Dianna Smith v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

DIANNA SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-458

JANUARY 24, 2001

APPEAL FROM THE CHICOT

COUNTY CIRCUIT COURT

[NO. CR-96-147-1]

HONORABLE DON EDWARD

GLOVER, CIRCUIT JUDGE

AFFIRMED

This is a no-merit appeal. On June 2, 1997, appellant Dianna Smith pleaded guilty to ten counts of forgery and two counts of theft by deception in the Chicot County Circuit Court. For this plea, she was placed on ten years of probation subject to certain written conditions, one of which was not to commit any felony, misdemeanor, or other criminal offense punishable by confinement. The State moved to revoke her probation, alleging that appellant committed felony theft by deception on May 5, 1999, by presenting an endorsed travel voucher to a bank and receiving $1,800 from the teller. The revocation hearing was conducted on September 7, 1999, after which the trial court found that the State had proven a violation by a preponderance of the evidence. Appellant was sentenced to two years of imprisonment in the Department of Community Punishment to be followed by ninety-six

months of suspended imposition of sentence, along with a fine of $2,000, court costs and restitution related to the original pleas. A notice of appeal was timely filed.

Pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and the Court of Appeals, appellant's counsel has filed a motion to withdraw as counsel on the ground that the appeal is without merit. Counsel's motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal and a statement of the reason why counsel considers there to be no point that might arguably support an appeal. Appellant was provided a copy of his counsel's brief and was notified of her right to file a pro se statement of points on appeal within thirty days, but no response was filed. The State informed this court that it does not intend to respond in the absence of any response by appellant, but it agrees that any appeal would be wholly without merit. We affirm appellant's revocation, and we grant counsel's motion to withdraw.

To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). On appellate review, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence, giving due regard to the trial court's superior position to determine credibility of the witnesses and the weight to be given their testimony. Id.; see also Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984). Because the burdens are different, evidence that is insufficient for a criminal conviction may besufficient for a probation revocation. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). Thus, the burden on the State is not as great in a revocation hearing.

The following is a chronology of events and a description of the rulings adverse to appellant. Prior to the revocation hearing, appellant's counsel filed a motion objecting to venue. Appellant was incarcerated in the Drew County jail on the underlying offense, and the revocation hearing was set to be heard there. When brought before the trial court, the trial court ruled that the motion was well taken, moving the case to be heard in Chicot County Circuit Court.

The revocation hearing was conducted on September 7, 1999. John Wisener, appellant's probation officer, testified that he filed the revocation petition alleging that appellant had violated the conditions of her probation in the following ways: committing a felony; failing to report to the probation office as required; failing to pay the probation supervision fee, court costs, restitution, and the fine; and failing to perform community service.

The bank teller, Leslie Johnson, took the stand and testified that she was eighteen years old and a student at the University of Central Arkansas, and that she had worked as a teller for the bank for about two weeks. She testified that appellant presented the voucher and her driver's license to her (Johnson) and that she cashed it. The voucher was sent to the travel company, which refused to pay the voucher and returned it to the bank. Thereafter, Johnson filled out an affidavit claiming that the voucher was an invalid check, attaching the voucher that had been given to her by a bank officer.

A criminal investigator from the Monticello Police Department, John Dement, testified that he investigated the alleged forgery. Dement interviewed the bank teller who had cashed the travel voucher, and Dement was presented the original travel voucher issued on May 1, 1999, from Norwegian Cruise Line to appellant in the amount of $1,800. Dement testified that white-out had been applied to the voucher deleting wording that he thought stated "Non-negotiable instrument." On the back of the voucher was a typed paragraph that described the terms and conditions of the vacation package. The investigator stated that an experienced bank teller should have had concerns about such a voucher's validity if presented with one. He acknowledged, though, that your first impression when you look at the document is that it appears to be a negotiable instrument.

Appellant's probation officer, John Wisener, testified that he was told by the investigating officer what had been alleged, and Wisener talked to appellant about it. Wisener reported that appellant stated that she had received the voucher in the mail, that she went to the bank, that she presented it to the teller, and that the teller cashed it.

Appellant's counsel moved for directed verdict, attacking the State's proof of intent to defraud on the basis that anyone should have known that this was not a check and should not have cashed it. Furthermore, counsel argued that there was no proof of when the white-out was placed on the voucher or who had placed it there. The motion was denied, as was the renewal of that motion at the close of the evidence.

There were evidentiary objections made on behalf of appellant during the course of the hearing. Some were sustained in appellant's favor (hearsay, proper foundation), somewere abandoned by appellant's counsel (hearsay, form of the question, request for taking judicial notice), and some were overruled (competency of witness, relevance of probation officer's recommendation) and thus adverse to appellant.

The trial court rendered his findings at the conclusion of the hearing. The judge stated that the voucher had been disfigured, had been cut around the outer edges, and was the weight of notebook paper, such that appellant should have known that it was not a check. Due to appellant's taking the voucher to the bank, receiving funds, and refusing to reimburse the bank after its return, the trial judge was satisfied that the State had met its burden of proof. The trial judge sentenced appellant to imprisonment and ordered $4,342 in restitution ($1,800 for the travel voucher and $2,542 for the underlying offenses for which she had originally pleaded guilty and received probation), payment of unpaid probation fees, court costs, and a $2,000 fine. Appellant's counsel argued that it was improper to order appellant to pay all these costs, fines, and restitutions since she was being sentenced to incarceration for the violation. The trial court deleted the $1,800 for the amount of the voucher, modifying the judgment and commitment order.

We first examine the sufficiency of the evidence to revoke her probation since appellant properly preserved the issue for appellate review. Ark. R. Crim. P. 33.1; King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999). Because the result of this case hinged directly on appellant's credibility, we hold that there can be no meritorious grounds for an appeal on this issue. We defer to the trial court's findings on credibility, and it is clear that the trial court found that appellant could not have unknowingly presented this voucher to the bank. Intent is seldom capable of direct evidence and must often be inferred from the circumstances. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). Just as appellant's counsel argued that it was obvious that this was not a check, so should appellant have been aware, and it is her intent that is at issue. This is particularly true when appellant's probation was founded on her pleas of guilty to multiple counts of forgery and theft by deception. There is a preponderance of the evidence to support the trial court's findings on this point.

As to the evidentiary rulings rendered by the trial court, we hold that they would not constitute grounds for reversal because the Arkansas Rules of Evidence do not apply to revocation proceedings. See Ark. R. Evid. 1101(b)(3); Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998).

Last, we examine appellant's request to be relieved of the duty to pay probation fees, court costs, fines, and restitution of $4,342. We agree with appellant's counsel that there is no merit to this point because the trial court corrected the judgment and commitment order to reflect a deletion of the $1,800 added in restitution since appellant was being charged separately for the offense of theft by deception regarding the travel voucher. The trial court was correct to reinstate the original fines, costs, fees and restitution because appellant had already been found guilty and ordered to pay these sums, and once a valid sentence is placed into execution, the trial court may not modify the sentence. Dehart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); see also Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000). Furthermore, appellant's counsel offered no authority or convincing argument toredact those monetary responsibilities, and this would render us unable to reach the point on appeal. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998).

Based upon our review of the record and the brief presented to us, we conclude that there has been full compliance with Rule 4-3(j) and that the appeal is without merit. Counsel's motion to withdraw is granted, and the revocation is affirmed.

Stroud, C.J., and Roaf, J., agree.