Gerald Jermaine Allen v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL GRIFFEN, JUDGE
DIVISION III
CACR07702
January 30, 2008
GERALD JERMAINE ALLEN
APPELLANT
AN APPEAL FROM CRITTENDEN
COUNTY CIRCUIT COURT
[CR971085A]
V.
HON. RALPH WILSON, JR., JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED; MOTION TO BE RELIEVED
AS COUNSEL IS GRANTED
This is a nomerit appeal from the revocation of appellant Gerald Allen’s probationary
sentence. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R.
43(j)(1), appellant’s counsel submitted a nomerit brief and a motion to be relieved as
counsel, asserting that there is no nonfrivolous argument to be made in support of an appeal.
Appellant filed pro se points for reversal; accordingly, the State filed a responsive brief,
asserting that appellant’s arguments are either not preserved for review or that an appeal
therefrom would be wholly without merit. We affirm the revocation of appellant’s probation
and grant counsel’s motion to be relieved.
I. Facts
Appellant was placed on probation on July 17, 1998, after pleading guilty to burglary
and theft of property. He was sentenced to ten years’ supervised probation and to an
additional five years’ unsupervised probation. As a condition of receiving probation,
appellant was ordered to pay a total of $3719 in costs, fees, and restitution.
On August 10, 1999, the State filed a petition to revoke appellant’s probation,
asserting that he failed to report to his probation officer as directed and failed to pay
probation fees, fines and costs. Because appellant was incarcerated on other charges from
October 2000 until May 2006, no revocation hearing was held until March 27, 2007.
The State presented two witnesses: Deborah Wiseman, collector of fines for the
Crittenden County Sheriff’s office, and Kyle Bruce, appellant’s probation/parole officer.
Wiseman testified, without objection, that appellant originally owed $3719 and owed $4206
as of August 1, 2006. The ledger sheet, which was admitted into evidence without objection,
shows that appellant never paid any money as ordered. Wiseman further testified that
appellant never contacted her office to explain why he never made a payment.
Bruce testified that appellant was currently under Bruce’s supervision due to his
probationary sentence and because he had been paroled on May 10, 2006, in an unrelated
case. Bruce testified that appellant failed to pay any of his supervision fees relating to his
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probation. He also testified that appellant had failed to comply with several of his parole
conditions, including failing to report on two occasions and exceeding the parameters of his
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Bruce incorrectly testified that appellant’s supervision fees were the same as his
parole fees, which were $25 per month. The record shows that appellant’s supervisory fees
were $15 per month.
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electronic monitoring device. However, Bruce admitted that appellant would not be able to
report or pay fines during his period of incarceration, from October 2000 until May 2006.
Appellant offered no testimony to explain his nonpayment. The trial court revoked
appellant’s probationary sentenced based solely on his failure to pay, finding that he
inexcusably failed to pay as ordered. The court excluded the time that appellant was
incarcerated but noted that he made no payment from July 17, 1998, through October 2000,
when he was incarcerated, and thereafter made no payment after May 10, 2006, when he was
released. The trial court sentenced appellant to serve five years on the residential burglary
charge, the minimum sentence for that offense (but ordered no time based on the theftof
property charge).
II. Adverse Rulings
A defense attorney may file a nomerit brief and request to withdraw as counsel if,
after a conscientious examination of the record, he believes that an appeal would be wholly
frivolous. See Anders, supra. In so doing, counsel must file a brief discussing all adverse
rulings that might arguably support the appeal and explaining why each adverse ruling does
not provide a meritorious ground for reversal. See Eads v. State, 74 Ark. App. 363, 47
S.W.3d 918 (2001). This court is bound to perform a full examination of the proceedings
as a whole to decide if an appeal would be wholly frivolous. See Campbell v. State, 74 Ark.
App. 277, 47 S.W.3d 915 (2001).
As appellant raised no objections during the revocation proceeding, the only adverse
ruling was the decision to revoke his probation, which is an adverse ruling that must be
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addressed by counsel seeking to withdraw from representation. See generally Brown v.
State, 85 Ark. App. 382, 155 S.W.3d 22 (2004). To revoke a probationary sentence, the
circuit court must find by a preponderance of the evidence that the defendant inexcusably
violated a condition of that probation. Ark. Code Ann. § 54309(d) (Repl. 2006);
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 violated a single condition. Id. When
appealing from a revocation determination, a defendant 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 to revoke a probationary sentence.
Id.
As counsel argues, an appeal from the revocation of appellant’s probation would be
wholly frivolous because the State proved by a preponderance of the evidence that appellant
inexcusably failed to pay his fines and costs as ordered. Here, Wiseman’s testimony and the
payment ledger, which were admitted without objection, demonstrated appellant’s failure to
pay. The burden then shifted to appellant to present a reasonable excuse for his failure to
pay. See Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d 735 (1990). As appellant
presented no evidence to excuse his failure to pay, the trial court was permitted to find that
his failure to pay was inexcusable. See Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420
(1998).
Further, no meritorious appeal would lie based on the sentence imposed. The
sentence imposed was proper because it was within the range of the sentence that could have
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originally been imposed. See Ark. Code Ann. § 54309(f)(1)(A) (Repl. 2006). Appellant
could have originally been sentenced to serve fivetotwenty years on the burglary charge.
See Ark. Code Ann. § 539201(a)(2) (Repl. 2006); Ark. Code Ann. § 54401(a)(3) (Repl.
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2006). Here, the trial court imposed the minimum fiveyear sentence based on the burglary
charge, which was clearly within the statutory range.
III. Pro Se Points
Appellant’s pro se arguments may be summarized as follows. First, his appellate
counsel failed to adequately abstract the record. Second, the State failed to hold his
probation hearing in a timely manner, which deprived the trial court of jurisdiction to revoke
his appeal. Third, his Fifth, Sixth, and Fourteenth Amendment rights were violated. Fourth,
the delay in bringing him to trial prejudiced his ability to properly defend the charges against
him. No meritorious appeal would lie based on these arguments, as they are either not
preserved for appellate review or are wholly without merit.
A. Inadequate Abstracting
Appellant first asserts that his abstract is inadequate because it “only placed advantage
for Prosecution” in that in failed to include voir dire, opening and closing arguments,
pre–hearing motions, and “all” proceedings regarding this case. This argument is wholly
without merit.
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Both the judgment and commitment order placing appellant on probation and the
revocation order incorrectly cite the burglary statute as Ark. Code Ann. § 539202 (Supp.
2007), which is the citation for the breaking or entering statute. However, it is clear that the
court meant to cite to the burglary statute because it identifies the offense as a Class B felony
and breaking or entering is solely a Class D felony. See Ark. Code Ann. § 539202(c).
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First, because the revocation proceeding was not preceded by any prehearing motion
and does not involve a jury, there were no prehearing motions or voir dire proceedings to
abstract. Second, counsel adequately abstracted the revocation proceedings, as the abstract
includes the witnesses’ testimony, appellant’s motions for a directed verdict, his arguments
concerning his justification defense, his assertion that he was entitled to a lesser charge, and
the trial court’s ruling.
While the abstract does not include the attorneys’ closing arguments, we examine the
record as a whole. See Campbell, supra. Appellant does not allege and the record does not
reveal any error predicated on closing arguments. On these facts, nothing in the manner in
which the record was abstracted would present a meritorious issue for appeal.
B. Jurisdiction to Revoke
Appellant raises several arguments related to the trial court’s jurisdiction to revoke
his probation, which, in turn, are based on the timeliness of the revocation hearing.
Appellant was placed on probation on July 17, 1998. His supervised probation will expire
no later than July 17, 2008; his unsupervised probation will thereafter expire no later than
July 17, 2013. Appellant was incarcerated in an unrelated case from October 2000 until May
10, 2006. The arrest warrant issued due to appellant’s probation violation was issued on
February 24, 2003, while appellant was incarcerated, but the warrant was not filed until
March 20, 2007. The revocation hearing was held seven days later, on March 27, 2007.
Appellant raises three related jurisdictional arguments: 1) the arrest warrant was stale
because he was not arrested within one year of its issuance; 2) his “prosecution” was not
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timely because he was not prosecuted within one year of the issuance of the arrest warrant;
and 3) the trial court lacked jurisdiction to try him because the arrest warrant was not issued
within the correct statutory period after the commission of the offense. Although appellant
did not raise a jurisdictional argument below, whether a trial court has jurisdiction to revoke
probation is an argument that we may address for the first time on appeal. See Gates v.
State, 353 Ark. 333, 107 S.W.3d 868 (2003).
On the merits, the trial court did not lack jurisdiction to revoke appellant’s probation.
First, the trial court was not required to conduct appellant’s revocation hearing within one
year of the date his arrest warrant was issued. Appellant cites to several cases in which
criminal prosecutions for certain offenses were not timely brought within their respective
statutes of limitations, but none of these cases require a trial court to hold a revocation
hearing within one year of the issuance of the arrest warrant based on a probation violation.
While a probation hearing must be held no later than sixty days of a probationer’s arrest, see
Ark. Code Ann. § 54310(b)(2) (Repl. 2006), nothing in the statutes governing probation
proceedings requires a probation hearing to be brought within any certain time period
following the issuance of an arrest warrant. In fact, a trial court may even revoke probation
after the probationary period has expired, as long as a warrant was issued for the
probationer’s arrest before the probationary period expired. See Ark. Code Ann. §
54309(e) (Repl. 2006).
Relatedly, the arrest warrant here was not stale because it was issued before
appellant’s probationary period expired. See Ark. Code Ann. § 54309(e) (Repl. 2006);
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Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996) (holding a bench warrant for the
defendant's arrest was not stale, where it was issued within the defendant's fiveyear probated
sentence but not served until 17 months after expiration of the defendant’s probated
sentence). Here, the arrest warrant was issued and the revocation hearing was held before
appellant’s probationary period expired.
Appellant cites to Ark. Code Ann. § 51109(f) (Repl. 2006), which states that a
prosecution is commenced when an arrest warrant or other process is issued based on an
indictment, information, or other charging instrument if the arrest warrant or other process
is sought to be executed without unreasonable delay. Appellant seems to argue that because
he was incarcerated from October 2000 through May 10, 2006, the State knew where he was,
and thus, its delay in holding his revocation hearing unreasonably exceeded the time period
allowed to prosecute him.
This argument might bear more weight if appellant’s probationary sentence was tolled
or extended by his imprisonment on another charge. However, that is not the case, as a
period of probation runs concurrently with any term of imprisonment to which a defendant
is or becomes subject to during the period of the suspension of probation. See Ark. Code
Ann. § 54307(b)(2) (Repl. 2006). Again, as the arrest warrant was issued and the
revocation hearing was held within appellant’s probationary period, his argument that the
trial court lacked jurisdiction to revoke his probation is wholly without merit.
C. Arguments Not Preserved
For the first time, appellant raises constitutional arguments and further asserts that the
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State’s delay in prosecuting him prejudiced his ability to properly defend the charges against
him. However, we do not address these arguments because appellant failed to present them
to the trial court. See London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003)(declining to
address constitutional argument raised for the first time on appeal); Hodges v. Gray, 321
Ark. 7, 901 S.W.2d 1 (1995) (declining to address the argument that the party was denied
the right to defend against a contempt charge where that argument was not made to the trial
court). We note that, were we to reach the merits of appellant’s constitutional arguments,
none would provide a meritorious basis for an appeal.
Affirmed; motion to be relieved as counsel granted.
ROBBINS and MARSHALL, JJ., agree.
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