White v. State

2015 Ark. App. 24

• Court: Court of Appeals of Arkansas
• Decided: January 21, 2015
• Docket: CR-14-653
• Status: Published

Opinion

Cite as 2015 Ark. App. 24

ARKANSAS COURT OF APPEALS DIVISION II No. CR-14-653

Opinion Delivered January 21, 2015

RICKY DALE WHITE APPEAL FROM THE CRITTENDEN APPELLANT COUNTY CIRCUIT COURT [NO. CR-09-16] V. HONORABLE RALPH WILSON, JR., JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; MOTION GRANTED

KENNETH S. HIXSON, Judge

In October 2009, appellant Ricky White pleaded guilty to being a felon in possession

of a firearm before the Crittenden County Circuit Court in exchange for a six-year

probationary term. Among the conditions of appellant’s probation were requirements that

he pay all fines, costs, and fees as directed; that he report to probation as directed; that

he promptly notify law enforcement of any change of address or employment; and that

he not move or remain out of the jurisdiction of the court unless granted permission. In

June 2011, the State filed a petition to revoke his probation, contending that appellant

violated these conditions. After a revocation hearing in April 2014, the trial court found, by a

preponderance of the evidence, that appellant inexcusably violated these conditions. In the

judgment that followed, appellant was sentenced to two years of imprisonment to be followed

by two years of suspended imposition of sentence. Cite as 2015 Ark. App. 24

On appeal, appellant’s attorney filed a no-merit brief along with a motion to be

relieved as counsel for our consideration, asserting that there is no issue of arguable merit to

present. Counsel cites to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme

Court Rule 4-3(k) as authority to proceed on the motion to withdraw in a no-merit appeal.

A request to withdraw on the ground that the appeal is wholly without merit shall be

accompanied by a brief including an abstract and addendum; the brief shall contain an

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

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

ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1) (2014). Appellant was provided a copy of

his attorney’s brief and motion, notifying him of his right to present pro se points for reversal,

but appellant did not file any pro se points. The State elected not to file a brief with our

court. In furtherance of the goal of protecting constitutional rights, it is both the duty of

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

decide if an appeal would be wholly frivolous. Campbell v. State, 74 Ark. App. 277, 47

S.W.3d 915 (2001).

Counsel states that the only adverse ruling to appellant was the decision to revoke his

probation. In a revocation proceeding, the State need establish only one of the bases alleged

in its petition to revoke, and the burden is by a preponderance of the evidence. Ark. Code

Ann. § 16-93-308(d) (Supp. 2013). The trial court, in order to revoke probation, must find

that the defendant inexcusably failed to comply with a condition of probation. James v. State,

2012 Ark. App. 429. Our court reviews the trial court’s findings to determine if they

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are clearly against the preponderance of the evidence, leaving any credibility calls and

determinations of the weight of evidence to the finder of fact. Rudd v. State, 76 Ark. App.

121, 61 S.W.3d 885 (2001).

Where the alleged violation involves the failure to pay ordered amounts, after the State

has introduced evidence of nonpayment, the burden shifts to the probationer to provide a

reasonable excuse for the failure to pay. Vail v. State, 2014 Ark. App. 407, 438 S.W.3d 286.

It is the probationer’s obligation to justify his failure to pay, and this shifting of the burden of

production provides an opportunity to explain the reasons for nonpayment. Scroggins v. State,

2012 Ark. App. 87, 389 S.W.3d 40. The State, however, shoulders the ultimate burden of

proving that the probationer’s failure to pay was inexcusable. Id. Because the determination

of a preponderance of the evidence turns on questions of credibility and weight to be given

testimony, we defer to the trial court’s superior position. Sherril v. State, 2014 Ark. App. 411,

439 S.W.3d 76.

After carefully examining the record and brief presented to us, we find compliance

with Rule 4-3(k) and Anders, and we hold that there is no merit to this appeal. Amy Peyton

testified on behalf of the sheriff’s office, stating that she was the employee in charge of

collecting fines, fees, and costs from probationers. Peyton testified that appellant had

made six $50 payments as required, totaling $300, toward his more than $2400 owed.

Appellant was to commence his $50 per month payments in December 2009, which he did,

but payments ceased after June 2010. A copy of the record of appellant’s assessments and

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payments was entered into evidence. This was proof of a serious and long-term delinquency

on payments due.

Appellant testified, stating that he did not pay as scheduled, despite consistently

working in a remodeling business and operating heavy equipment for a salvage yard. Appellant

said that he and his wife, who also worked, were taking care of their household and children.

Appellant acknowledged that he was obligated to report monthly to his probation officer but

did not comply. Appellant did not deny leaving West Memphis in 2010 to visit family for

a few months and then moving back to his home in Texas, all without having permission

from law enforcement to do so. In sum, appellant recognized that he made the wrong choice

to leave. He wanted another chance to comply.

At the conclusion of the hearing, the trial court found that appellant clearly violated

the conditions of his probation without reasonable excuse. The trial court specifically noted

appellant’s failure to make any $50 monthly payments on his fines and court costs after June

2010 despite having the ability to make payments by virtue of the jobs he held. The trial

court also specifically found appellant to have violated the condition that he keep law

enforcement notified of any change in address or employment and the condition that he

report monthly, finding that appellant absconded from the state without permission. All of

these findings depended on the trial court’s assessment of appellant’s credibility and the weight

to be given his testimony, in light of the undisputed failures to comply. We hold that there

was no clear error in finding that appellant inexcusably violated the conditions of his

probation. Consequently, there is no issue of arguable merit to raise on appeal.

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Affirmed; motion granted.

GLADWIN, C.J., and WHITEAKER, J., agree.

C. Brian Williams, for appellant.

No response.