2021 Ark. App. 297
Ark. Ct. App.2021Background
- Bennion pleaded guilty to possession of drug paraphernalia (Class D) and two counts of failure to appear (Class C) and was sentenced to 36 months’ probation on all counts in 2017.
- The State filed a petition to revoke probation alleging (1) new offense—second-degree domestic battery (Class C), (2) failure to pay fines/fees, and (3) missed supervision fees; an amended petition added prior positive drug tests for methamphetamine and THC and a later THC positive.
- At the November 25, 2019 revocation hearing the court admitted hospital records and played a detective’s body-camera statement by Bennion; the prosecution presented probation-officer testimony about positive drug tests and the new battery charge.
- Defense witnesses (family members) generally supported Bennion’s caretaking role and offered a letter by the child (J.W.) describing the incident; the trial court excluded the child’s letter for lack of foundation/hearsay.
- Trial counsel asked the court to defer sentencing until there was an adjudication on the new battery charge; the court revoked probation on all five alleged grounds and imposed an aggregate sentence of 312 months’ (26 years’) imprisonment.
- Appellate counsel filed a no-merit/Anders brief and moved to withdraw under Ark. Sup. Ct. R. 4-3(k); the Court of Appeals found the brief deficient for failing to list/address all adverse rulings (including the revocation and the request to defer sentencing) and ordered substituted briefing, denying the motion to withdraw without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of no-merit (Anders) brief under Ark. Sup. Ct. R. 4-3(k) | Bennion's counsel asserted the appeal was wholly without merit and claimed the record/brief included all adverse rulings. | The State relied on the brief as filed but the court must ensure procedural safeguards for Anders withdrawals. | Court: Brief was noncompliant — counsel failed to list/address all adverse rulings; rebriefing ordered and motion to withdraw denied without prejudice. |
| Sufficiency of evidence to support revocation (challenge to revocation) | Bennion argued evidence did not establish the new battery or other violations sufficiently to revoke probation. | State argued multiple independent bases supported revocation (drug positives, fees, and the new battery charge). | Court did not decide merits on sufficiency; instead found counsel failed to raise/address the revocation challenge in the no-merit brief and ordered rebriefing. |
| Exclusion of child’s letter (admission of defense evidence) | Bennion contended the letter was admissible (offered for non-hearsay purpose/foundation could be laid). | State objected on hearsay and lack of foundation; court sustained objection and excluded the letter. | Court noted the exclusion as an adverse ruling that counsel failed to address in the no-merit brief; required rebriefing. |
| Trial court’s immediate sentencing after defense request to defer until trial on new charge | Bennion’s counsel asked court to hold off sentencing until a factual finding/trial on the pending battery charge. | State proceeded that revocation hearing provided sufficient basis to revoke and sentence. | Court observed counsel did request a deferral and that counsel failed to address denial of that request on appeal; rebriefing ordered so issues can be briefed. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (establishes counsel-withdrawal framework when appellant’s counsel concludes appeal is frivolous)
- Sartin v. State, 362 S.W.3d 877 (Ark. 2010) (requires a no-merit brief to list and address all adverse rulings; deficiencies warrant rebriefing)
- Barbee v. State, 56 S.W.3d 370 (Ark. 2001) (sufficiency-of-evidence challenge to revocation may be raised on appeal without a directed-verdict motion)
- Jester v. State, 553 S.W.3d 198 (Ark. App. 2018) (appellant and State may stand on initial pro se points and briefs after rebriefing process)