Cite as 2021 Ark. App. 12 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.08.15 11:03:03 DIVISION II -05'00' No. CR-20-110 Adobe Acrobat version: 2022.002.20191 Opinion Delivered: January 13, 2021 MARK EDWARD WAGNER
APPELLANT APPEAL FROM THE WASHINGTON COUNTY V. CIRCUIT COURT [NOS. 72CR-16-1733; 72CR-16-1916; STATE OF ARKANSAS 72CR-17-2957; 72CR-17-3578; 72CR- APPELLEE 17-3638; 72CR-19-1804]
HONORABLE JOANNA TAYLOR, JUDGE
AFFIRMED; MOTION TO WITHDRAW GRANTED
RITA W. GRUBER, Judge
The Washington County Circuit Court revoked appellant Mark Edward Wagner’s
probation in multiple cases. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule
4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant’s
counsel has filed a no-merit brief and a motion to withdraw asserting that there is no issue
of arguable merit to raise on appeal. Appellant was sent a copy of his counsel’s brief and
motion by mail notifying him of his right to present pro se points for reversal, but he has
not filed any such points. We affirm the revocation and grant counsel’s motion to withdraw.
On December 12, 2016, appellant entered negotiated guilty pleas for second-degree
forgery, a Class C felony, in case No. 72CR-16-1733 and for failure to appear, a Class C
felony, in case No. 72CR-16-1916. The December 15 sentencing order provides that appellant was sentenced to forty-eight months’ probation in each case to be served
concurrently. He was ordered to pay fines, fees, costs, and restitution and to comply with
the conditions of his probation. The conditions of his probation included, in part, that he
report to his supervising officer as directed; remain within the State of Arkansas unless
granted permission to leave by a supervising officer; notify a supervising officer of change
in address; pay monthly supervision fees as well as fines, fees and costs; and pay restitution
as directed.
On September 26, 2018, appellant entered the following negotiated guilty pleas:
second-degree forgery, a Class C felony, and theft by receiving, a Class A misdemeanor, in
case No. 72CR-17-2957; two counts of second-degree forgery, a Class C felony, and two
counts of theft by receiving, a Class A misdemeanor, in No. 72CR-17-3578; and second-
degree forgery, a Class C felony, in case No. 72CR-17-3638. He was sentenced to serve
sixty months’ probation for the forgery charges and twelve months’ probation for the theft-
by-receiving charges, along with forty-five days’ confinement with forty-five days of jail
credit given. Each of these sentences was to run concurrently. Appellant was ordered to pay
fines, fees, and costs as well as to comply with the conditions of his probation, which
included that he report to his supervising officer as directed; obtain prior approval from the
supervising officer before changing his place of residence or leaving Arkansas; obey all state
and federal laws; and pay all court-ordered fines, fees, and restitution.
On January 17, 2019, the State filed a petition to revoke in all five cases alleging that
appellant had violated the terms and conditions of his probation by failing to report to his
probation officer in Texas, moving without notifying his probation officer, and being in
2 arrears of court-ordered obligations. After appearing in court and pleading not guilty to the
revocation petition, appellant was ordered to appear for trial on July 2 but failed to do so.
An arrest warrant was issued for his failure to appear. On November 7, the day of the
revocation hearing, the State filed an amended petition, adding that appellant was in
violation of the conditions of his probation by committing the felony offense of failure to
appear.
Appellant’s probation officer, Catherine Miller, testified at the revocation hearing
that appellant appeared at the intake on September 27, 2018, where he asked for his
probation to be transferred to Texas. He provided an address and phone number of the
Salvation Army in Tyler, Texas, where he would be staying. When Miller received the
written denial of his request, she attempted to contact him at the phone number he provided
but was unable to reach him. Miller said that appellant never called her or reported to her
after the initial intake. She submitted a violation report on January 11, 2019, an alias arrest
warrant was issued, and appellant was arrested on April 13 for the violation. Miller stated
that appellant was released on April 19 but did not report to her as required by the terms of
his probation. According to the records introduced, Miller stated that at the arraignment
proceedings, appellant was ordered to appear on July 2 but failed to appear on that date and
was arrested on July 31. Both times appellant was arrested, he had to be picked up from
Texas.
Miller also testified that as part of the conditions of his probation, appellant was
required to pay fines, fees, and costs in each of the cases as well as victim restitution in case
Nos. 72CR-16-1916 and 72CR-16-1733. She said that appellant had made no payments.
3 Appellant admitted that he had failed to report; had not paid any money towards his
costs, fines, fees, or restitution; had failed to appear and was arrested; but was able to make
the $7500 bond after being arrested for failure to appear, and he returned to Texas after his
release.
After hearing arguments from counsel, the court found that appellant had inexcusably
failed to comply with the conditions of his probation by failing to report; failing to pay any
fines, costs, fees, or restitution in case Nos. 72CR-16-1733 and 72CR-16-1916; failing to
pay fines, fees, or costs in case Nos. 72CR-17-3638, 72CR-17-2957, or 72CR-17-3578;
and failing to appear on July 2. The court found by a preponderance of the evidence that
appellant had inexcusably failed to comply with reporting requirements and failed to comply
with the payment of fines, costs, fees, and restitution. The court further found that appellant
had the means and ability to comply with the probation requirements. The court sentenced
him to ten years’ imprisonment for second-degree forgery in case No. 72CR-16-1733 and
ten years’ imprisonment for failure to appear in case No. 72CR-16-1916, with the sentences
to run concurrently. He was sentenced to ten years’ imprisonment for the second-degree
forgery charge in case No. 72CR-17-2957, with the sentence to run consecutive to the
sentences in case Nos. 72CR-16-1733 and 72CR-16-1916. Appellant was also sentenced
to ten years’ imprisonment for the second-degree forgery charges in case Nos. 72CR-17-
3578 and 72CR-17-3638 and twelve months’ confinement in the county jail for both of
the theft-by-receiving charges in case Nos. 72CR-17-3578 and 72CR-17-2957, with the
sentences to run concurrently to the sentence in case No. 72CR-17-2957. The sentencing
4 order was entered on November 8, and a timely notice of appeal was filed on November
22.
In a no-merit brief, counsel is required to list each ruling adverse to the defendant
and explain why it does not present a meritorious ground for reversal. Eads v. State, 74 Ark.
App. 363, 365, 47 S.W.3d 918, 919 (2001). After a full examination of the proceedings, we
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Cite as 2021 Ark. App. 12 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.08.15 11:03:03 DIVISION II -05'00' No. CR-20-110 Adobe Acrobat version: 2022.002.20191 Opinion Delivered: January 13, 2021 MARK EDWARD WAGNER
APPELLANT APPEAL FROM THE WASHINGTON COUNTY V. CIRCUIT COURT [NOS. 72CR-16-1733; 72CR-16-1916; STATE OF ARKANSAS 72CR-17-2957; 72CR-17-3578; 72CR- APPELLEE 17-3638; 72CR-19-1804]
HONORABLE JOANNA TAYLOR, JUDGE
AFFIRMED; MOTION TO WITHDRAW GRANTED
RITA W. GRUBER, Judge
The Washington County Circuit Court revoked appellant Mark Edward Wagner’s
probation in multiple cases. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule
4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant’s
counsel has filed a no-merit brief and a motion to withdraw asserting that there is no issue
of arguable merit to raise on appeal. Appellant was sent a copy of his counsel’s brief and
motion by mail notifying him of his right to present pro se points for reversal, but he has
not filed any such points. We affirm the revocation and grant counsel’s motion to withdraw.
On December 12, 2016, appellant entered negotiated guilty pleas for second-degree
forgery, a Class C felony, in case No. 72CR-16-1733 and for failure to appear, a Class C
felony, in case No. 72CR-16-1916. The December 15 sentencing order provides that appellant was sentenced to forty-eight months’ probation in each case to be served
concurrently. He was ordered to pay fines, fees, costs, and restitution and to comply with
the conditions of his probation. The conditions of his probation included, in part, that he
report to his supervising officer as directed; remain within the State of Arkansas unless
granted permission to leave by a supervising officer; notify a supervising officer of change
in address; pay monthly supervision fees as well as fines, fees and costs; and pay restitution
as directed.
On September 26, 2018, appellant entered the following negotiated guilty pleas:
second-degree forgery, a Class C felony, and theft by receiving, a Class A misdemeanor, in
case No. 72CR-17-2957; two counts of second-degree forgery, a Class C felony, and two
counts of theft by receiving, a Class A misdemeanor, in No. 72CR-17-3578; and second-
degree forgery, a Class C felony, in case No. 72CR-17-3638. He was sentenced to serve
sixty months’ probation for the forgery charges and twelve months’ probation for the theft-
by-receiving charges, along with forty-five days’ confinement with forty-five days of jail
credit given. Each of these sentences was to run concurrently. Appellant was ordered to pay
fines, fees, and costs as well as to comply with the conditions of his probation, which
included that he report to his supervising officer as directed; obtain prior approval from the
supervising officer before changing his place of residence or leaving Arkansas; obey all state
and federal laws; and pay all court-ordered fines, fees, and restitution.
On January 17, 2019, the State filed a petition to revoke in all five cases alleging that
appellant had violated the terms and conditions of his probation by failing to report to his
probation officer in Texas, moving without notifying his probation officer, and being in
2 arrears of court-ordered obligations. After appearing in court and pleading not guilty to the
revocation petition, appellant was ordered to appear for trial on July 2 but failed to do so.
An arrest warrant was issued for his failure to appear. On November 7, the day of the
revocation hearing, the State filed an amended petition, adding that appellant was in
violation of the conditions of his probation by committing the felony offense of failure to
appear.
Appellant’s probation officer, Catherine Miller, testified at the revocation hearing
that appellant appeared at the intake on September 27, 2018, where he asked for his
probation to be transferred to Texas. He provided an address and phone number of the
Salvation Army in Tyler, Texas, where he would be staying. When Miller received the
written denial of his request, she attempted to contact him at the phone number he provided
but was unable to reach him. Miller said that appellant never called her or reported to her
after the initial intake. She submitted a violation report on January 11, 2019, an alias arrest
warrant was issued, and appellant was arrested on April 13 for the violation. Miller stated
that appellant was released on April 19 but did not report to her as required by the terms of
his probation. According to the records introduced, Miller stated that at the arraignment
proceedings, appellant was ordered to appear on July 2 but failed to appear on that date and
was arrested on July 31. Both times appellant was arrested, he had to be picked up from
Texas.
Miller also testified that as part of the conditions of his probation, appellant was
required to pay fines, fees, and costs in each of the cases as well as victim restitution in case
Nos. 72CR-16-1916 and 72CR-16-1733. She said that appellant had made no payments.
3 Appellant admitted that he had failed to report; had not paid any money towards his
costs, fines, fees, or restitution; had failed to appear and was arrested; but was able to make
the $7500 bond after being arrested for failure to appear, and he returned to Texas after his
release.
After hearing arguments from counsel, the court found that appellant had inexcusably
failed to comply with the conditions of his probation by failing to report; failing to pay any
fines, costs, fees, or restitution in case Nos. 72CR-16-1733 and 72CR-16-1916; failing to
pay fines, fees, or costs in case Nos. 72CR-17-3638, 72CR-17-2957, or 72CR-17-3578;
and failing to appear on July 2. The court found by a preponderance of the evidence that
appellant had inexcusably failed to comply with reporting requirements and failed to comply
with the payment of fines, costs, fees, and restitution. The court further found that appellant
had the means and ability to comply with the probation requirements. The court sentenced
him to ten years’ imprisonment for second-degree forgery in case No. 72CR-16-1733 and
ten years’ imprisonment for failure to appear in case No. 72CR-16-1916, with the sentences
to run concurrently. He was sentenced to ten years’ imprisonment for the second-degree
forgery charge in case No. 72CR-17-2957, with the sentence to run consecutive to the
sentences in case Nos. 72CR-16-1733 and 72CR-16-1916. Appellant was also sentenced
to ten years’ imprisonment for the second-degree forgery charges in case Nos. 72CR-17-
3578 and 72CR-17-3638 and twelve months’ confinement in the county jail for both of
the theft-by-receiving charges in case Nos. 72CR-17-3578 and 72CR-17-2957, with the
sentences to run concurrently to the sentence in case No. 72CR-17-2957. The sentencing
4 order was entered on November 8, and a timely notice of appeal was filed on November
22.
In a no-merit brief, counsel is required to list each ruling adverse to the defendant
and explain why it does not present a meritorious ground for reversal. Eads v. State, 74 Ark.
App. 363, 365, 47 S.W.3d 918, 919 (2001). After a full examination of the proceedings, we
are required to determine whether an appeal would be wholly frivolous. Tennant v. State,
2014 Ark. App. 403, at 2, 439 S.W.3d 61, 63. Counsel’s brief addresses the only adverse
ruling, which was the decision to revoke appellant’s probation, arguing that evidence
supported the circuit court’s decision to revoke his probation. We agree.
Probation may be revoked upon a finding by a preponderance of the evidence that
the defendant has inexcusably failed to comply with a condition of the probation. Leach v.
State, 2015 Ark. App. 17, at 4, 453 S.W.3d 690, 693. The State bears the burden of proof
but need only prove that the defendant committed one violation of the conditions. Id. We
will not overturn a circuit court’s decision to revoke probation unless it is clearly against the
preponderance of the evidence. Id. Here, appellant admitted the violations testified to by
his probation officer. Counsel is correct that there can be no issue of arguable merit
regarding whether appellant committed at least one violation of his probation.
The test for filing a no-merit brief is not whether there is any reversible error but
whether an appeal would be wholly frivolous. Cloninger v. State, 2018 Ark. App. 373. From
our review of the record and the brief presented to us, we hold that counsel has complied
with Rule 4-3(k), and there is no merit to an appeal. Accordingly, we affirm appellant’s
convictions and grant counsel’s motion to withdraw.
5 Affirmed; motion to withdraw granted.
ABRAMSON and HIXSON, JJ., agree.
Eric Moore, for appellant.
One brief only.