Charles Wilson Ewing, Jr. v. State of Arkansas

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ar04-177

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CHARLES WILSON EWING

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-177

February 22, 2006

APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT

[CR-2000-577]

HON. CHARLES DAVID BURNETT,

CIRCUIT JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

Larry D. Vaught, Judge

Appellant Charles Ewing's counsel originally attempted to withdraw from continued representation of Ewing 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 Ewing's appeal. In an unpublished opinion, Ewing v. State, CACR 04-177 (June 29, 2005), we ordered rebriefing because Ewing's counsel's brief was deficient. Counsel has now tendered a rebriefed appeal and maintains that, pursuant to Anders and Rule 4-3(j), the appeal has no merit. We agree, affirm Ewing's revocation, and grant counsel's motion to withdraw as Ewing's attorney.

On February 13, 2001, Ewing entered a plea of guilty after violating the state's hot-check law. As a result, Ewing was placed on probation for sixty months, subject to certain conditions, including that he not commit an offense punishable by imprisonment and that he refrain from drug use. On June 5, 2003, a petition for revocation was filed alleging that Ewing had admitted using drugs during his probation and had been arrested for several misdemeanors. Ewing was subsequently convicted of obstruction of governmental operations, theft of property, driving while intoxicated, and failure to appear. After a hearing on September 2, 2003, Ewing's probation was revoked, and he was sentenced to eighty-four months' imprisonment.

During the revocation hearing, Courtney Mace, Ewing's probation officer, testified that when she took over his case in January 2003, he had failed to report since June 2002. She stated that Ewing admitted to using crack cocaine on March 20, 2003. She also stated that he owed $8000 in fines and supervision fees, and although some payments had been made, he was still delinquent. She noted that he was living with a convicted felon, a living situation that had not been approved by her. During her testimony, the court admitted-over Ewing's objection-facsimile copies of guilty pleas Ewing had signed with regard to charges for obstructing governmental operations, theft, DWI, and failure to appear.

At the hearing, Ewing denied using drugs in March 2003 but admitted that he used them as late as November 2001 after he had been placed on probation. He denied failing to report for his probation meetings and stated that he had been seeing another officer. He claimed that Mace destroyed the files showing that he appeared at those meetings. He admitted to living with a convicted felon but argued that he had permission. He also admitted that he was convicted of DWI, that he had pled guilty to failure to appear, and that he "may have been" convicted of obstructing governmental operations and theft.

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, Ewing's counsel has filed this second motion to withdraw on the ground that the appeal is without merit. The motion is accompanied by a brief purportedly referring to everything in the record that might arguably support an appeal, a record of all motions and requests made by Ewing and denied by the court, and a statement of the reasons why counsel considers there to be nothing in the record that will support the appeal. In his first no-merit appeal, Ewing's attorney listed only one ruling that was adverse to Ewing-the trial court's finding that Ewing had violated his probation. In this second brief, he lists only one point on appeal-the trial court's denial of an objection Ewing made to the introduction of facsimile copies during the revocation proceedings.

We agree that there are no meritorious issues for appeal. In order to revoke probation, the State must prove by a preponderance of the evidence that the defendant has violated a condition of probation. Jared v. State, 17 Ark. App. 223, 707 S.W.2d 325 (1986). Upon appellate review, we do not disturb the findings of the trial court unless they are clearly against the preponderance of the evidence. Id. The State need only show that an appellant has violated one of the conditions of his probation in order to seek revocation. Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987).

In this case, there was clearly a preponderance of evidence indicating that Ewing had violated the terms of his probation. The court found that he had violated his probation by committing four misdemeanor offenses, failing to meet his probation officer as scheduled, using controlled substances, failing to pay fines and fees, and living with a felon without approval by his probation officer. Additionally, Ewing's counsel also accurately points out that the rules of evidence do not apply to revocation proceedings, and we agree that the court correctly overruled Ewing's objection regarding the facsimile copies of his guilty pleas. See Ark. R. Evid. 1101(b). However, even if we found that the trial court improperly considered the facsimile copies, we would still note that Ewing himself admitted that he pled guilty to DWI and failing to appear.

When Ewing's attorney filed his original brief, the clerk of this court furnished Ewing with a copy of the brief and notified him of his right to file pro se points. Ewing 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 Ewing 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. Ewing asserted two points for reversal: (1) that his trial counsel was ineffective because he did not file any motions or subpoenas or present a proper defense and (2) that one of the State's witnesses was not worthy of belief. The State responded by filing a brief arguing that neither of Ewing's points were meritorious. We agree.

Ewing argues for his first point that his attorney was ineffective in preparing a defense because his attorney did not file any motions or subpoenas and did not put on a proper defense. However, his argument was not preserved for appeal. Ineffective-assistance claims that are not made below will not be considered for the first time on appeal. Alexander v. State, 55 Ark. App. 148, 934 S.W.2d 927 (1996). Ewing's second argument involves the testimony of his probation officer, and it appears that he is arguing that she was not a trustworthy witness and that the court should not have believed her testimony. However, issues of credibility and the weight to be given witness testimony is a determination for the trial court in revocation proceedings, not for us. Kirby v. State, 52 Ark. App. 161, 915 S.W.2d 736 (1996).

Affirmed.

Motion to withdraw is granted.

Griffen and Baker, JJ., agree.