Paschal v. State (Majority)
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2015 Ark. App. 409 ARKANSAS COURT OF APPEALS DIVISION II N". cR-14-921 opinion Delivered JUNE 1.7,2075 APPEAL FROM THE COLUMBIA CEDRICK PASCHAL APPELLANT COUNTY CIRCUIT COURT lNo. cR-0e-263A-sl HONORABLE HAMILTON H. SINGLETON, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; MOTION GRANTED KENNETH S. HIXSON, Judge Appellant Cedrick Paschal pleaded guilry to residential burglary on October 21.,201,0, and he was sentenced to ten years in prison followed by a five-year suspended imposition of sentence. Mr. Paschal was released from prison on May 28,2073. On April 77,201,4, the State filed a petition to revoke Mr. Paschal's suspended imposition of sentence, alleging multiple violations including being a felon in possession of a firearm, possession of drug paraphernalia, and testing positive for marijuana and amphetamines. After a hearing, the trial court entered an order August 1, 201,4, revoking appellant's suspension and sentencing him to fiflteen years in prison. Mr. Pascha] now appeals from his revocation, and we aflirm. Pursuant to Anders u. California, 386 U.S. 738 (1,967), and Rule 4-3(k)(1) of the Rules of the Arkansas Supreme Court, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is wholly without merit. Mr. Paschal's counsel's motion was 2015 Ark. App. 409 / in the record that might arguably support an accompanied by a brief discussing all matters appeal, including any objections and motions made by appellant and denied by the trial court, and a statement of rhe reason why each point raised cannot arguably support an appeal. Mr. Paschal was provided a copy o[his counsel's brief and notified of his right to file pro se points for reversal, and Mr. Paschal has exercised his right to file pro se points. The conditions of Mr. Paschal's suspension required that he not use or controlled substance. At the revocation possess any hearing, the State presented tesrimony and documentation showing that Mr. Paschal had tested positive for marijuana and amphetamines on September 11 , 201,3, and again on November 20,2013. Mr. Paschal's conditions also prohibited him from committing any offense punishable by imprisonment. Officer Michael Caldwell testified that, on March 1,7, 2014, he assisted appellant's parole officer in locaring Mr. Paschal on an absconding warrant. Officer Caldwell went to the house where appellant was living, and appellant's cousin answered the door. OfEcer Caldwell went into Mr. Paschal's bedroom, where Mr. Paschal was getting dressed, and noticed several baggies with the bottoms ripped out of them. Oflicer Caldwell testified thar these items were consistent with drug use. In plain view, Officer Caldwell observed several rounds of ammunition, and when he asked Mr. Paschal if he had any weapons in the room, Mr. Paschal stated that there were three firearms in the closet that belonged to his father. Officer Caldwell looked in the closet and discovered rwo shotguns and a rifle. During this encounter Mr. Paschal gave OfEcer Caldwell permission to search, and he told the officer that there was a merh pipe under the covers where he had been sleeping. OfEcer Caldwell ,I 2015 Ark. App. 409 lound that meth pipe as well as another meth pipe in appellant's bedroom. According to OfEcer Caldwell, Mr. Paschal told him that he had been using methamphetamine. Arkansas Code Annotated section 16-93-308(d) (Supp. 2013) provides that, if a court finds by a preponderance ofthe evidence that the defendant inexcusably failed to comply with a condition of his suspension, the court may revoke the suspension at any time prior to the expiration of the suspension. On appeal, the trial court's decision will not be reversed unless it o[the evidence. Dawson u. State,2015 Ark. App.23. is clearly against the preponderance The only adverse ruling in this case was the trial court's decision to revoke appellant's suspension, and appellant's counsel accurately asserts that there can be no merirorious challenge to the sufficiency ofthe evidence supporting revocation. Although the State proved multiple violations ofthe suspension at the revocation hearing, only one is necessary to sustain the revocation. See Reynolds v. State, 2012 Ark. App. 705. The State demonstrated that, during the period of his suspension, Mr. Paschal tested positive for controlled substances in violation of his conditions. As appellant's counsel states in the no-merit briefl this alone was a sufficient basis to revoke. We agree with counsel that the trial court's decision was not clearly against the preponderance of the evidence and that any argument to the contrary would be wichout merit. In Mr. Paschal's pro se points, he asserts that the firearms belonged to his father and that he had just recently moved into his father's house. He furtherasserts that there was no fingerprint testing on the firearms or the meth pipes, and no testing to confirm any drug 3 --j 2015 Ark. App. 409 ., f residue. Mr. Paschal also claims that the underlying criminal charges for possession of firearms by certain persons and possession of drug paraphernalia were later dismissed. Despite appellant's claim rhat he had just moved into his father's house, OfEcer Caldwell testified that Mr. Paschal told him that he had been living there for several weeks. OfEcer Caldwell believed that Mr. Paschal was living in that room based on his observation that appellant's clothes were there along with other personal items, including Mr. Paschal's driver's license. The ammunition was in plain view, and the closet containing the firearms was jusc a few fleet from the bed where Mr. Paschal slept. Fingerprint testing is not necessary to prove constructive possession, Morgan v. State,2009 Ark. 257, and constructive possession can be inferred when the contraband was found accessible in a place immediately and exclusively to the accused and subject ro his control. Polku. State,348 Ark.446,73 S.W.3d 609 (2002). In this case the State provided proofthat Mr. Paschal constructively possessed the firearms and merh pipes, and Mr. Paschal told the police where one of the pipes could be found and admitted ro using methamphetamine. Moreover, even if the underlying criminal charges were dismissed, as appellant claims, the burdens are different, and evidence that is insulEcient for a criminal conviction may be sufficient to revoke a suspended sentence. Jones u. Stdte, 355 Ark. 630, 144 S.W.3d 254 (2004). And finally, in Mr. Paschal',s pro See se points he does not challenge the trial court's finding chat he had positive drug tests, which was a sufticienc basis ro revoke independent of the proof that he had possessed firearms and drug paraphernalia. ,l aa 2015 Ark. App. 409 In Mr. Paschal's pro se points, he also notes that his counsel's brief mistakenly identified the revocation hearing date as October 27,2070, instead of July 23, 2074. However, this is obviously a mere scrivener's error and provides no basis for revenal of the revocation. Based on our review ofthe record and the briefi presented, we conclude that there been compliance with Rule 4-3(kX1) and that the appeal is without merit. Consequently, appellant's counsel's motion to be relieved is granted and the judgment is affirmed. AfErmed; motion granted. WHrrearrR has and VRUGHI,lJ., agree. N. Mark Klappenbach, for appellant. Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.
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