Phillip Horne, Jr. v. State of Arkansas

2020 Ark. App. 535

Opinion

Cite as 2020 Ark. App. 535 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-07-20 10:33:27 DIVISION III Foxit PhantomPDF Version: No. CR-19-815 9.7.5

Opinion Delivered: November 18, 2020

PHILLIP HORNE, JR. APPELLANT APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, V. NORTHERN DISTRICT [NO. 42PCR-17-35] STATE OF ARKANSAS APPELLEE HONORABLE JERRY RAMEY, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

WAYMOND M. BROWN, Judge

The Logan County Circuit Court revoked appellant Phillip Horne’s probation for

the underlying charge of delivery of methamphetamine. Appellant was sentenced to four

years’ incarceration with a judicial transfer to the Arkansas Department of Community

Correction. Pursuant to Anders v. California1 and Rule 4-3(k)(1) of the Rules of the Arkansas

Supreme Court and Court of Appeals, appellant’s attorney has filed a motion to withdraw

as counsel along with a no-merit brief asserting that there is no issue of arguable merit for

an appeal. Appellant was notified of his right to file pro se points for reversal, but he has

not filed any such points. We affirm and grant counsel’s motion to withdraw.

1 386 U.S. 738 (1967). Appellant was placed on four years’ supervised probation on July 17, 2017, for

delivery of methamphetamine. One of appellant’s conditions required the payment of fines,

fees, and costs. The State filed a petition to revoke appellant’s probation on December 17,

2018, alleging that appellant had violated the terms and conditions of his probation by

committing a new offense, possession of drug paraphernalia. An amended petition to revoke

was filed on April 8, 2019, alleging that appellant had violated the terms and conditions of

his probation by committing a new offense, possession of drug paraphernalia; by failing to

appear; and by failing to make timely payments.

A revocation hearing took place on July 12, 2019. Denise Kremers, deputy clerk for

the Logan County Sheriff’s Office, testified that appellant has an outstanding balance of $720

and made only four payments since being placed on probation.2 Appellant testified on his

own behalf and admitted that he was behind on his payments. However, he stated that he

paid hundreds at a time when he did pay. He testified that he had money in his pocket to

make a payment that day.

The circuit court found by a preponderance of the evidence that appellant had

inexcusably violated the terms and conditions of his probation. Appellant was sentenced to

four years’ incarceration with a judicial transfer to the Arkansas Department of Community

Correction pursuant to the sentencing order filed on July 15, 2019. This no-merit appeal

followed.3

2 Payments were made on September 22, 2017; and June 5, November 16, and December 10, 2018. 3 This is the second time this case has been before us. We initially ordered rebriefing and denied counsel’s motion to withdraw. See Horne v. State, 2020 Ark. App. 344.

2 Our court reviews the circuit court’s findings to determine if they are clearly against

the preponderance of the evidence, leaving any credibility calls and determinations of the

weight of evidence to the finder of fact.4 To revoke a probationary sentence, the State has

the burden of proving by a preponderance of the evidence that a condition of the

probationary sentence was violated.5 Proof of just one violation of the terms and conditions

of probation is sufficient to support revocation.6

A request to withdraw because the appeal is wholly without merit must be

accompanied by a brief that contains a list of all rulings adverse to appellant and an

explanation as to why each ruling is not a meritorious ground for reversal.7 The brief must

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. 8 In

deciding whether to allow counsel to withdraw from appellate representation, the test is not

whether counsel thinks the circuit court committed no reversible error but whether the

points to be raised on appeal would be wholly frivolous. 9 Pursuant to Anders, we are

4 Brown v. State, 2019 Ark. App. 325. 5 Id. 6 Id. 7 Ark. Sup. Ct. R. 4-3(k)(1). 8 Id. 9 Brown v. State, 2018 Ark. App. 367, 553 S.W.3d 787.

3 required to determine whether the case is wholly frivolous after a full examination of all the

proceedings.10

In compliance with Anders and Rule 4-3(k), counsel ordered the entire record and,

found that after a conscientious review of the record, there are no issues of arguable merit

for appeal. Counsel’s brief adequately covered all the adverse rulings as well as the

revocation itself. After carefully examining the record and the brief presented to us, we

hold that counsel has complied with the requirements established by the Arkansas Supreme

Court for no-merit appeals in criminal cases and conclude that the appeal is wholly without

merit. We affirm the revocation and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

KLAPPENBACH and HIXSON, JJ., agree.

Robert N. Jeffrey, Attorney at Law, by: Robert N. Jeffrey, for appellant.

One brief only.

10 T.S. v. State, 2017 Ark. App. 578, 534 S.W.3d 160.