Slusher v. State (Majority)
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2015 Ark. App. 398 ARKANSAS COURT OF APPEALS DIVISION I No. CR-14-834 COLTON GENE SLUSHER opinion DeliveredJIJNE 1 7, 201 5 APPELLANT APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT [NOS. CR-12-104, CR-1 2-111] STATE OF ARKANSAS APPELLEE HONORABLE WILLIAM M. PEARSON, JUDGE AFFIRMED; MOTION GRANTED DAVID M. GLOVER, Judge Appellant Colton Gene Slusher entered negotiated pleas of guilry in August 2012 to possession of drug paraphernalia, a Class D felony (CR-2012-104), and possession of a controlled substance with intent to deliver (marijuana), a Class C felony (CR-2012-111). He was sentenced to three years' incarceration for each offense, to be served concurrently, ro be followed by an additional three-year suspended in-rposition ofsentence for possession of drug paraphernalia and a four-year suspended imposition of sentence for possession of a controlled substance with intent to deliver. Conditions ofhis suspended sentences included that Slusher live a law-abiding liG. On March 10,2014, the State filed a petition ro revoke Slusher's suspended sentences, alleging that he had failed to pay fines and fees and had committed a criminal offense 2015 Ark. App. 398 punishable by imprisonment.t After a hearing, the trial courr revoked Slusher's suspended sentences and sentenced him to six years in the Arkansas Department of Correction on each offense, to be served conculrently, as well as an additional three-year suspended inrposition of sentence for the offense of possession of a controlled substance with intent to deliver. Pursuant ro Anders u. Callfornia,386 U.S. 738 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court ofAppeals, Slusher's counsel has filed a motion ro withdraw on the grounds that the appeal is wholly without nrerit. This motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to Slusher made by the trial court on objections, motions, and requests made by either part|, with an explanation as all to why each adverse ruling is not a meritorious ground for reversal. The clerk of this court furnished Slusher with a copy of his counsel's brief and notified hirn of his right to file pro se points; he has not filed any points. In order to revoke probation or a suspension, the circuit court nrust find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Holmes u. State,201,2 Ark. App. 451. In a hearing to revoke, the burden is on the State to prove a violation of a condition of the suspended sentence by preponderance ofthe evidence. Stultz v. State,92 Ark. App.204,21,25.W.3d42 (2005). a O, appellate review, the trial court's findings are upheld unless they are clearly against the 'The State also alleged that Slusher had violated the terms of his suspended sentences in CR-2009-202{,but the trial court determined that it did not havejurisdiction in that case. The State does not cross-appeal that finding. cR-14-834 2015 Ark. App. 398 preponderance of the evidence. Id. Because of the lower burden of proof, evidence that is insu{Ecient to support a criminal conviction may be sufficient for the revocation of a suspended sentence. Knotts u. State,2012 Ark. App. 121. The appellate courts deGr to the trial court's superior position to determine credibility and the weight to be accorded testimony. Stultz, supra. At the revocation hearing, Becky Nichols, Slusher's probation/parole officer, testified that Slusher was paroled from prison on December 12,2013, and two days later he comnritted the olfense of battery and was also charged later that month with aggravated assault. Slusher admitted on cross-examination that he had been convicted of rwo misdenreanors in district court in December 2013. This testimony provides sufficient evidence to support the revocation of Slusher's suspended sentences. Other than the revocation ofhis suspended sentences, there was only one other ruling adverse to Slusher. The trial court overmled a hearsay objection from Slusher's counsel during the testimony ofAllie Wilkerson, a sergeant at theJohnson Counry Detention Center, when she testified about where cannot form a a fire had begun in the detention center. This adverse ruling meritorious basis for reversal ofthe revocation ofSlusher's suspended sentences. The rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings. Richards u. State,2013 Ark. App. 15. From a review of the record and the brief presented to this court, Slusher's counsel has complied with the requirements of Rule a-3(k) of the Arkansas Rules ofthe Supreme Court and the Court ofAppeals. The revocation of Slusher's suspended sentences is affirmed, and cR-14-834 2015 Ark. App. 398 collllsel's motion to be relieved is granted. Affi rn-recl ; motion sranted. HauRIsc>N and KINnRD,JJ., agree. John C. Burnett, for appellant. No response. cR- 14-834
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