Brandon Ladarus Woodard v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

BRANDON LADARUS WOODARD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA CR 04-805

June 29, 2005

APPEAL FROM THE CIRCUIT COURT OF CRITTENDEN COUNTY

[NO. CR 02-293]

HONORABLE RALPH WILSON, JR. JUDGE

AFFIRMED

Terry Crabtree, Judge

On May 28, 2002, a judgment and disposition order was entered placing appellant, Brandon L. Woodard, on probation for five years upon his plea of guilt to delivery of a controlled substance. In October 2003, the State filed a petition to revoke appellant's probation alleging that he had violated numerous terms of his probation. The trial court revoked appellant's probation after a hearing, finding that appellant had violated his probation by not paying fines and costs; by unlawfully possessing cocaine; by associating with felons and persons committing a crime; and by failing to report to his probation officer. As a result, appellant was sentenced to twenty-five years in prison.

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

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 a copy of his counsel's brief and notified of his right to file a list of points on appeal within thirty days. Appellant has filed a list of points. The State hasfiled a brief in response to appellant's list of points and maintains that the judgment should be affirmed. We affirm and grant counsel's motion to be relieved.

Appellant suffered no adverse rulings in the proceedings below save the trial court's findings that appellant had failed to abide by the conditions of his 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, 85 Ark. App. 347, 157 S.W.3d 536 (2004). The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). On appeal, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Williams v. State, 351 Ark. 229, 91 S.W.2d 68 (2002). Because 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 to determine those matters. Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004).

At the hearing, Bailey Phillips and Mary Williams, narcotics officers with the West Memphis Police Department, collectively testified that on October 10, 2003, they executed a search warrant at a trailer located at 108 South 21st Street. The warrant was based on previous drug buys made by a confidential informant from appellant at the trailer. Appellant was inside the trailer at the time of the search. Phillips asked appellant to remove his shoes and socks, and a clear plastic bag fell out when appellant took off his right sock. The substance inside the baggie field-tested positive for cocaine and weighed 1.5 grams. Officer Phillips testified that others were inside the trailer as well, a couple of whom were convicted felons. He also said that he smelled marijuana smoke in the living room, and an unstated amount of marijuana was found in that room. Officer Williams did not detect the odor of marijuana. She said that she did not smell marijuana smoke because they had executed the warrant using "flashbangs" that emitted smoke.

Kyle Bruce served for a time as appellant's parole and probation officer. Entries showed that appellant had failed to report five times between May 2002 and October 2003, when appellant was incarcerated on another matter. During the testimony of Patricia House, who collected fines and costs for the Crittenden County Sheriff's Department, the State introduced documentation showing that appellant had paid nothing toward his $500 fine or court costs in the amount of $250.

Although numerous probation violations were shown, we need only decide whether the trial court's finding as to any one violation is sustainable under our standard of review. The record shows that appellant had made no payments toward his fines and costs. Once the State introduces evidence on nonpayment, the defendant bears the burden of going forward with some reasonable excuse for his failure to pay. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). Appellant offered no excuse for his failure to pay the fines and costs, and thus we are unable to say that the trial court's finding on this violation is clearly against the preponderance of the evidence.

In his pro se list of points, appellant first asserts that the testimony of the officers was inconsistent. He also maintains that the State did not produce the search warrant at the hearing, and he states that there was no proof that the narcotics tested positive for cocaine. Because we have affirmed appellant's revocation on the basis of his failure to pay fines and costs, we need not address these issues that pertain to another probation violation, i.e., unlawful possession of cocaine. Any issue raised with regard to that probation violation are moot. See Rudd v. State, supra.

Appellant also maintains that the trial judge had a conflict of interest because he was too familiar with him from juvenile court. The record does not disclose, however, that the trial judge had any dealings with appellant in the past, and appellant did not raise this issue or ask the trial judge to recuse. We do not address issues that are raised for the first time on appeal. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003).

Appellant's final point is that he was given an illegal sentence in the underlying May 2002 judgment. Appellant points out that the sentencing range for his crime of delivery of a controlled substance was not less than ten years nor more than forty years, or life. See Ark. Code Ann. § 5-64-401(1)(i) (Supp. 2003). He contends that he was given an illegal sentence by being placed on probation for five years, because the term of probation was less than the minimum sentence allowed for the offense. Obviously, this sentencing error, if any, inured to appellant's benefit. Therefore, he has not been aggrieved and has no basis upon which to complain in this appeal.

Affirmed; motion to be relieved granted.

Hart and Bird, JJ., agree.