2013 Ark. App. 713
Ark. Ct. App.2013Background
- In July 2009 Reginald E. Alls pleaded guilty to possession of a controlled substance and received a three-year probation term with conditions to pay fines/costs/fees and report to probation.
- The State filed a second petition to revoke probation in June 2012, alleging nonpayment and failure to report.
- At the November 1, 2012 revocation hearing, the State introduced a ledger showing partial payments and testimony from a collections employee and Alls’s probation officer about missed contacts and unpaid probation fees; Alls did not testify.
- The trial court found by a preponderance of the evidence that Alls violated probation and sentenced him to three years in the Department of Correction.
- Appellate counsel filed a no-merit brief and a motion to be relieved under Ark. Sup. Ct. R. 4-3(k); the court required rebriefing for procedural deficiencies, counsel corrected those filings, and Alls did not file pro se points.
- The Court of Appeals reviewed the revocation under the preponderance standard, considered an evidentiary objection about the probation officer’s recommendation, and concluded the appeal was wholly without merit, affirmed the revocation, and granted counsel’s motion to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the revocation lacked sufficient evidence | State: ledger and testimony show nonpayment and failure to report, meeting preponderance standard | Alls: (implicitly) challenges sufficiency; did not present testimony or excuse for nonpayment | Court: Affirmed — findings not clearly against preponderance; one proven violation sufficient to revoke |
| Whether Alls had a reasonable excuse for nonpayment | State: once nonpayment shown, burden shifts to Alls to explain; no excuse offered | Alls: no testimony or evidence offered to excuse nonpayment | Court: Held Alls failed to meet burden to go forward with an excuse |
| Admissibility / prejudicial effect of probation officer’s sanction recommendation | State: objected as invading court’s province | Alls: argued recommendation was proper for court consideration | Court: Not reversible — court accepted recommendation; Rules of Evidence generally inapplicable to revocation proceedings |
| Adequacy of appellate counsel’s no‑merit brief and motion to withdraw | State: no brief filed in response | Alls (via counsel): initially defective brief; later substituted brief complied with Rule 4‑3(k) and explained why adverse rulings lacked merit | Court: Grant motion — after rebriefing, no-merit showing adequate and appeal wholly without merit |
Key Cases Cited
- Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (Ark. Ct. App.) (counsel must follow Rule 4-3(k) when seeking to withdraw on no‑merit appeal)
- Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (Ark. Ct. App.) (court and counsel must fully examine proceedings to determine if appeal is frivolous)
- Gossett v. State, 87 Ark. App. 317, 191 S.W.3d 548 (Ark. Ct. App.) (appellate court defers to trial court credibility determinations in probation‑revocation proceedings)
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedural framework for counsel withdrawing on grounds appeal is frivolous)