539 S.W.3d 596
Ark. Ct. App.2018Background
- Whitmore was convicted (residential burglary and theft) and placed on 60 months probation in Jan. 2016 with monetary and reporting conditions.
- A petition to revoke probation was filed Sept. 20, 2016, and a supplemental petition plus violation reports followed alleging additional serious felony charges.
- At the March 7, 2017 revocation hearing, the probation officer testified Whitmore tested positive for controlled substances twice, failed to report on multiple occasions, left the state without permission, and was delinquent on monetary obligations.
- The circuit court found Whitmore violated probation and sentenced him to ten years in the Arkansas Department of Correction; two supplemental petitions were dismissed for insufficient proof.
- Whitmore filed a pro se notice of appeal but later sought to withdraw it and pursue a motion for reconsideration, which the court denied; appellate counsel filed an Anders/no-merit brief and moved to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency to revoke probation | Whitmore contended revocation was improper (argued errors in proceedings) | State relied on probation officer testimony showing multiple violations | Court: revocation sustained; preponderance standard met; defer to trial court credibility findings |
| Admission of Facebook posts | Whitmore argued posts were unreliable and lacked foundation | State argued evidence admissible in revocation proceedings where formal rules relaxed | Court: objection overruled; rules of evidence not strictly applied in revocation hearings |
| Admission of 911 dispatch information | Whitmore objected because declarant unavailable for cross-exam | State argued statements not offered for truth and rules relaxed in revocation context | Court: overruled; statements not hearsay and evidentiary rules not strictly applicable |
| Motion for reconsideration / sentence length | Whitmore argued reconsideration warranted and/or sentence improper | State noted sentence within statutory range for Class B felony and court discretion on punishment | Court: denied reconsideration; sentence (10 years) within statutory range and within court's discretion |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedural framework for counsel seeking to withdraw on appeal when appeal is frivolous)
- Hart v. State, 530 S.W.3d 366 (Ark. Ct. App.) (revocation reviewed for clear error; preponderance standard; deference to credibility findings)
- Newman v. State, 939 S.W.2d 811 (Ark.) (trial court discretion on evidentiary matters; abuse-of-discretion standard)
- Deere v. State, 954 S.W.2d 943 (Ark. Ct. App.) (circuit court has discretion to set punishment within statutory range)