Radford v. State

2017 Ark. App. 402

• Court: Court of Appeals of Arkansas
• Decided: June 21, 2017
• Docket: CR-16-572
• Status: Published

Opinion

Cite as 2017 Ark. App. 402

ARKANSAS COURT OF APPEALS DIVISION II No. CR-16-572

Opinion Delivered: June 21, 2017

TOMMY LEE RADFORD APPEAL FROM THE OUACHITA APPELLANT COUNTY CIRCUIT COURT [NO. 52CR-13-183] V.

STATE OF ARKANSAS HONORABLE ROBIN J. CARROLL, APPELLEE JUDGE AFFIRMED; MOTION TO WITHDRAW GRANTED

WAYMOND M. BROWN, Judge

Appellant Tommy Lee Radford appeals the Ouachita County Circuit Court’s order

revoking his suspended imposition of sentence (SIS) on an underlying charge of residential

burglary. He was sentenced to 129 months’ imprisonment in the Arkansas Department of

Correction. Appellate counsel has filed a no-merit brief pursuant to Anders v. California, 1

and Arkansas Supreme Court Rule 4-3(k), 2 along with a motion to withdraw as counsel,

asserting that there is no issue of arguable merit for an appeal. Appellant was provided with

a copy of counsel’s motion and brief and was informed of his right to submit pro se points

1 386 U.S. 738 (1967). 2 (2016). Cite as 2017 Ark. App. 402

for reversal. Appellant has filed pro se points, and the State has filed a brief in response. We

affirm and grant the motion.

On October 13, 2014, appellant pled guilty to residential burglary and was sentenced

to fifteen months in the Ouachita County Jail with an additional 129 months’ SIS. The

suspended sentence was conditioned on “good behavior.” The State filed a petition to

terminate appellant’s SIS on February 24, 2015, alleging that appellant had violated the

conditions of the SIS by knowingly providing false information to law enforcement when

registering as a sex offender in a separate case and by being charged with additional crimes

in Ouachita County. The State filed an amended petition to terminate appellant’s SIS on

January 25, 2016, outlining the new crimes for which appellant had been charged: two

counts of threatening a judicial officer, terroristic threatening, and as a habitual offender.

The revocation hearing took place on February 11, 2016. Barbara Quarles testified

that she was the domestic-violence advocate and that she also registered sex offenders for

the City of Camden. She stated that she was involved with the registration of appellant.

She said that appellant filled out a change-of-address form listing 706 Agee as his new

residence. She stated that she learned in January 2015 that the address did not exist.

Ben Opelt testified that he was a sergeant with the Camden Police Department. He

stated that he arrested appellant on January 28, 2015, for failing to register as a sex offender.

He said that he escorted appellant back to the jail after appellant’s first appearance and that

when they were out of the sight and sound of the judge, appellant immediately started

calling him (Opelt) “harassing names,” including a “bitch.” He said that appellant

2 Cite as 2017 Ark. App. 402

threatened to rape him, his wife, and Judge Keaton. He also said that appellant directed

sexual insults towards Quarles.

Quarles testified that she was present in January 2015 after appellant’s first appearance

for failing to register as a sex offender. She stated that Sergeant Opelt’s testimony was

consistent with what she had heard and seen on that date.

Appellant testified that he inadvertently gave the wrong address when he filled out

the change-of-address form. He stated that the correct address was 703 Union Street, and

that he had gotten the addresses mixed up because he had just finished fifteen months in jail

and was experiencing amnesia from when he was shot in the head. He contended that he

never violated his registration by leaving town or the state. He stated that he tried to explain

to Judge Keaton at the first appearance that it was just a mistake but that the judge “didn’t

want to acknowledge it.” He denied making threats against Judge Keaton. He

acknowledged that he and Sergeant Opelt got into an argument in which they both said

derogatory things. He denied making any threats toward anyone and presented the court

with witness statements. He further stated, “And if I did make a threat at Detective Opelt,

he came back like seven days later and escorted me to another first appearance, so I couldn’t

have been too much of a threat to him if he came back.”

On cross-examination, appellant reiterated that he got the address mixed up and that

it was just an inadvertent mistake. He admitted that he never lived at 706 Agee. He said

that Sergeant Opelt’s testimony was false except for the fact that they got into an argument.

He also stated that Quarles’s testimony was not true. He denied making any threats.

3 Cite as 2017 Ark. App. 402

After the conclusion of the hearing, the court found that appellant had violated the

conditions of his SIS and sentenced him to 129 months’ imprisonment. This appeal

followed.

A request to be relieved as counsel on the ground that the appeal is wholly without

merit shall be accompanied by a brief, including an abstract and addendum. 3 The brief shall

contain an argument section that consists of a list of all rulings adverse to the defendant made

by the trial court with an explanation as to why each adverse ruling is not a meritorious

ground for reversal. 4 In furtherance of the goal of protecting constitutional rights, it is the

duty of both counsel and this court to perform a full examination of the proceedings as a

whole to decide if an appeal would be wholly frivolous. 5

Here, counsel has adequately explained why an appeal would be wholly frivolous.

As a condition of appellant’s SIS, he was required to be on good behavior. The State

produced witnesses who testified that appellant threatened to rape certain persons and made

other harassing statements. The State need only prove that the defendant committed one

violation of the conditions. 6 Although appellant denied making the threats, the court was

not required to believe appellant’s version of events or that of appellant’s witnesses. 7

3 Ark. Sup. Ct. R. 4-3(k)(1). 4 Id. 5 Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001). 6 Hill v. State, 2012 Ark. App. 493. 7 Id.

4 Cite as 2017 Ark. App. 402

In his pro se points for reversal, appellant contends that he should not have been

found in violation for failing to register as a sex offender in a separate case. According to

appellant, the registration requirement predated the charge for which he was placed on SIS,

and thus, could not form the basis of the revocation. Because appellant’s SIS was revoked

on multiple grounds, we need not address his failure to register as a sex offender.

From our review of the record and the brief presented to us, including consideration

of appellant’s pro se points for reversal, which are either not preserved for appeal or do not

otherwise support reversal, 8 we find compliance with Rule 4-3(k) and that there is no merit

to an appeal. Therefore, we affirm appellant’s revocation and grant counsel’s motion to

withdraw.

Affirmed; motion to withdraw granted.

HARRISON and VAUGHT, JJ., agree.

N. Mark Klappenbach, for appellant.

Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.

8 Appellant fails to cite authority or make convincing argument that would arguably support a reversal.