Fleming v. State
2016 Ark. App. 340
Ark. Ct. App.2016Background
- In January 2014, Fred Fleming pled guilty (negotiated) to delivery of cocaine (Class C felony) and received a three-year suspended imposition of sentence with standard conditions (no law violations, pay fines/costs, notify probation/sheriff of address/employment, and avoid associations with persons who have committed crimes).
- The State filed a petition to revoke Fleming’s suspended sentence in August 2014 alleging multiple violations: nonpayment of fines/costs, failure to notify sheriff of current address/employment, two new cocaine deliveries, and improper associations.
- At the revocation hearing the court dismissed the failure-to-notify and association allegations for lack of proof, but found Fleming guilty of failing to pay fines/costs and of two counts of delivering cocaine.
- There were videotapes of two sales to a confidential informant, and Fleming testified he was the person in the videos selling what proved to be cocaine.
- The trial court revoked Fleming’s suspended sentence and sentenced him to eighteen months in a community corrections center followed by a three-year suspended imposition of sentence.
- Fleming appealed; appellate counsel filed an Anders brief and moved to withdraw; Fleming did not file pro se points. The Arkansas Court of Appeals affirmed and granted counsel’s motion to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether revocation was supported by a preponderance of the evidence | State: evidence (videotapes + Fleming’s admission) showed at least one violation (delivery of cocaine) sufficient to revoke | Fleming: appeal argued no meritorious ground; generally contested sufficiency implicitly via appeal | Court: affirmed revocation; Fleming’s admission plus videos met preponderance standard |
| Applicable burden and standard of review on revocation | State: must prove violation by preponderance; only one violation needed | Fleming: challenged revocation on appeal; argued no reversible error (no pro se points submitted) | Court: applied preponderance standard and deferred to trial court credibility findings; upheld unless clearly against preponderance |
| Whether evidence insufficient because lower than criminal standard | Fleming: could argue evidence insufficient for conviction and thus for revocation | State: preponderance is lower than beyond a reasonable doubt; may uphold revocation even if criminal conviction standard not met | Court: noted lower burden; evidence (admission + video) sufficient for revocation |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (establishes procedure for counsel to withdraw on appeal when the appeal is frivolous and requires providing appellant a copy and opportunity to raise pro se points)
- Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005) (on revocation the State bears the burden by a preponderance of the evidence and appellate courts defer to trial court credibility determinations)