Kimberly Ann Brown v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

KIMBERLY ANN BROWN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-871

JUNE 25, 2003

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR 2001-309]

HONORABLE FLOYD G. ROGERS,

JUDGE

AFFIRMED; MOTION TO BE RELIEVED GRANTED

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, appellant's counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, including the adverse rulings, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Appellant was provided with a copy of her counsel's brief and notified of her right to file a list of points on appeal within thirty days. Appellant filed no points. We affirm.

On February 4, 2002, the appellant, Kimberly Brown, entered a negotiated plea of no contest to possession of methamphetamine. The Crawford County Circuit Court

sentencedappellant to a suspended sentence of five years conditioned upon certain terms with twelve months' supervised probation. The conditions of probation included restrictions against use or possession of a controlled substance, submission to random drug testing, and thirty days of community service.

On March 26, 2002, the State filed a petition to revoke appellant's probation. On April 19, 2002, the State filed an amended petition to revoke. The State alleged that appellant violated the terms of her suspended sentence, specifically that she tested positive for methamphetamine twice and that she failed to complete thirty days of community service. On May 14, 2002, after a hearing, the trial court revoked appellant's suspended sentence and sentenced her to two years' imprisonment in a regional punishment facility.

In the argument portion of his brief, appellant's counsel states that a sufficiency-of-the evidence argument was not preserved for appeal because no directed-verdict motion was made below. However, appellant's counsel then goes on to discuss the sufficiency of the evidence supporting the revocation. Following our supreme court's decision in Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), the requirements of Rule 33.1 of the Arkansas Rules of Criminal Procedure regarding motions for dismissal and directed verdicts do not apply to revocation hearings. Consequently, the fact that appellant did not move for a directed verdict with respect to her probation revocation would not preclude her from raising a sufficiency issue on appeal. Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals provides in pertinent part: "The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on allobjections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal." In this instance, we believe that appellant's counsel, in effect, addressed the sufficiency of the evidence supporting appellant's probation revocation.

To revoke a suspended sentence or 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 appeal, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.2d 869, 45 S.W.3d 869 (2001). Since the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge's superior position. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002).

At the probation hearing, Dave Landers, the State Parole Probation Officer, testified about a probation form prepared by Doug Hartman regarding appellant. Landers testified that Doug Hartman was appellant's probation officer. Landers stated that the form reflected that appellant tested positive for methamphetamine on March 13, 2002, and again on March 19, 2002. Landers stated that the form showed that appellant had stated to Hartman that she had a bad drug problem.

In this instance, the State presented testimony from Landers and a positive drug report from Doug Hartman as evidence that appellant tested positive for methamphetamine on two occasions during her probation period. The trial court found this evidence credible andrevoked appellant's probation. The State need only have proved that appellant violated any one condition of her probation in order to support revocation. See Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Therefore, we need not discuss whether the evidence is sufficient to support the trial court's finding that appellant also violated her probation by failing to complete thirty days of community service.

On July 16, 2002, appellant filed a pro se petition for reduction of sentence pursuant to Ark. Code Ann. § 16-90-111. In her petition she alleged that she needed to care for her fifteen- year-old daughter and her mother who suffered from Parkinson's disease. Appellant acknowledged that she made mistakes in the past but realized that she needed to be able to care for her daughter and mother. The trial court denied appellant's petition.

Arkansas Code Annotated Section 16-90-111(a) allows a trial court to correct an illegal sentence at any time and to correct a sentence imposed in an illegal manner within a certain time for the reduction of sentence. Appellant did not allege any reasons why she believed that her sentence was illegal on its face or that it was imposed in an illegal manner to justify a reduction of her sentence. Similarly, we find none. Therefore, we hold that the trial court properly denied her petition.

Affirmed; motion to be relieved granted.

Stroud, C.J., and Neal, J., agree.