Willie Lee Brown v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION II

WILLIE LEE BROWN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-100

September 18, 2002

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

CR-97-802, 803, 811, 1065

HON. DAVID BURNETT, JUDGE

AFFIRMED

Appellant, Willie Lee Brown, brings this appeal from the revocation of his suspended imposition of sentences. His sole point on appeal is that the revocation should be reversed because the trial court erred in denying his motion for continuance. We affirm.

On October 17, 1997, appellant entered a negotiated plea of guilty on four charges: first-degree battery; unlawful discharge of a firearm from a vehicle; felon in possession of a firearm; and possession of a controlled substance with intent to deliver. The trial court entered a suspended imposition of sentence of seventy-two months for the felon in possession of firearm charge and 120 months suspended imposition of sentence on each of the other three charges. The conditions of appellant's suspended imposition of sentences included that he pay all fines and costs; that he not violate any law; that he not possess any firearms; that he not associate with anyone he knew or had reason to believe had been convicted of a crime; that he notify his probation officer or the sheriff of any change of address or employment; that he report to his probation officer; and that he work faithfully at suitable employment.

On June 5, 2001, the State filed a petition for revocation alleging that appellant violated the conditions in the following ways: (1) failure to pay fines and costs as directed; (2) committing carnal abuse; (3) possession of a firearm as a felon; (4) failure to notify sheriff of address and employment; (5) failure to work regularly at suitable employment; (6) intimidation of a witness; (7) failure to appear; (8) association with others violating criminal laws; (9) committing first-degree battery; (10) committing unlawful discharge of firearm. A hearing on the petition for revocation was held on October 8, 2001, and the trial on the charges that served as a basis for the petition was scheduled for the following day.

At the hearing, appellant's counsel moved for a continuance to locate a witness named Tyrone King. Counsel explained that originally King had only been subpoenaed for the trial because he thought King's testimony was not needed for the revocation. However, just prior to the hearing, counsel decided to subpoena King to testify, but King was not located. Counsel argued that King was a material witness whose testimony would exonerate appellant of the first-degree battery charge, which served as a basis for the petition. As the State's supplemental abstract indicates, the trial court denied the motion for continuance, stating: "No, I'm not going to continue the case if there are nine different points [for revocation]. But on the particular point that this witness [King] might testify to, I might consider some proposal on that, but on the other eight I'm certainly going to hear it, and I'll wait to see what the significance of that point is."

At the conclusion of the revocation hearing, the trial court found appellant in violation of the conditions of his suspended imposition of sentences on the grounds that he failed to pay fines and costs, failed to report, associated with felons, attempted to intimidate and influence a witness, was in possession of a firearm, and had carnal knowledge of a fifteen year old. Upon revocation,appellant was sentenced to ten years' suspended imposition of sentence for battery, twenty-five years at the Department of Correction for unlawful discharge of a firearm from a vehicle, six years' suspended imposition of sentence for possession of a firearm by a felon, and twenty years at the Department of Correction for possession of a controlled substance, with the sentences to run concurrently.

Appellant contends that the trial court erred in denying appellant's motion for continuance. It is impossible for this court to address the merits of appellant's argument by solely considering the flagrantly deficient abstract and addendum contained in his brief. The abstract and addendum failed to include portions of the record that are necessary to our determination of the case, such as the notice of appeal, the State's petition for revocation, and relevant portions of the revocation hearing. Despite the deficiencies of appellant's brief, we can reach the merits of the case because we may go to the record to affirm. McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001).

Whether to grant a continuance is a matter lying within the sound discretion of the trial court and will not be overturned absent a showing of clear abuse of discretion. Jared v. State, 17 Ark. App. 223, 707 S.W.2d 325 (1986). It is also settled law that in the absence of a showing of prejudice, we cannot say the refusal of a continuance is error. Id. In the instant case, appellant has failed to demonstrate that the court abused its discretion or that he was prejudiced by the denial of a continuance. Appellant merely argues that by denying his motion for continuance, he was prevented the opportunity to defend the revocation; however, he fails to acknowledge that the trial court did not consider the battery charge in its decision to revoke.

As set out in the State's supplemental abstract, the trial court at the conclusion of the revocation hearing stated:

Okay, Mr. Malone, I understand what your motion is, and I have previously deniedthe motion for continuance, and I'm not considering the aspect of the charges involving the shooting of the two girls; in fact, [I] don't even think the Court has to reach that to find that Mr. Brown has violated 4 separate charges of failing to comply with the good conduct provisions; particularly he failed to pay fine[s] and costs, failed to report even at the first instance. That alone is enough to revoke him.

In addition to that the Court is making a specific finding that he was in association with felons which is in contradiction to the good conduct order.

I'm also finding that it's uncontradicted that he attempted to intimidate and influence a witness. I'm finding further that it's uncontradicted that he was in possession of a firearm, not to mention the fact that there's no contradiction to the assertion that he had carnal knowledge of a 15-year-old, all of which are sufficient justifications and reasons for revoking his previous sentences.

The trial court explained that it was not considering the battery in deciding to revoke appellant's suspended imposition of sentences. Appellant's probation was revoked for violations unrelated to the battery charge and King's testimony. It is well settled that the State need only prove that appellant committed one violation of the conditions to revoke. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Because the trial court did not base its revocation on the battery charge, appellant has not demonstrated that the trial court abused its discretion in denying the motion for continuance or that he was prejudiced by the denial. Therefore, we affirm.

Affirmed.

Jennings and Crabtree, JJ., agree.