Macleod v. State

2017 Ark. App. 388

• Court: Court of Appeals of Arkansas
• Decided: June 21, 2017
• Docket: CR-16-672
• Status: Published

Opinion

Cite as 2017 Ark. App. 388

ARKANSAS COURT OF APPEALS DIVISION II No. CR-16-672

ARTHUR VERN MACLEOD III Opinion Delivered: June 21, 2017 APPELLANT APPEAL FROM THE JOHNSON V. COUNTY CIRCUIT COURT [NO. 36CR-15-71] STATE OF ARKANSAS APPELLEE HONORABLE WILLIAM M. PEARSON, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

BRANDON J. HARRISON, Judge

Arthur Vern Macleod III appeals from the revocation of his probation and related

sentence of five years’ imprisonment and five years’ suspended imposition of sentence.

Macleod’s attorney has filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Ark. Sup. Ct. R. 4-3(k)(1) (2016), along with a motion to withdraw as counsel,

asserting that there is no issue of arguable merit for an appeal. Our court’s clerk mailed a

certified copy of counsel’s motion and brief to Macleod pursuant to Ark. Sup. Ct. R. 4-

3(k)(2), informing him of his right to file pro se points for reversal. Macleod has not done

so, and the State has not filed a brief. We grant the motion to withdraw and affirm.

In 2015, Macleod pled guilty to two counts of sexual assault in the second degree

and was sentenced to 120 months’ probation. He certified that he had read and understood

his probation’s terms. The State filed the operative paper in this case, its second amended

petition for revocation, in April 2016. The State argues that Macleod violated his

probation’s terms by failing to register as a sex offender, testing positive for amphetamines, Cite as 2017 Ark. App. 388

failing to report, testing positive for alcohol, and failing to pay fines and fees that he owed.

After a hearing in May 2016, the court found that Macleod had violated the conditions of

his probation. The court sentenced him to five years in the Arkansas Department of

Correction and five years’ imposition of suspended sentence on each count of sexual assault.

The test for filing a no-merit brief is not whether there is any reversible error, but

whether an appeal would be wholly frivolous. Tucker v. State, 47 Ark. App. 96, 885 S.W.2d

904 (1994). Here, counsel has adequately explained why an appeal would be wholly

frivolous. Macleod’s probation conditions prohibited him from using alcohol and required

him to register and report as a sex offender. The State produced witnesses who testified

that Macleod had failed to register as a sex offender in a timely manner, that he had failed

to appear for two scheduled risk assessments, and that he had tested positive for alcohol

while on probation. The circuit court expressly ruled that it did not credit Macleod’s

testimony about being confused and making an honest mistake. Only one inexcusable

violation is necessary to revoke a defendant’s probation. Ingram v. State, 2009 Ark. App.

729, 363 S.W.3d 6. There were no adverse rulings apart from the court’s revocation of

Macleod’s probation.

Based on our review of the record for potential error pursuant to Anders and Rule

4-3(k), we hold that Macleod’s appeal is wholly without merit. We therefore grant counsel’s

motion to withdraw and affirm the court’s revocation.

Affirmed; motion to withdraw granted.

VAUGHT and BROWN, JJ., agree.

Dusti Standridge, for appellant. No response. 2