Peals v. State

Cite as 2015 Ark. App. 1

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-382

OPINION DELIVERED JANUARY 14, 2015

RICKY L. PEALS APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-08-667]

V. HONORABLE RALPH WILSON, JR.
JUDGE

STATE OF ARKANSAS AFFIRMED; MOTION TO
APPELLEE WITHDRAW GRANTED

ROBERT J. GLADWIN, Chief Judge

This is a no-merit appeal from the revocation of appellant Ricky Peals’s probation by

the Crittenden County Circuit Court, for which he was sentenced to three years in the

Arkansas Department of Correction, followed by four years’ suspended imposition of

sentence.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) (2014) of the

Rules of the 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 is

accompanied by an abstract and addendum of the proceedings below, alleged to include all

objections and motions decided adversely to appellant, and a brief in which counsel explains

why there is nothing in the record that would support an appeal. The clerk of this court

provided appellant with a copy of his counsel’s brief and notified him of his right to file a pro
Cite as 2015 Ark. App. 1

se statement of points for reversal within thirty days. Appellant did not file pro se points, and

as a consequence, the State Attorney General has not filed a brief in response.

As this is a no-merit appeal, counsel is required to list each ruling adverse to the

defendant and to explain why each adverse ruling does not present a meritorious ground for

reversal. See Anders, supra; Ark. Sup. Ct. R. 4-3(k)(1); Eads v. State, 74 Ark. App. 363, 47

S.W.3d 918 (2001). The test is not whether counsel thinks the circuit court committed no

reversible error, but whether the points to be raised on appeal would be wholly frivolous.

See Anders, supra; Eads, supra. Pursuant to Anders, we are required to make a determination

of whether the case is wholly frivolous after a full examination of all the proceedings. See

Anders, supra; Eads, supra.

In compliance with the directive in Anders, supra, and Rule 4-3(k), counsel claims that

he has thoroughly examined the record of this proceeding but found no error that would

support an appeal. The circuit court in this matter made only one evidentiary ruling adverse

to appellant—in addition to the revocation itself—and that was an attempted

“confrontation” objection at the revocation hearing that was overruled. During direct

examination, witness Albert Caldwell testified that he was on his way to work and received

a call from his aunt that the police were at his apartment. The following colloquy occurred:

MR . WILLIAMS: I object to confrontation, Your Honor.

THE COURT: He can say what the name is, overruled.

MR . CALDWELL: My aunt’s name is Kimberly Garrett.

In his brief, counsel references Arkansas Rule of Evidence 602 (2014):

2
Cite as 2015 Ark. App. 1

Rule 602. Lack of personal knowledge. A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that he has personal knowledge
of the matter. Evidence to prove personal knowledge may, but need not, consist of
the testimony of the witness himself. This rule is subject to the provisions of Rule
703, relating to opinion testimony by expert witnesses.

Counsel urges that the circuit court was correct in its ruling because the witness had personal

knowledge of the name of his aunt.

Additionally, although the rules of evidence are not strictly applicable in revocation

proceedings, the right to confront witnesses is applicable. Stillwell v. State, 2010 Ark. App.

546. In Stillwell, this court cited Goforth v. State, 27 Ark. App. 150, 767 S.W.2d 537 (1989),

in which we held that a probationer’s right to confront witnesses must be weighed against

the State’s reasons asserted for not requiring confrontation. While the circuit court did not

specifically perform the balancing test required in Goforth, such error is harmless in this case

because appellant’s probation was properly revoked on another basis. The State need only

show that the appellant committed one violation in order to sustain a revocation. See

Stillwell, supra.

Counsel’s discussion does not squarely reconcile the “confrontation” objection with

the ruling by the circuit court. But under either analysis, it was proper for the circuit court

to overrule the objection, and there is no basis for a meritorious appeal on this issue.

The second “ruling” that was adverse to appellant is the revocation itself. We hold

that there is sufficient evidence to support the revocation. Appellant’s conditions of

probation required, in part, that he (1) pay all fines and costs as ordered, and (2) live a

law-abiding life and not violate state law. Probation may be revoked upon a finding by a

3
Cite as 2015 Ark. App. 1

preponderance of the evidence that the defendant has inexcusably failed to comply with a

condition of the probation. Vail v. State, 2014 Ark. App. 407, 438 S.W.3d 286. On appeal,

a revocation will not be overturned unless the decision is clearly against the preponderance

of the evidence. Id. We must give due regard to the circuit court’s superior position in

determining the credibility of witnesses and weight to be given their testimony. Id. In order

to support revocation of probation, the State has the burden of proof but need to prove only

one violation of conditions of probation. Robinson v. State, 2014 Ark. App. 579, 446 S.W.3d

190.

Where the alleged violation involves the failure to pay ordered amounts, after the

State has introduced evidence of nonpayment, the burden shifts to the probationer to provide

a reasonable excuse for the failure to pay. Scroggins v. State, 2012 Ark. App. 87, 389 S.W.3d

40. It is the probationer’s obligation to justify his failure to pay, and this shifting of the

burden of production provides an opportunity to explain the reasons for nonpayment. Id.

If the probationer asserts an inability to pay and provides evidence demonstrating that

inability, then the State must demonstrate that the probationer did not make a good-faith

effort to pay. Id. Despite the shifting of the burden of production, the State shoulders the

ultimate burden of proving that the probationer’s failure to pay was inexcusable. Id. If the

probationer offers no reasonable explanation for his failure to pay, then it is difficult to find

clear error in a circuit court’s finding of inexcusable failure. Id.

The circuit court found by a preponderance of the evidence that appellant had

inexcusably failed to comply with condition number one by not paying his fines and costs

4
Cite as 2015 Ark. App. 1

as ordered. The circuit court also found that, based on the testimony of Mr. Caldwell,

appellant violated condition number two by committing residential burglary and theft.

Regarding condition one, Amy Peyton, collector of fines at the sheriff’s office,

testified that she received documentation reflecting that appellant, in case CR-08-667, was

assessed a fine of $250 and costs of $770, all of which he was to pay at twenty dollars per

month. Between January 12, 2009, and June 7, 2013, his last payment, he paid $405 and had

a balance owing of $1020. She identified a computer printout and ledger sheet reflecting the

amounts testified to. Appellant did not testify regarding this condition.

With respect to condition two, Mr. Caldwell testified that on September 23, 2011,

he was on his way to work when he got a call that the police were at his apartment. When

he got there he found that his door was messed up, “like it had been kicked in.” Items

missing were a refrigerator, a television, a DVD player, and some pants and shirts. The next

day, when appellant saw him coming out of his apartment, he told Mr. Caldwell that he had

taken the items because Mr. Caldwell’s roommate, Richard Flowers, had taken a cell phone

from appellant, which had nothing to do with appellant breaking into the apartment and

taking the items and returning everything taken. Mr. Caldwell also testified that he did not

give appellant permission to enter his property. Appellant did not testify regarding this issue.

Appellant did not testify to and provide a reasonable excuse for not having complied

with either of these conditions. Therefore, the findings of the court were not clearly against

the preponderance of the evidence. See Hutchinson v. State, 2014 Ark. App. 670, ___ S.W.3d

___.

5
Cite as 2015 Ark. App. 1

Counsel has carefully reviewed the record for any meritorious appeal issues and finds

none. Counsel has discussed possible appeal issues above, and explained why none have

merit. Rule 4-3(k)(1). From our review of the record and the brief presented to us, we find

compliance with Rule 4-3(k), and we grant counsel’s motion to be relieved and affirm the

order of revocation.

Affirmed; motion granted.

WHITEAKER and HIXSON , JJ., agree.

C. Brian Williams, for appellant.

No response.

6