2014 Ark. App. 41
Ark. Ct. App.2014Background
- Bishop pleaded guilty in Feb. 2010 to possession of pseudoephedrine with intent to manufacture methamphetamine and received two years’ probation.
- Probation included payment of fines, reporting to probation, and law-abiding conduct.
- In Nov. 2010, State moved to revoke probation, alleging nine violations including a third‑degree battery in Benton County.
- A March 2013 revocation hearing found a violation based on a Benton County judgment (CR2010-1508-1) for third‑degree battery in Oct. 2010.
- Sentence upon revocation: two years in ADC followed by four years’ suspended imposition of sentence.
- Appellant’s counsel filed a no‑merit brief under Ark. R. 4-3(k) and moved to be relieved; appellant did not file pro se points; State did not file a brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the revocation was supported by a preponderance of the evidence. | Bishop | Bishop contends the State failed to prove nonpayment or other violations by a preponderance. | Yes; the State proved at least one violation by preponderance. |
| Whether the no‑merit brief and relief request complied withRule 4-3(k) standards. | Bishop | Bishop’s counsel complied with the no‑merit brief standards; appellant did not file pro se points. | Compliant; counsel relieved. |
| Whether the court erred in relying on a certified Benton County judgment and parol status to revoke probation. | State | Appellant argues credibility and other factors should limit reliance on prior judgments. | No error; evidence sufficient under revocation standard. |
Key Cases Cited
- Campbell v. State, 74 Ark. App. 277 (Ark. App. 2001) (duty to conduct full no-merit review to protect constitutional rights)
- Amos v. State, 2011 Ark. App. 638 (Ark. App. 2011) (probation-revocation burden and standards)
- Gossett v. State, 87 Ark. App. 317, 191 S.W.3d 548 (Ark. App. 2004) (review of credibility and weight in revocation)
- Sanders v. State, 2012 Ark. App. 697 (Ark. App. 2012) (nonpayment evidence shifts burden to defendant for excuse)
- Alls v. State, 2013 Ark. App. 713 (Ark. App. 2013) (no-merit brief adequacy under Rule 4-3(k))