Timothy Quarteze Simmons v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR03-164

JUNE 30, 2004

TIMOTHY QUARTEZE SIMMONS AN APPEAL FROM THE MISSISSIPPI

APPELLANT COUNTY CIRCUIT COURT

[CR-2001-406(F), CR98-460(F)]

v.

HONORABLE JOHN FOGLEMAN,

STATE OF ARKANSAS JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

In case number CR 01-406, a Mississippi County jury found appellant Timothy Simmons guilty of second-degree murder. He was sentenced to serve twenty years in the Arkansas Department of Correction. Simultaneously, in case number CR 98-460, the trial court found that appellant had violated the terms and conditions of his probated sentence and revoked appellant's probated sentence. The trial court sentenced appellant to serve ten years concurrently with the sentence for second-degree murder, with an additional ten years to run consecutively to the sentence for second-degree murder.

In an unpublished opinion dated November 5, 2003, we affirmed appellant's second-degree-murder conviction and ordered counsel to rebrief the no-merit portion of the brief that addressed the revocation of appellant's probation. Simmons v. State, CACR 03-164 (Ark.App. Nov. 5, 2003).1 Subsequently, appellant's counsel filed a petition for rehearing concerning our order of rebriefing. In a per curiam opinion dated December 5, 2003, we granted counsel's petition concerning the no-merit appeal of appellant's revocation and ordered that appellant be provided a copy of counsel's no-merit brief and notified of his right to file pro se points. Appellant has elected to file pro se points.

The only adverse ruling that pertains to appellant's revocation is the court's decision to revoke appellant's probation. To revoke probation or a suspension, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Richardson v. State, Ark. App. , S.W.3d (March 10, 2004). The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Id. When appealing a revocation, the appellant has the burden of showing that the trial court's findings are clearly against the preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Id.

From the bench the trial court stated that the conditions of appellant's probation included that he live a law-abiding life; not violate any state, federal, or municipal law; not use or possess alcoholic beverages; not associate with those who use alcoholic beverages; not possess firearms; and not associate with any person known or whom he had reason to believe had been convicted of or committed crimes. During appellant's jury trial, several witnesses testified that on the night in question they had consumed alcoholic beverages. Furthermore, several of the people appellant associated with that night testified that they had prior criminal convictions. Appellant's situation is further compounded by the fact that he admitted having a gun and shooting the victim. Therefore, it is easy to conclude that appellant committed more than one violation of the terms of his probation and that the trial court did not err when it revoked appellant's probation.

In his pro se points, appellant alleges that his due process rights were violated and that his counsel erred when he failed to inform him that the revocation hearing would be held simultaneously with his second-degree murder trial. Appellant failed to raise these issues below. It has long been held that the appellate court will not consider arguments raised for the first time on appeal. Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996). Furthermore, appellant consented via counsel to the trial court holding the revocation hearing simultaneously with his second-degree-murder trial.

After reviewing the record, we agree that there is no merit to an appeal of appellant's revocation of probation and thereby affirm the decision of the trial court and grant counsel's motion to withdraw.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.

1 Our decision on November 5, 2003, disposed of the law matter raised in case number CR 01-406 and is the law of the case in that matter. The only matter now before us is whether an appeal of the revocation of appellant's probation in case number CR-98-460 lacks merit.