Tautiana Porter v. State of Arkansas

2020 Ark. App. 487

Opinion

Cite as 2020 Ark. App. 487 Reason: I attest to the ARKANSAS COURT OF APPEALS accuracy and integrity of this document DIVISION III Date: 2021-07-15 12:08:00 Foxit PhantomPDF Version: No. CR-19-497 9.7.5

Opinion Delivered: October 21, 2020 TAUTIANA PORTER APPELLANT APPEAL FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CR-16-80] V. HONORABLE BLAKE BATSON, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; MOTION TO WITHDRAW GRANTED

WAYMOND M. BROWN, Judge

Appellant Tautiana Porter appeals from the Clark County Circuit Court’s revocation

of her probation. Appellant’s counsel has filed a motion to withdraw and a no-merit brief

pursuant to Anders v. California,1 and Arkansas Supreme Court Rule 4–3(k), stating there

are no meritorious grounds to support an appeal. The clerk of this court mailed a certified

copy of counsel’s motion and brief to appellant, informing her of her right to file pro se

points for reversal; she has declined to do so. We previously ordered rebriefing of counsel’s

no-merit appeal due to briefing deficiencies.2 Because the deficiencies have now been cured

1 386 U.S. 738 (1967). 2 See Porter v. State, 2020 Ark. App. 343. and the appeal is wholly without merit, we affirm the revocation of appellant’s probation

and grant counsel’s motion to withdraw.

On September 5, 2017, appellant pleaded guilty to the following offenses: engaging

in continuing gang organization or enterprise in the second degree; fleeing; and eight counts

of theft of property. As a result of her guilty plea, appellant received a sentence of ten years’

probation, the conditions of which were signed by appellant.

The State filed a petition to revoke appellant’s probation on December 14, 2017,

alleging that she had violated the following five conditions of her probation: commission of

new criminal offenses; failure to abstain from possession of controlled substances; failure to

abstain from association with convicted felons; failure to pay fines, court costs, and/or

restitution; and failure to complete community-service hours as ordered. Following a

revocation hearing, the circuit court found that the State proved by a preponderance of the

evidence that appellant had violated her probation conditions. In an order entered on

February 15, 2019, appellant was sentenced to serve a total of forty years’ incarceration with

an additional thirty-five years’ suspended imposition of sentence. This timely appeal

followed.

At the revocation hearing, Jamie Vandiver, a probation officer at Arkansas

Community Corrections, testified to discussing the conditions of probation with appellant.

A copy of appellant’s signed conditions of probation was then admitted into evidence

without objection. Officer Vandiver further testified that appellant violated the conditions

of her probation by committing new criminal offenses for which she was convicted:

associating with convicted felons, failing to pay fines, costs, and restitution as ordered, and

2 failing to complete community-service hours. A sentencing order dated October 9, 2018,

reflecting an offense date of November 20, 2017, was entered into evidence. The

sentencing order reflects that, while on probation, appellant entered negotiated pleas of

guilty to breaking or entering, theft of property (two counts), and fraudulent use of a credit

card.

In probation-revocation proceedings, the State has the burden of proving that a

probationer violated the terms of his or her probation, as alleged in the revocation petition,

by a preponderance of the evidence, and we will not reverse the circuit court’s decision to

revoke probation unless it is clearly against the preponderance of the evidence.3 The State

need only show that the appellant committed one violation in order to sustain a revocation.4

Here, given that appellant was convicted of committing multiple new criminal offenses

while on probation, which is in clear violation of the terms and conditions of her probation,

a preponderance of the evidence supports the revocation of her probation.

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 is not a meritorious ground for reversal. 5 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

3 Dawson v. State, 2016 Ark. App. 558. 4 Id. 5 Ark. Sup. Ct. R. 4-3(k)(1).

3 explanation as to why each adverse ruling is not a meritorious ground for reversal. 6 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. 7 Pursuant to Anders,8 we are

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

proceedings.9

In compliance with the directives of Anders,10 in this no-merit brief, in addition to

the preponderance of the evidence supporting the revocation itself, counsel also addressed

two issues purporting to be adverse rulings that provide no meritorious grounds for reversal:

waiver of the circuit court judge’s disqualification from presiding over the revocation

hearing and appellant’s request for a more lenient sentence.

While not necessarily an adverse ruling to appellant, out of an abundance of caution,

counsel detailed the steps the judge took in disclosing that he had been the prosecuting

attorney when the underlying conviction originated and therefore was disqualified from

presiding over the revocation hearing unless appellant elected to waive the conflict of

interest. The judge then left the room and allowed appellant to confer with her counsel

out of his presence; when he returned, appellant stated her decision to waive the

6 Id. 7 Brown v. State, 2018 Ark. App. 367, 553 S.W.3d 787. 8 Supra. 9 T.S. v. State, 2017 Ark. App. 578, 534 S.W.3d 160. 10 Supra. 4 disqualification. The record supports counsel’s account that the circuit court strictly

complied with the procedure outlined in Rule 2.11 of the Arkansas Rules of Judicial

Conduct.

Counsel also addressed appellant’s request made during the sentencing phase of the

revocation hearing that the court give her “one more chance” or that the court sentence

her to fifteen years’ incarceration as opposed to the maximum range of incarceration to

which her convictions exposed her. In revoking appellant’s probation and sentencing her

to forty years’ incarceration with an additional thirty-five years suspended, the circuit court

denied her request for another chance or to be given a lighter sentence. Counsel has

adequately explained that because appellant was sentenced within the statutory range, there

is no meritorious argument to be made.

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.

Affirmed; motion to withdraw granted.

ABRAMSON and SWITZER, JJ., agree.

Robert M. “Robby” Golden, for appellant.

One brief only.