Susan M. Foster v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

CACR 04-110

January 12, 2005

DIVISION I

SUSAN M. FOSTER

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM UNION COUNTY CIRCUIT COURT

CR-99-482; CR-01-283; CR-02-341

HON. HAMILTON H. SINGLETON,

CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

This is a no-merit appeal from a revocation proceeding. Appellant Susan M. Foster's probation for possession of a controlled substance and violation of the hot check law was revoked, and Foster was sentenced to four years in a Regional Punishment Facility, with ten years in the Department of Correction suspended.

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, Foster's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. The motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal, and a statement as to why counsel considers the record as incapable of supporting a meritorious appeal. Foster 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. Foster has responded by filing pro se points with this court, to which the State has filed a response brief.

The only adverse ruling was the trial court's decision that, by a preponderance of the evidence, Foster failed to comply with her conditions of probation. Foster's counsel asserts that this decision should not be reversed since it was not clearly against the preponderance of the evidence, see Morganv. State, 73 Ark. App. 107, 42 S.W.3d 569 (2001). In light of the evidence of clear probation violations, we agree that the decision to revoke was not clearly against the preponderance of the evidence.

We next turn to the list of pro se points submitted by Foster. Foster alleges that she was given inadequate representation because she cannot read or write, has mental problems and was not given her medication; that she did not understand her plea agreement; that she was incarcerated and unable to report; that she completed her court-ordered rehabilitation and outpatient treatment and gave copies of the certificates to her lawyer; and that the drug task force paid her checks and restitution.

The above points in essence raise an issue of ineffective assistance of counsel and also challenge the sufficiency of the evidence to revoke. The claim of ineffective assistance of counsel was not made in the trial court and cannot be raised for the first time on direct appeal. Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). There was clearly sufficient evidence presented by the State to revoke based on the trial court's findings that Foster failed to report and failed to enter drug rehabilitation. Foster elected not to testify, and the information she now puts forward as points for appeal was not presented at the hearing. Moreover, the State need prove only one violation to support the revocation of probation. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003).

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

Affirmed.

Pittman C.J., and Crabtree, J., agree.