arm I guess somehow. It looked like it snapped.”
3 Officer David Guarno, appellant’s supervising probation officer, testified appellant
had given him “trouble” during the term of his probation by testing positive for controlled
substances, failing to maintain his monetary obligations as ordered by the court, and
committing a new violent offense. Officer Guarno readily admitted that he was most
concerned about the new pending charge for battery in the second degree against appellant
and that it “was the main reason for the petition to revoke.” He testified that he tested
appellant multiple times to determine if appellant was a habitual drug user. Appellant tested
positive on November 30, 2018, for methamphetamine and THC and on June 6, 2019, for
THC. Officer Guarno further testified that although appellant had not paid his supervision
fees in the past as ordered, he had since rectified that issue and was current. Officer Guarno
additionally thought that appellant had “paid off” his court fines by the time of the
revocation hearing.
Jeff Williams, J.W.’s stepfather, testified that appellant cares for J.W. and the other
children in the household nearly every day when he and his wife are working. Mr. Williams
further explained that he was aware of and recognized a letter that J.W. had written after
the incident, which was subsequently filed with the circuit court. Although trial counsel
sought the admission of the letter during Mr. Williams’s testimony, the State objected on
the basis of hearsay and lack of foundation. Trial counsel argued that it was not being offered
for the truth of the matter asserted; however, the circuit court denied the letter’s admission
into evidence on the basis that there was a lack of foundation. Mr. Williams testified that he
did not have any concerns about appellant continuing to watch the children even after the
incident because he now knew the “full story.” He explained that his understanding was
4 that J.W. was grounded from playing outside. Because J.W. failed to listen and was outside
playing, appellant “kind of patted” and “guided” J.W. inside the house when J.W. tripped
and fell over the front doorway jamb, causing J.W. to fall down and break his arm. Mr.
Williams also acknowledged that he was aware that appellant has “some drug use.”
Patricia Williams, J.W.’s mother and appellant’s daughter, testified that she did not
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Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION III integrity of this document No. CR-20-207 2023.06.28 11:30:54 -05'00' 2023.001.20174 JOSEPH EVAN BENNION Opinion Delivered June 2, 2021 APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CR-16-1944]
STATE OF ARKANSAS HONORABLE ROBIN F. GREEN, APPELLEE JUDGE
REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED WITHOUT PREJUDICE
KENNETH S. HIXSON, Judge
Appellant Joseph Bennion appeals after the Benton County Circuit Court revoked
his probation on the charges of possession of drug paraphernalia and two counts of failure
to appear and imposed an aggregate sentence of 312 months’ imprisonment in the Arkansas
Department of Correction. Appellant’s counsel has filed a no-merit brief and a motion to
withdraw as counsel pursuant to Arkansas Supreme Court Rule 4-3(k) (2019) 1 and Anders
v. California, 386 U.S. 738 (1967), asserting that this appeal is wholly without merit. The
motion is accompanied by an abstract and addendum of the proceedings below, alleged to
include all objections and motions decided adversely to appellant, and a brief in which
1 We note that Rule 4-3 was amended January 17, 2020. See In re Rules for Acceptance of Records on Appeal in Electronic Format, 2020 Ark. 421 (per curiam). However, because counsel’s brief before us was filed in this court on August 17, 2020, the previous version was still in effect. counsel explains why there is nothing in the record that would support an appeal. The clerk
of this court mailed a copy of counsel’s motion and brief to appellant’s last-known address
informing him of his right to file pro se points for reversal, which he has done.
Consequently, the attorney general has filed a brief in response. However, because counsel’s
no-merit brief is not in compliance with Anders and Rule 4-3(k), we order rebriefing and
deny counsel’s motion to withdraw without prejudice.
Pertinent to this appeal, appellant was charged by amended information with
possession of drug paraphernalia, a Class D felony, in violation of Arkansas Code Annotated
section 5-64-443(a)(2) (Supp. 2019) and two counts of failure to appear, a Class C felony,
in violation of Arkansas Code Annotated section 5-54-120(b) (Supp. 2019). Appellant
subsequently entered a negotiated plea of guilty, and the circuit court filed a sentencing
order on November 15, 2017, placing appellant on thirty-six months’ probation on all three
counts. Appellant signed that he understood the terms and conditions of his probation
agreement.
On May 1, 2019, the State filed a petition for revocation of probation alleging that
appellant had violated the following conditions of his probation:
1. On or about April 26th, 2019, the Defendant committed the offense of Domestic Battery in the 2nd Degree, Class C Felony, in Benton County, Arkansas.
2. The Defendant has failed to pay fines, fees and costs as ordered by the court.
3. The Defendant has failed to pay supervision fees.
On June 6, 2019, appellant apparently appeared in court on the petition. However,
appellant tested positive for THC, and the circuit court held him in contempt of court. The
2 circuit court ordered that appellant be incarcerated for contempt of court for ten days and
appear back for a revocation hearing at a later date.
On October 16, 2019, the State filed an amended petition for revocation of
probation alleging the following two additional violations:
4. On or about November 30th, 2018, the defendant tested positive for methamphetamine and THC.
5. On or about June 6th, 2019, the defendant tested positive for THC.
A revocation hearing was held on November 25, 2019.
At the hearing, the parties stipulated to the admission of medical records from Ozark
Community Hospital. These documents indicated that appellant had taken his grandson,
J.W., to the hospital for a broken arm, and the following statement was noted in the records:
PT PRESENTS TO ED WITH HIS GRANDPA. PT REPORTS TEARFULLY “I RAN TO THE NEIGHBOR’S HOUSE TO CALL MY STEP-DAD BC MY GRANDPA WAS HITTING US WITH A BELT. I WENT HOME TO CHECK ON MY LITTLE BROTHER WHEN MY GRANDPA PUSHED ME DOWN AND HURT MY ARM.” “I WAS WORRIED ABOUT MY LITTLE BROTHER,” MY GRANDPA SAID “I DIDN’T BREAK YOUR ARM” BUT WHEN HE LOOKED AT IT HE SAID “OH SHIT, LOOK AT WHAT YOU MADE ME DO,” PT CRYING AND VISIBLY UPSET.
Detective Braxton Handle testified that he responded to the dispatch after J.W. had
been taken to the hospital for a broken arm. Upon arriving at the hospital, Detective Handle
spoke with appellant. Detective Handle explained that he was wearing a body camera when
he spoke with appellant, and the video from that camera was played for the circuit court.
During the video, appellant told Detective Handle that his “grandson got a broken arm. He
came in the - - he came in the house and I shoved him right in the house and the front
door fell on his arm I guess somehow. It looked like it snapped.”
3 Officer David Guarno, appellant’s supervising probation officer, testified appellant
had given him “trouble” during the term of his probation by testing positive for controlled
substances, failing to maintain his monetary obligations as ordered by the court, and
committing a new violent offense. Officer Guarno readily admitted that he was most
concerned about the new pending charge for battery in the second degree against appellant
and that it “was the main reason for the petition to revoke.” He testified that he tested
appellant multiple times to determine if appellant was a habitual drug user. Appellant tested
positive on November 30, 2018, for methamphetamine and THC and on June 6, 2019, for
THC. Officer Guarno further testified that although appellant had not paid his supervision
fees in the past as ordered, he had since rectified that issue and was current. Officer Guarno
additionally thought that appellant had “paid off” his court fines by the time of the
revocation hearing.
Jeff Williams, J.W.’s stepfather, testified that appellant cares for J.W. and the other
children in the household nearly every day when he and his wife are working. Mr. Williams
further explained that he was aware of and recognized a letter that J.W. had written after
the incident, which was subsequently filed with the circuit court. Although trial counsel
sought the admission of the letter during Mr. Williams’s testimony, the State objected on
the basis of hearsay and lack of foundation. Trial counsel argued that it was not being offered
for the truth of the matter asserted; however, the circuit court denied the letter’s admission
into evidence on the basis that there was a lack of foundation. Mr. Williams testified that he
did not have any concerns about appellant continuing to watch the children even after the
incident because he now knew the “full story.” He explained that his understanding was
4 that J.W. was grounded from playing outside. Because J.W. failed to listen and was outside
playing, appellant “kind of patted” and “guided” J.W. inside the house when J.W. tripped
and fell over the front doorway jamb, causing J.W. to fall down and break his arm. Mr.
Williams also acknowledged that he was aware that appellant has “some drug use.”
Patricia Williams, J.W.’s mother and appellant’s daughter, testified that she did not
have any cause or concern about leaving the children in appellant’s care. She testified that
she recognized J.W.’s handwriting in the same letter previously excluded during
Mr. Williams’s testimony and that J.W. had asked to write the letter. The State objected on
the basis of hearsay to Ms. Williams’s testimony that J.W. had mentioned the letter first to
Mr. Williams, which the circuit court sustained. The State further objected to the renewed
motion to admit the letter J.W. allegedly wrote, which the circuit court ruled should be
excluded on the basis of a lack of proper foundation. Trial counsel proffered a copy of this
letter for our review on appeal. Upon further examination, Ms. Williams testified that she
did not think appellant would intentionally hurt her son and that she was aware of appellant’s
drug use. She further agreed that appellant was “very honest” but maintained that appellant
must have been “usher[ing]” J.W. into the house “in the heat of the moment” when J.W.
fell, despite the statements appellant made to Detective Handle.
After all evidence had been presented, appellant’s trial counsel orally argued the
following:
Judge, the allegation -- the first allegation that he committed, the offense of battery in the second degree, I don’t know that the evidence today presented today rises to battery in the second degree. I think there’s been testimony -- the understanding of what happened that day was that [J.W.] broke his arm. Whether or not that was knowingly for purpose of sec -- battery in the second degree for a C felony, I think that’s still up in dispute.
5 I don’t know that that’s – there’s substantial evidence to find him guilty of violating his probation as far as to count one. His probation officer testified that but for this he would not have filed a probation revocation, so I think I’m going to ask the Court to hold off any kind of sentencing until we can have a finding of fact on whether or not he is guilty of committing a Class C felony because I think it does matter if -- if it was reckless or knowingly.
A child was injured that day; however, I would point out that we haven’t had a full trial as to that fact. And I understand we’re here for an evidentiary hearing; however, I think there are minor differences to show whether this case was accidental or knowingly for the purposes of deciding whether or not this is a child abuse case or -- or something that -- just an accident that -- could have been avoided.
(Emphasis added.) Thereafter, the circuit court stated that it was revoking appellant’s
probation on all five grounds alleged in the amended petition and sentenced appellant to
serve a total of twenty-six years’ imprisonment. This appeal followed.
Rule 4-3(k)(1) requires that the argument section of a no-merit brief contain “a list
of all rulings adverse to the defendant made by the circuit court on all objections . . . with
an explanation as to why each . . . is not a meritorious ground for reversal” and that “the
abstract and addendum of the brief shall contain . . . all rulings adverse to the defendant.”
Ark. Sup. Ct. R. 4-3(k)(1). Generally speaking, if a no-merit brief fails to address all the
adverse rulings, it will be sent back for rebriefing. Sartin v. State, 2010 Ark. 16, at 4, 362
S.W.3d 877, 880. The requirement for abstracting and briefing every adverse ruling ensures
that the due-process concerns in Anders are met and prevents the unnecessary risk of a
deficient Anders brief resulting in an incorrect decision on counsel’s motion to withdraw.
Sartin, 2010 Ark. 16, at 8, 362 S.W.3d at 882. For these reasons, a no-merit brief in a
criminal case that fails to address an adverse ruling does not satisfy the requirements of Rule
4-3(k)(1), and rebriefing will be required. Id.
6 Our review of the record reveals that although counsel has argued that the circuit
court’s evidentiary rulings relating to the new second-degree domestic-battery charge did
not provide a meritorious ground for reversal because appellant was also found in violation
of his probation for testing positive for controlled substances, counsel failed to address other
adverse rulings in the argument section of the no-merit brief. For example, counsel failed
to specifically list and address the revocation itself as an adverse ruling. 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. See Barbee v. State, 346 Ark. 185, 56 S.W.3d
370 (2001). Additionally, counsel argues that there was no preserved objection regarding
sentencing. However, our review reveals that after the evidence was presented, trial counsel
asked the circuit court to “to hold off any kind of sentencing until we can have a finding of fact on
whether or not he is guilty of committing a Class C felony.” (Emphasis added.) Trial counsel went
on to explain that there had not yet been a trial on the pending second-degree domestic-
battery charge. Despite this request, the circuit court immediately thereafter found appellant
in violation and sentenced him to serve a total of twenty-six years. Yet, counsel does not
address the circuit court’s denial of trial counsel’s request to “hold off” on sentencing until
there had been a trial on the pending new charge. Due to these deficiencies, we deny
counsel’s motion to withdraw and order rebriefing.
Accordingly, we order counsel to cure these deficiencies by filing a substituted brief
within fifteen days from the date of this opinion. The deficiencies we have identified should
not be considered exhaustive, and counsel is encouraged to review Anders and Rule 4-3
regarding the requirements of a no-merit brief. We express no opinion as to whether the
7 new brief should be a no-merit brief pursuant to Rule 4-3 or a brief on meritorious grounds.
If a substituted no-merit brief is filed, our clerk will forward counsel’s motion and brief to
appellant, and he will have thirty days within which to raise additional pro se points in
accordance with Rule 4-3. The State will likewise be given an opportunity to file a
responsive brief if further pro se points are made. Appellant and the State may elect to stand
on the original pro se points and responsive brief in this case. See Jester v. State, 2018 Ark.
App. 360, 553 S.W.3d 198.
Rebriefing ordered; motion to withdraw denied without prejudice.
ABRAMSON and MURPHY, JJ., agree.
Caddell Reynolds, PA, by: Josie N. Graves, for appellant.
Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.