Michael Wiley v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION I

MICHAEL WILEY,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-472

JANUARY 31, 2000

APPEAL FROM THE GARLAND COUNTY COURT,

NO. CR98-418 & CR99-91,

HON. EDWARD T. SMITHERMAN, JR., JUDGE

AFFIRMED

On March 31, 1999, appellant Michael Wiley pled guilty to forgery in the second degree and to breaking and entering. He was placed on probation for ten years in the forgery case and for six years in the breaking-and-entering case. The sentences were to run concurrently. The terms of his probation included, among other requirements, reporting to his probation officer, paying supervision fees, remaining employed, not moving residences without permission, obeying all federal and state laws, and paying court costs and restitution.

In November 1999, a violation report was filed, contending that he had violated the terms of his probation by not reporting to his probation officer in May, July, September, October, and November 1999 and by not paying his supervision fees, court costs or restitution. A show cause petition was also filed ordering Wiley to appear and explain why his probation should not be revoked.

On January 11, 2000, a hearing was held on the matter. Larry Douglas, Wiley's

probation officer, testified that, as part of Wiley's probation, he was instructed to report to him on a monthly basis and that Wiley had not reported during May, July, September, October or November of 1999, that he had never made a payment toward his supervision fees and was in arrears $100, and that Wiley had not paid any restitution, as ordered. On cross-examination, Douglas stated that he received a fax stating that Wiley had been admitted to the VA Hospital on August 9, 1999, and was to be discharged on September 2. He stated that he then received a phone call from Wiley on August 13, at which time he told Wiley to contact him as soon as he was released.

After Douglas's testimony, Wiley asked for a continuance in order to obtain medical documentation. The court granted the continuance for one week. However, it granted another continuance when Wiley appeared at the rescheduled hearing, stating that he was unable to obtain the documents. At the next scheduled hearing, Wiley still had not obtained the documentation, and his counsel stated, "We tried to find out about the records and were never able to get them, so the Defense would rest on this case and just allow the court to decide based on the previous testimony."

The court found that Wiley had willfully and inexcusably violated the conditions of his probation by failing to report to his probation officer, by failing to pay supervision fees, and by failing to pay restitution.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Wiley's counsel has filed a motion to withdraw on the grounds that this appeal is without merit.

Wiley's counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with a list of objections made by Wiley and ruled on by the court, a record of all motions and requests made by Wiley and denied by the court, and a statement of the reasons why counsel considers there to be nothing in the record that will support the appeal. The State concurs that Wiley's counsel has complied with Rule 4-3(j) and that the appeal has no merit. The clerk of this court furnished Wiley with a copy of his counsel's brief and notified him of his right to file a pro se statement of points on appeal. Wiley has not filed a statement.

Wiley's counsel contends that the only adverse ruling to Wiley during the revocation proceedings was the decision of the trial court granting the State's petition to revoke his probation. However, because Wiley's counsel did not move for a directed verdict either at the end of the State's case or at close of all the evidence, pursuant to Ark. R. Crim. P. 33.1, we cannot address the sufficiency-of-the-evidence argument. See Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000) (holding that Ark. R. Crim. P. 33.1 requires a defendant in a revocation proceeding to move for dismissal, stating the specific grounds therefor, in order to preserve the question of the sufficiency of the evidence to support the verdict or judgment). See also Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000).

Even if we were to reach the merits, we would affirm the court's granting of the State's motion for revocation. To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). On appellate review, the trial court's findings willbe upheld unless they are clearly against a preponderance of the evidence. Id. Testimony was presented that Wiley had failed to report to his probation officer for several months and that he had not paid his supervision fees or restitution.

In addition, Wiley's counsel's argument section also states that the sentence imposed is authorized by statute. Arkansas Code Annotated section 5-4-309 authorizes a trial court to impose any sentence that might have originally been imposed for the offense. Forgery in the second degree is a Class C Felony, Ark. Code Ann. § 5-37-201 (Repl. 1997), which has a sentence requirement of not less than three years nor more than ten, Ark. Code Ann. § 5-4-401 (Repl. 1997), and breaking and entering constitutes a Class D felony, Ark. Code Ann. § 5-39-202 (Repl. 1997), which carries of sentence of not more than six years, Ark. Code Ann. § 5-4-401 (Repl. 1997). Therefore, the court's imposition of a sentence of seven years and restitution for forgery in the second degree, and of four years on the breaking-and-entering conviction, was not in error.

Therefore, from our review of the record and briefs presented, we find there has been full compliance with the requirements of Rule 4-3(j) of the Rules of the Arkansas Supreme Court and the Court of Appeals and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Hart and Griffen, JJ., agree.