Franklin J. Daley v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

FRANKLIN J. DALEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-705

JUNE 30, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2000-1354]

HON. BARRY A. SIMS,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

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 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 his counsel's brief and notified of his right to file a list of points on appeal within thirty days. Appellant chose not to respond. This appeal involves the revocation of appellant's probation in two cases, CR 99-4605 and CR 00-1354, following a hearing held on March 10, 2003. For clarity, we will discuss the history of the cases separately.

CACR 99-4605

On May 3, 2000, the State filed an information charging appellant with three counts of violating the hot check law. The first felony count was allegedly committed from July 23,

1999 through August 5, 1999. The second felony count was allegedly committed from September 13, 1999 through September 20, 1999. The third count was a misdemeanor that was allegedly committed on April 10, 1999. On January 16, 2001, appellant pleaded guilty, and the court sentenced him to five years' probation and ordered him to pay $500 in fines and court costs and $2,894.17 in restitution. The court noted that the misdemeanor count merged with the two felony counts. On July 11, 2001, the State filed a petition to revoke, alleging that appellant had failed to pay restitution and fees and had tested positive for cocaine on May 17, 2001. On September 4, 2001, appellant pleaded guilty to the allegations in the State's petition. On September 17, 2001, the court entered a judgment and commitment order sentencing appellant to five years' probation and ordering him to pay $600 in fines and court costs. On January 23, 2003, the State filed another petition to revoke appellant's probation, alleging that he had failed to report, failed to pay his fines, and tested positive for cocaine on September 9, 2002, and October 24, 2002. At a hearing on March 10, 2003, appellant was found guilty and, in a judgment and commitment order filed March 19, 2003, he was sentenced to ten years' imprisonment. On March 25, 2003, appellant filed a notice of appeal.

CACR 00-1354

On April 19, 2000, the State filed an information charging appellant with one felony count of failure to appear which he allegedly committed on April 12, 2000. On January 16, 2001, appellant pleaded guilty, and, in a judgment and commitment order filed on February 1, 2001, he was sentenced to five years' probation and ordered to pay $500 in fines and court costs. On July 11, 2001, the State filed a petition to revoke, alleging that appellant had failed to pay restitution in CR 99-4605, had failed to pay fees, and had tested positive for cocaine on May 17, 2001. On September 4, 2001, appellant pleaded guilty and, in an order filedSeptember 17, 2001, he was sentenced to five years' probation and ordered to pay $600 in fines and court costs. On January 23, 2003, the State filed another petition to revoke, alleging that appellant had failed to report, failed to pay fees, and tested positive for cocaine on September 9, 2002, and October 24, 2002. Following a hearing on March 10, 2003, appellant was found guilty. On March 19, 2003, a judgment and commitment order was filed sentencing appellant to ten years' imprisonment. He filed a notice of appeal on March 26, 2003.

Jurisdiction

As an initial matter, defense counsel points out that the trial court had jurisdiction to grant the State's second revocation petitions in both cases. Prior to Act 1569 of 1999, it was held that a trial court lost jurisdiction to modify or amend an original sentence once that sentence was put into execution. See McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); see also Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). Act 1569 effectively overruled prior case law and authorized trial courts to modify original orders and even add penalties to those orders up to the statutory limits. See Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002). Act 1569 became effective April 15, 1999, and our Supreme Court held that it was to only be applied prospectively. See id. Here, because the felony counts were committed subsequent to the effective date of Act 1569, the trial court retained jurisdiction to grant a second petition to revoke. Counsel argues that, although the misdemeanor count in CR 99-4605 was committed on April 10, 1999, appellant would have the benefit of the rulings in Harmon and McGhee except for the fact that the trial court did not impose a period of probation as to the misdemeanor count because that count merged into the felony counts. Pursuant to Ark. Code Ann. § 5-4-403(c)(1) (Supp. 2001), a sentence of imprisonment for a misdemeanor and a sentence of imprisonment for a felony shall run concurrently, and both sentences shall be satisfied by service of sentence for a felony. Accordingly, we agree that the trial court had jurisdiction to grant the State's second petitions to revoke.

Sufficiency of the Evidence

To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. See Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). On appellate review, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Id. Since determination of the preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the trial judge's superior position. Id. Larry Epperson, appellant's probation officer, testified at the hearing that appellant tested positive for cocaine on two occasions, failed to report, and failed to pay his fees, fines, and restitution. Appellant denied having tested positive for drugs, listed various reasons for his failure to report, and explained that his back trouble lead to his inability to pay his fees, fines, and restitution. The trial judge apparently believed at least some aspect of Mr. Epperson's testimony and, thus, we cannot say that the decision to revoke appellant's probation was clearly against the preponderance of the evidence.

Adverse Rulings

Defense counsel made several evidentiary objections during the course of the hearing. Counsel objected to Mr. Epperson's testimony that appellant had tested positive for cocaine, arguing that Mr. Epperson had no personal knowledge of the test. The trial judge did not rule on the objection before the witness continued his testimony. Counsel again objected on the same basis, and the State argued that Mr. Epperson's testimony involved an exception to the rule against hearsay in that the drug test was a business record. The trial court allowed Mr. Epperson to testify about the results of the drug tests.

Appellant failed to get a ruling on the first objection. The burden of obtaining a ruling is upon the movant, and unresolved questions and objections are waived and may not be relied upon on appeal. Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001). Appellant did obtain a ruling on his second objection; however, the rules of evidence, including the hearsay rule, are not applicable in revocation proceedings. See Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000).

Next, defense counsel asked Mr. Epperson to tell the court the dates on which appellant had reported since he had been on probation. The State objected on the basis of relevance, but the court did not specifically rule on the objection. Instead, counsel rephrased the question to ask how many times appellant had failed to report, to which Mr. Epperson answered that he did not know without having gone through the entire case file. Appellant waived his objection by failing to obtain a ruling on it. See Vanesch, supra. In any event, appellant rephrased the question and got an answer and, thus, he cannot show that any prejudice resulted. See Harris, supra.

Finally, the prosecutor asked appellant whether Mr. Epperson had lied in his testimony, and defense counsel objected on the basis that the question was argumentative. The court did not rule on the objection. Appellant's failure to obtain a ruling on his objection precludes our review of it on appeal. See Vanesch, supra.

Based upon our review of the record and the brief presented, we conclude that there has been sufficient compliance with Rule 4-3(j) such that an appeal would be wholly without merit. Counsel's motion to be relieved is granted, and the judgment is affirmed.

Affirmed.

Bird and Griffen, JJ., agree.