Arliss Whitney v. State of Arkansas

ar00-327

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-327

January 9, 2002

ARLISS WHITNEY AN APPEAL FROM CRITTENDEN

APPELLANT COUNTY CIRCUIT COURT

[CR96-611; CR96-622]

V. HON. GERALD PEARSON, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Arliss Whitney appeals from the revocation of his probation and suspended sentence. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j), appellant's counsel filed a previous no-merit brief and petitioned to withdraw as counsel. However, because counsel's original brief failed to analyze all of the adverse rulings against appellant and because the State failed to file a brief in response to appellant's pro-se points for reversal, we remanded for rebriefing.1

Appellant's counsel has submitted another no-merit brief, and appellant has resubmitted pro se points for reversal. Counsel's brief analyzes the adverse rulings that might support an appeal and demonstrates why the appeal is without merit. We affirm therevocation of appellant's sentence and grant counsel's request to be relieved.

In July 1996, appellant pled guilty to the Class Y felony of possession of a controlled substance with the intent to sell or deliver and was placed on probation for ten years. He also pleaded guilty to a second identical count for which he received a twenty-year suspended sentence. On October 18, 1999, the State filed a petition to revoke appellant's probation and suspended sentence, alleging, inter alia, that he failed to report to his probation officer as directed, failed to pay probation fees as required, that he possessed instruments of crime, possessed and used controlled substances, and associated with other felons.

At the close of all of the evidence presented during the revocation hearing, appellant's counsel moved for a directed verdict. The trial court concluded that there was substantial evidence to support the petition to revoke, thereby implicitly denying appellant's motion. Therefore, the court revoked appellant's probation and suspended sentence. The court ordered appellant to serve ten years on the first possession charge, to be followed by a twenty-year suspended sentence, and ten years based on the second possession charge. The sentences are to be served consecutively. The trial court subsequently denied appellant's motion to be released on an appeal bond. Appellant filed a timely notice of appeal with regard to his revocation, and later filed a timely notice of appeal with regard to the denial of his appeal bond.

I. Analysis of Adverse Rulings

Because this is an Anders appeal, we must conduct a full examination of allproceedings to decide whether the case is wholly frivolous. See Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001). In revocation proceedings, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his probation. See Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). In order for appellant's probation to be revoked, the State need only prove that he committed a single violation of the conditions. See Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). We will not reverse the trial court's decision unless its findings are clearly against the preponderance of the evidence. See Jones v. State, supra. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. See Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). Whether the State has met its burden turns on questions of credibility and weight to be given testimony, and we defer to the trial judge's superior position to make those determinations. See Jones v. State, supra.

A. Sufficiency of the Evidence

A defendant in a revocation hearing is not required to challenge the sufficiency of the evidence by a motion for a directed verdict in order to preserve the issue for appeal. See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). However, where such a motion is raised, we analyze the sufficiency of the evidence in the same manner as we do in any other criminal case. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Killian v. State, 60 Ark. App. 127, 128, 959 S.W.2d 432, 433 (1998). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. See id. When reviewing a denial ofa motion for a directed verdict, we will look at the evidence in the light most favorable to the nonmoving party, considering only the evidence that supports the judgment or verdict. See Darrough v. State, 330 Ark. 808, 957 S.W.2d 707 (1997). We will affirm if there is substantial evidence to support a verdict. See Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. See Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993).

The State presented testimony at the revocation hearing from Jim Russell, appellant's probation officer; Kathy McCorkle, an employee of the Sheriff's office who collects fines, costs and restitution payments; Detective Charlie Dabbs, who arrested appellant for possession of an instrument of crime while his probation and suspended sentence were in effect; and Doris Kimmons, a felon with whom appellant was arrested.

Russell testified that when appellant was placed on probation, Russell explained the conditions of appellant's probation to him, including the requirements that he report regularly, pay his fees, and that he not use any controlled substances or associate with others using controlled substances. He stated that appellant seemed to understand the conditions of his probation.

Russell stated that while appellant's suspended sentence and probation were still in effect, he pled guilty to possession of an instrument of crime and criminal impersonation2relating to an incident that took place, and was sentenced to serve one year in jail. He further testified that appellant failed to report for a seven-month period in 1998, only reported three times in 1999, and last reported in April 1999. Russell also stated that appellant had not paid his probation fees, and though some of appellant's probation fees had been converted to community service, appellant had also failed to perform any community service.

Finally, Russell testified that appellant either admitted to using or tested positive for cocaine use on eight different occasions in 1998 and 1999, and that Russell made arrangements for appellant to obtain counseling for his drug habit on several occasions, including the day he was arrested, but appellant failed to keep his appointments.

McCorkle testified that the total amount appellant owed on his fines and fees was $4,156, and that she had received no payment since June 11, 1996. She also testified that her records did not reflect that any of appellant's fees had been converted to community service. Dabbs testified that on October 11, 1999, appellant had outstanding warrants, and Dabbs learned that he was at a nearby motel. He stated that he asked the hotel clerk if she had a Doris Kimmons or Curtis Robbins (appellant's alias) registered. The clerk informed Dabbs that a Doris Kimmons was in room 214 and that there was a male registered with her.

Dabbs and other officers went to room 214. Dabbs knocked on the door, and three or four minutes later Kimmons opened the door. Dabbs asked if she was Doris Kimmons. She indicated that she was. Dabbs testified that he asked her if he could come into the room and she gave him permission to enter the room. He then told her he needed to speak toappellant. Dabbs stated that there was a lot of smoke in the room that based on his experience, smelled to him like crack cocaine. When appellant came out of the bathroom, Dabbs asked appellant his name, and he identified himself as Curtis Robinson. Dabbs then informed appellant he had outstanding arrest warrants and obtained a consent from Kimmons to search the room. The officers found three crack pipes on or under the bed and four push rods near the closet. The officers placed appellant under arrest for possession of an instrument of crime and interference with governmental operations (for providing the officer a false name).

Kimmons testified that she gave the officers consent to search, but stated that "I didn't have a choice." She admitted that she was a felon and that she had been smoking crack in the motel room.

Appellant then testified on his own behalf. He stated that he was unable to work due to a chronic asthma condition; that he was unable to pay his fines and fees because he was ill; and that he believed that his probation fees had been converted to community service. He stated that he did not believe that Russell accurately indicated how often he reported, but he admitted that he had missed at least three visits. He also stated that he called and informed Russell when he was not going to be able to attend his monthly meetings. Appellant admitted that he was a drug addict and that he informed Russell on several occasions that he could not pass a drug test. He also admitted that Russell set up counseling sessions for his drug habit, but stated that he could not attend because he did not have transportation. Finally, appellant admitted that he was smoking crack with Kimmons in the motel room on the day he was arrested, but stated that he did not know she was a felon at that time.

Because the State must only show by a preponderance of the evidence that appellant violated a single term of the conditions of his probation and suspended sentence, see Ramsey v. State, supra, we hold that the foregoing evidence is sufficient to demonstrate that a challenge to the sufficiency of the evidence supporting revocation would be whollyfrivolous.

B. Denial of Appeal Bond

After the trial court denied appellant's appeal bond, his counsel filed a notice of appeal with this court, on January 7, 2000. Appellant's counsel also filed a "Petition for Writ of Certiorari or Mandamus and /or Habeas Corpus" with the Arkansas Supreme Court, which was denied without comment by the Supreme Court on February 24, 2000. Therefore, it appears that any argument appellant may have in this respect is moot.

C. Other Adverse Rulings

We further hold that the remaining evidentiary adverse rulings do not provide meritorious grounds for an appeal in this case. First, when Detective Dabbs testified that the smoke in the hotel room smelled like crack cocaine, appellant objected, apparently on the basis of a lack of foundation. Before the trial court could rule on the objection, the State asked Dabbs if he had smelled crack smoke on other occasions, and whether the smoke in the hotel room had the same odor as the crack he had smelled before. Dabbs responded affirmatively to both questions.

It appears that the trial court committed no error in failing to overrule appellant's objection. First, the rules of evidence do not apply in revocation proceedings. See Ark. R. Evid. 1101. Second, if the rules of evidence did apply, it appears that the State's subsequent questions established adequate foundation that Dabbs was qualified to identify the smell of crack cocaine, and appellant did not make any further objections in this regard. Third, even if the officer's statement was conclusory and admitted without proper foundation, the errorwas harmless in light of appellant's admission that he had been smoking crack that day in the hotel room.

The second objection occurred when Dabbs testified that he proceeded to search the room after he obtained consent from Kimmons. Appellant's counsel then objected, and asked what steps the officers went through to obtain consent to search the room, and requested to see a copy of the consent form. In response, the State referred to condition 7 of the terms of appellant's suspended sentence, which provides that the defendant "shall consent and submit to search of his/her person, property, vehicle and residence by [a] probation officer or sheriff at any time, and to seizure of any evidence of a violation of this probation or suspension." The trial court overruled the objection on appellant's status as a probationer. In addition, Kimmons, not appellant, rented the room, and she admitted that she signed the consent form, although it apparently was not necessary, because she was also on probation. Thus, trial court committed no reversible error in this regard.

D. Order of Consecutive Sentences

The trial court ordered that appellant serve ten years in the Arkansas Department of Correction, followed by twenty years' suspended imposition of sentence, based on the original charge of possession of a controlled substance with intent to sell or deliver, a Class Y felony, and ten years based on the second identical charge. The final adverse ruling was the court's determination that these sentences were to run consecutively.

We hold that the trial court did not abuse its discretion in imposing consecutivesentences. Arkansas Code Annotated section 5-4-403(a) and (c)(Repl. 1997)3 provides that all sentences to the Arkansas Department of Correction are to run concurrently unless the court states otherwise or unless the sentence involves both a felony and a misdemeanor. Whether to run sentences concurrently lies solely within the discretion of the trial court. See Blagg v. State, 72 Ark. App. 32, 31 S.W.2d 872 (2000). Further, upon revocation, the trial court may impose any sentence it would have originally imposed. See Ark. Code Ann. § 5-4-309 (f) (Repl. 1997).4

Here, the original sentences were both Class Y felonies, so there was no requirement that the sentences be served concurrently. Further, Class Y felonies are punishable by a minimum of ten years and by a maximum of forty years to life. See Ark. Code Ann. § 5-4-401 (Repl. 1997). Therefore, the trial court was well-within its discretion in imposing both the original sentences and the sentences upon revocation, and its decision in that regard does not provide a meritorious basis for appeal.

II. Appellant's Pro Se Points for Reversal

Appellant first argues that his counsel should not be allowed to withdraw on the basis that he believes appellant has no meritorious basis for appeal. Appellant cites numerous authorities indicating that an accused has the right to be represented by counsel at all stages of criminal proceedings, including the presentation of his case on appeal. He seems to assert that his right to a "full appeal" will be violated if his counsel is allowed to withdraw fromthe case.

Appellant misapprehends counsel's obligation to him and to the courts. Appellant's counsel has an affirmative obligation as an officer of the court not to file an appeal on the merits where it appears that there is no meritorious basis for an appeal. However, pursuant to Rule 4-3(j) and Anders, supra, counsel will not be allowed to withdraw unless he presents an Anders brief analyzing all adverse rulings and demonstrating why an appeal would be without merit. Therefore, in essence, appellant's "full appeal" has been considered by this court.

The State fails to address appellant's arguments on the merits, and argues that this court need not address appellant's claims because they are conclusory and incomprehensible, and because appellant provides only bare citation to authority. Appellant's arguments may not be persuasive, but they are not incomprehensible. Further, a defendant is not required to submit any argument or authority in response to an Anders brief, but may merely submit points for reversal which he believes have merit. See Ark. Sup. Ct. R. 4-3(j)(2).

Appellant asserts that 1) his arrest for violating his probation was not based on probable cause because he committed no crime; 2) either his probation should not have been revoked or his appeal bond should not have been denied because at the time his probation was revoked, the disposition of his other criminal charges were still pending; 3) he should not have been imprisoned because he was committing no crime that made it necessary to imprison him in order to protect the public; 4 ) the twenty-year suspended imposition of sentence was improper because probation for a felony is legislatively fixed at a maximumof five years; 5) his sentence upon probation improperly included the suspension of his original sentence; 6 & 7) his sentence upon probation included the suspension of his original sentence but provided no supervised probation; 8 & 9) he was denied effective assistance of counsel in violation of his Fourteenth Amendment Due Process Rights and his Sixth Amendment right to counsel, because his counsel failed to request a psychiatric examination prior to the revocation hearing; 10 & 11) it was improper for the trial court to sentence him to jail time because his failure to pay was due to an inability to pay; 12) the evidence was insufficient to support revocation because Kimmons pled guilty to possession charges; he also appears to challenge the perpetual search probation condition; 13) the revocation of his original sentence based on separate conduct for which he had pled guilty constitutes double jeopardy; and 14) his consecutive sentence violates his Fourteenth Amendment right to Due Process because similar offenses that happen within the same year must run concurrently.

Appellant's first three arguments, based on his assertion that he committed no crime, are without merit. He admitted that he smoked crack in the hotel room the day he was arrested. Further, the fact that his criminal charges related to this case had not been disposed of at the time of the hearing did not preclude the court from finding that he violated the conditions of his probation by a preponderance standard. Moreover, it is clear that a defendant's double jeopardy rights are not violated because the State relied on conduct supporting criminal charges to support revocation of a probationary sentence, because revocation of probation results in punishment for the original offense; it is not a separatepunishment for behavior that was the catalyst for the revocation proceedings. See Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996).

Similarly, appellant's argument that he was entitled to a psychiatric hearing is without merit. Apparently, he would have this court hold that because he is addicted to crack and because drug addiction has psychological components, he was entitled to a psychiatric examination. Nothing in our law requires this.

Appellant is correct that it is improper to revoke probation where the sole basis is the failure to pay where the defendant did not wilfully refuse to pay. See Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997). However, as noted above, appellant's failure to pay was not the sole basis for revoking his probation; the trial court had alternative grounds upon which to base its revocation. Further, the fact that Kimmons pled guilty to possession charges does not negate that appellant also smoked crack.

To the extent that appellant appears to challenge the "perpetual search" condition for probationers, we have previously held that the condition of probation which requires a probationer to subject himself to a search at any time is not unconstitutional. See Wilson v. State, 25 Ark. App. 45, 752 S.W.2d 46 (1988). Moreover, Kimmons, who rented the room, testified that she consented to the search.

The remainder of appellant's arguments seem to involve the propriety of his sentences. He purports to challenge the imposition of his suspended sentence and the order that the sentences run consecutively. As noted above, the trial court was well-within its discretion to order that the sentences run consecutively.

Further, the trial court had the authority to invoke any sentence that it could have originally imposed. In this regard, the trial court could have originally sentenced appellant to serve ten years on the first Class Y felony followed by a twenty-year suspended sentence. Arkansas Code Annotated section 5-4-301(a)(1)(C) (Repl. 1997)5 provides that a court shall not suspend imposition of sentence as to a term of imprisonment or place a defendant on probation for a Class Y felony except to the extent permitted in section 5-4-104(c). Section 5-4-104(c)6 provides that a defendant convicted of a Class Y felony shall be sentenced to a term of imprisonment in accordance with sections 5-4-401 through 5-4-404. However, section 5-4-104(e)(1)(B)(3) expressly authorizes a court to suspend imposition of an additional term of imprisonment, as authorized by 5-4-104(e)(3) for Class Y felony offenders. Section 5-4-104(e)(3), in turn, provides that a court may sentence a defendant to a term of imprisonment and may suspend the imposition of an additional term of imprisonment. See also Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988).

Therefore, because the trial court could have originally sentenced appellant to serve a ten-year sentence followed by a twenty-year imposition of sentence, the court properly imposed this sentence upon revocation of appellant's probation.

Based on the foregoing authorities, we hereby affirm the trial court's order and grant counsel's motion to be relieved.

Affirmed.

Robbins and Roaf, JJ., agree.

1 See Whitney v. State, No. CACR 00-327, 2001 WL 195595 (Ark. Ct. App. Feb. 28, 2001).

2 Russell's testimony conflicts somewhat with Dabbs's in this respect, but it appears that appellant was charged with criminal impersonation, for providing Detective Dabbs with a false name, but the charge was subsequently changed to interference with governmental operations.

3 Now codified at Arkansas Code Annotated section 5-4-403(a) (Supp. 2001).

4 Now codified at Arkansas Code Annotated section 5-4-309(f)(1)(A)(Supp. 2001).

5 Now codified at Arkansas Code Annotated section 5-4-301(a)(1)(3) (Supp. 2001).

6 Now codified at Arkansas Code Annotated section 5-4-104(e)(1)(A)(iii) & (e)(3) (Supp. 2001).