Fabious Myles v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

FABIOUS MYLES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-774

January 14, 2004

APPEAL FROM THE MISSISSIPPI

COUNTY CIRCUIT COURT

[CR-2000-58, CR-99-69]

HONORABLE CHARLES DAVID

BURNETT, CIRCUIT JUDGE

REVERSED AND DISMISSED IN

CR-99-69; AFFIRMED IN

CR-2000-58

John F. Stroud, Jr., Chief Judge

In this case, which involves two separate counts, CR-99-69 and CR-2000-58, appellant's counsel originally attempted to withdraw from continued representation of appellant pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals on the basis that there was no merit to appellant's appeals. In an unpublished opinion, Myles v. State, CA CR 02-774 (June 25, 2003), this court ordered rebriefing in the matter of CR-99-69 and was silent as to the merits of CR-2000-58. Appellant's counsel has now tendered a rebriefed appeal in adversarial form with regard to CR-99-69, arguing that the trial court was without jurisdiction to revoke appellant's probation in that case, and counsel also still maintains that pursuant to Anders and Rule 4-3(j) that there is no merit to an appeal in CR-2000-58. The State concurs with those conclusions. We hold that the trial court was without jurisdiction to revoke appellant's probation in CR-99-69; therefore, we reverse and dismiss CR-99-69. We further affirm appellant's conviction in CR-2000-58 and grant counsel's motion to withdraw as appellant's attorney.

Appellant, Fabious Myles, pleaded guilty to the offense of possession of a controlled substance, cocaine, on April 12, 1999 (CR-99-69). On that same date, a judgment and commitment order was entered ordering Myles to serve three years' probation. Myles entered a guilty plea to the offense of burglary on May 12, 2000, and was sentenced to forty-two months in the Department of Correction, with a suspended imposition of sentence of sixty months (CR- 2000-58). Both orders contained provisions that required Myles to live a law-abiding life.

On April 15, 2002, two separate petitions for revocation were filed, one pertaining to the CR-99-69 conviction and one pertaining to the CR-2000-58 conviction. Both revocation petitions alleged that on January 10, 2002, Myles violated the terms of his probation and suspended sentence by "unlawfully and feloniously employing physical force upon Daniel George with the purpose of committing a theft, and by fleeing on foot after the incident."

A hearing on both revocation petitions was held on April 16, 2002. After taking testimony, the circuit judge revoked both Myles's probation and suspended sentence. A judgment and commitment order was entered on that same day in CR-99-69, revoking Myles's probation and sentencing him to ten years in the Arkansas Department of Correction. Likewise, a judgment and commitment order was entered that day in CR-2000-58, revoking Myles's suspended sentence and sentencing him to ten years in the Arkansas Department of Correction. The circuit judge ordered the sentences to run concurrently.

Upon rebriefing after remand, appellant's counsel argues that the trial court erred in revoking appellant's probation in CR-99-69 because it lacked jurisdiction to do so. The issue of whether a circuit court can revoke probation after the expiration of the probationary period is a jurisdictional issue. Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002); Harris v. State, 80 Ark.

App. 181, 92 S.W.3d 690 (2002). A trial court may revoke a suspension or probation subsequent to the expiration of the period only if the defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for such violation before expiration of the period of suspension or probation. Id.; see Ark. Code Ann. § 5-4-309(e) (Supp. 2001).

In CR-99-69, appellant was sentenced to three years' probation on April 12, 1999; therefore, appellant's three-year probation in CR-99-69 ended on April 12, 2002. Although the record indicates that appellant was arrested for robbery and fleeing on January 10, 2002, which was within his probationary period, the record does not indicate that he was arrested for violation of his probation in CR-99-69 within the probationary period. In fact, the petition for revocation in this case was not filed until April 15, 2002, three days after Myles's probation ended. Because appellant was not arrested for a probation violation or an arrest warrant was not issued prior to the expiration of appellant's probationary period for the violation of probation, the trial court had no jurisdiction to revoke appellant's probation subsequent to the expiration of the period. Carter, supra; Harris, supra. Therefore, we reverse and dismiss the revocation of appellant's probation in CR-99-69.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw from CR-2000-58 on the ground that the appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to appellant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal.

No objections were made during the revocation hearing; therefore, the only ruling adverse to appellant was the revocation of his suspended sentence. A trial court may revoke a defendant's suspended sentence if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension. Ark. Code Ann. § 5-4-309(d) (Supp. 2001). In revocation proceedings, the State has the burden of proving that appellant violated the terms of his suspension by a preponderance of the evidence, and this court will not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence. Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988). The State need only show that the appellant committed one violation in order to sustain a revocation. See Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). In testing the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Reese v. State, supra.

In this case, the victim, Daniel George, testified that he had given Myles a ride. George said that when Myles started to get out of the car, he hit George and grabbed some of George's CDs and some money. Officer Reggie Moore of the Osceola Police Department testified that he witnessed Myles hitting George and recognized Myles when he got out of the car. Moore said that he told Myles to come here, but Myles took off running. George told Moore that Myles had just robbed him. Moore testified that he began chasing Myles down on foot when he and his partner could no longer follow him in their police car, that during the chase he identified himself several times to Myles and told him to stop, that Myles looked back at him and continued to run, that Myles hid in an old broken-down car, and that other officers were able to apprehend Myles after Moore informed them of his location.

Myles took the stand and denied hitting George or taking any money or possessions from his car. He said that he ran from the police "because he was on parole" and that George had just told him that he had a gun in the car. He claimed that Officer Moore did not identify himself and that he did not know Officer Moore; however, he admitted that Officer Moore had arrested him before.

Arkansas Code Annotated section 5-54-125(a) (Repl. 1997) provides, "If a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance." The above evidence, viewed in the light most favorable to the State, supports the circuit court's revocation of Myles's suspended sentence for fleeing from Officer Moore. Because only one violation is sufficient to revoke, we need not discuss the offense of robbery.

When Myles's attorney's original brief was filed, the clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file pro se points. Myles filed pro se points of appeal; however, due to this court's order of remand for rebriefing, we did not address those points of appeal at that time. Although Myles did not file new points of appeal in response to his attorney's submission of a new brief, we believe that it is prudent to address the points of appeal he filed in connection with the filing of his attorney's original brief. Myles seems to raise three issues in his pro se points on appeal: (1) there was not sufficient evidence to support the revocation of his probation and suspended sentence; (2) his trial counsel was ineffective for not making any objections during the hearing; (3) the trial court erred in sentencing him after his probation and suspended sentence were revoked.

Myles first argues that there was not sufficient evidence to support the revocation of his probation and suspended sentences. These points were discussed above; the revocation of his probation is reversed and dismissed due to the circuit court's lack of jurisdiction to revoke, and there is sufficient evidence to support the revocation of his suspended sentence.

Myles also complains about the lack of objections from his trial counsel at the hearing; however, this argument has not been preserved for appeal. There is no indication that Myles raised this argument to the trial court, and it cannot be addressed for the first time on appeal. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). In order for a defendant to argue ineffective assistance of counsel on direct appeal, he must first have presented the claim to the lower court either during the trial or in a motion for new trial. Id.

Myles's last argument seems to be that he was "double sentenced" because the trial court revoked both his probation and his suspended sentence and ordered him to serve ten years' incarceration on each offense, although the sentences were ordered to be run simultaneously. Arkansas Code Annotated section 5-4-403(a) (Repl. 1997)1 provides:

When multiple sentences of imprisonment are imposed on a defendant convicted of more than one (1) offense, including an offense for which a previous suspension or probation has been revoked, the sentences shall run concurrently unless the court orders the sentences to run consecutively.

In this case, Myles's probation was revoked in CR-99-69 and his suspended sentence was revoked in CR-2000-58. These are two separate offenses, and two separate sentences of imprisonment were imposed upon Myles. However, the trial judge ordered that the two sentences were to be served simultaneously, or concurrently. There was no error in this sentencing. Furthermore, in light of the fact that we hold that the revocation in CR-99-69 must be reversed and dismissed, appellant must only serve one ten-year sentence; therefore, this issue is now moot.

For the reasons set forth above, the revocation of Myles's probation in CR-99-69 is hereby reversed and dismissed. From a review of the record and the brief presented to this court, appellant's counsel has complied with the requirements of Rule 4-3(j) of the Arkansas Rules of the Supreme Court and the Court of Appeals with respect to CR-2000-58. Appellant's conviction in CR-2000-58 is affirmed, and counsel's motion to withdraw is granted.

Reversed and dismissed in CR-99-69. Affirmed in CR-2000-58. Motion to withdraw is granted.

Bird, J., agrees.

Pittman, J., concurs.

1 Arkansas Code Annotated section 5-4-403(a) was amended during the 2001 General Assembly.