Smith v. State

2016 Ark. App. 333

• Court: Court of Appeals of Arkansas
• Decided: June 22, 2016
• Docket: CR-15-765
• Status: Published

Opinion

Cite as 2016 Ark. App. 333

ARKANSAS COURT OF APPEALS DIVISION III No. CR-15-765

MARCUS D. SMITH Opinion Delivered June 22, 2016 APPELLANT APPEAL FROM THE CRITTENDEN V. COUNTY CIRCUIT COURT [NO. CR-2011-1048]

STATE OF ARKANSAS HONORABLE JOHN N. APPELLEE FOGLEMAN, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

BART F. VIRDEN, Judge

Counsel for appellant Marcus Smith has filed this no-merit appeal and motion to

withdraw from the sentencing order revoking his probation. Pursuant to Arkansas Supreme

Court Rule 4-3(k)(1) (2015), and Anders v. California, 386 U.S. 738 (1967), counsel’s brief

asserts that there is no issue of arguable merit to present on appeal. Because we agree, we

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

On October 31, 2011, Smith entered a negotiated plea on a charge of possession of

pseudoephedrine with the purpose to manufacture methamphetamine, a Class D felony, and

was sentenced to eighteen months’ probation. Smith was ordered to pay fines, court fees and

costs, and probation fees; and he was directed to obey the terms and conditions of his

probation.

On October 4, 2012, the State filed a petition to revoke Smith’s probation, alleging Cite as 2016 Ark. App. 333

that he had failed to pay fines, costs, and fees; that he failed to report to the probation office;

that he failed to notify the sheriff and probation officer of his current address and employment;

and that he departed from his approved residence without permission. After a hearing on

March 28, 2013, Smith’s probation was revoked, and the circuit court sentenced him to

thirty-six months’ probation conditioned upon serving ninety days in the Crittenden County

jail. The conditions of his probation were, among other things, that he must report to his

probation officer; pay fines, court costs, and probation fees; and cooperate with his probation

officer and report to him or her as directed.

On May 6, 2014, the State filed a petition to revoke alleging that Smith failed to report

to his probation officer; failed to pay fines, costs, and fees as directed; and that he failed to

notify the sheriff of his current address and employment.

At the hearing on May 27, 2015, Amy Peyton, who collects court-imposed fines and

fees for the Crittenden County Sheriff’s Office, testified that Smith was ordered to pay $1770

in court fines, costs, and fees in monthly payments of $95. She testified that Smith made one

$75 payment in December 2011 and another payment of $100 on the day of the hearing.

April Thomas, Smith’s parole supervisor, testified that Smith failed to make some of his

scheduled appointments and that he had not been to an appointment since August 14, 2013.

At the hearing, Smith testified about his inability to pay fines, costs, and fees, and about

his failure to report to his probation officer. Smith testified that at the present time, he, his

girlfriend, and his children were living in a van, or sometimes at hotels or friends’ homes. He

testified that for a while he had been living with his mother but that she had made him leave

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when Smith helped convict his brother of molesting Smith’s son. Smith testified that around

seven months prior to the hearing, he had been living in a three-bedroom home through an

assistance program that helped people find jobs and adhere to the conditions of probation.

Smith testified that he was working for a construction company and that he earned about

$280 a week, but that he had not worked from June 2013 until a week and a half prior to the

hearing. Smith testified that he relied on the city bus and his grandmother for transportation.

At the conclusion of the testimony, the circuit court stated that it was sympathetic

toward Smith’s predicament but that it found that Smith had inexcusably failed to report to

his probation officer. The circuit court revoked Smith’s probation and sentenced him to two

years’ imprisonment in the Arkansas Department of Correction. The circuit court also found

that Smith’s fines and costs would be satisfied with this sentence.

Counsel’s no-merit brief on appeal discusses the circuit court’s sole adverse ruling, the

revocation of his probation, and explains why it is not a meritorious ground for reversal.

Smith has not raised pro se points for reversal; accordingly, the State declined to file a

responsive brief.

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. Williams v.

State, 2013 Ark. App. 422, at 3. The circuit court is required to find only one violation of

Smith’s probation conditions in order to revoke probation. See Harris v. State, 98 Ark. App.

264, 267, 254 S.W.3d 789, 792 (2007). On appeal, a revocation will not be overturned unless

the decision is clearly against the preponderance of the evidence. Id. Because this

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determination turns on questions of credibility and the weight to be given testimony, we defer

to the circuit court’s superior position. Rogers v. State, 2014 Ark. App. 310, at 2.

Having carefully examined the record and the brief presented to us, we hold that

counsel has complied with Rule 4-3(k)(1) and Anders, supra, and that there is no merit to this

appeal. The State presented evidence through Smith’s parole supervisor, April Thomas, that

Smith failed to report to his probation officer as ordered. Additionally, Smith admitted all

allegations and testified that he had transportation available to him and that he knew where

the probation office was located. Though he testified that he had endured personal hardship

during his probation, he admitted that he had failed to attend most of his scheduled

appointments and that he had the means to keep his appointments.

The circuit court exercised its role as the finder of fact and made a determination of

credibility with regard to Smith’s explanation for failure to report. Therefore, we hold that

the circuit court’s finding that Smith inexcusably failed to report to his probation officer was

not clearly against the preponderance of the evidence. Accordingly, we affirm and grant

counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

ABRAMSON and GRUBER, JJ., agree.

Tyler Ginn, for appellant.

No response.