Raymond Lewis v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, Judge

DIVISION II

RAYMOND LEWIS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR00-603

JULY 5, 2001

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT,

CR97-1248

HON. DAVID N. LASER, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

Raymond Lewis was arrested on December 13, 1997, for possession of cocaine with intent to deliver. Four days later, Lewis, age 17, pled guilty in Crittenden County Circuit Court to that charge, a Class Y felony, and was sentenced to ten years' probation and ordered to pay $1,375 in fines and costs. Among the conditions of his probation were requirements that Lewis "work faithfully at suitable employment;" report to his probation officer as directed; notify the sheriff of any changes of address; and pay fines and court costs. On January 5, 2000, the State petitioned to revoke Lewis's probation, alleging that he violated these conditions. At a hearing, the State presented evidence that Lewis had reported to his probation officer only eight times in the past two years, was $75 behind inhis probation fee, and had paid $400 on his $1,375 fine that day. Lewis's probation was revoked, and he was sentenced to five years in the Arkansas Department of Correction followed by five years' suspended imposition of sentence.

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, Lewis's counsel has filed a motion to withdraw on the grounds that there is no reversible error associated with the revocation proceeding. This motion was accompanied by a brief with an adequate abstract that demonstrated that Lewis's trial counsel made one hearsay objection and failed to move for a directed verdict at the close of the evidence as required by Rule 33.1 of the Arkansas Rules of Criminal Procedure and Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000)1. Accordingly, we agree that any merit appeal would be wholly frivolous.

We note that pursuant to Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals the clerk of this court furnished Lewis with a copy of his counsel's brief and notified him of his right to raise any points that he believed would support a merit appeal. Lewis has submitted such a document, and in it, he alleges ineffective assistance of counsel. However, this issue is not preserved for direct appeal due to Lewis's failure to raise the issue to the trial court during the hearing or by a post-hearing motion. Dougan v. State, 330 Ark.827, 957 S.W.2d 182 (1997). Accordingly, proceeding on this issue would, as well, be wholly frivolous.

Because Lewis's counsel has satisfied the requirements of Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals and the Anders procedural blueprint, we must affirm the revocation of Lewis's probation and grant his counsel's motion to withdraw.

Affirmed; motion to withdraw granted.

Bird and Baker, JJ., agree.

1 We are not unmindful that pursuant to Ark. Code Ann. § 5-4-309(d) (Supp. 1999), to revoke a suspended sentence, a trial court must find by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension and that in the instant case the trial judge only found by a preponderance of the evidence that Lewis failed to report and failed to pay his fines and costs. However, we are without authority to address this issue because it was not raised in a directed verdict motion.