MARCUS D. SMITH APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. CR-2011-1048]
HONORABLE JOHN N. FOGLEMAN, JUDGE
Ginn, for appellant.
F. VIRDEN, Judge
for appellant Marcus Smith has filed this no-merit appeal and
motion to withdraw from the sentencing order revoking his
probation. Pursuant to Arkansas Supreme Court Rule 4-3(k)(1)
(2015), and Anders v. California, 386 U.S. 738
(1967), counsel's brief asserts that there is no issue of
arguable merit to present on appeal. Because we agree, we
affirm the revocation and grant counsel's motion to
October 31, 2011, Smith entered a negotiated plea on a charge
of possession of pseudoephedrine with the purpose to
manufacture methamphetamine, a Class D felony, and was
sentenced to eighteen months' probation. Smith was
ordered to pay fines, court fees and costs, and probation
fees; and he was directed to obey the terms and conditions of
October 4, 2012, the State filed a petition to revoke
Smith's probation, alleging that he had failed to pay
fines, costs, and fees; that he failed to report to the
probation office; that he failed to notify the sheriff and
probation officer of his current address and employment; and
that he departed from his approved residence without
permission. After a hearing on March 28, 2013, Smith's
probation was revoked, and the circuit court sentenced him to
thirty-six months' probation conditioned upon serving
ninety days in the Crittenden County jail. The conditions of
his probation were, among other things, that he must report
to his probation officer; pay fines, court costs, and
probation fees; and cooperate with his probation officer and
report to him or her as directed.
6, 2014, the State filed a petition to revoke alleging that
Smith failed to report to his probation officer; failed to
pay fines, costs, and fees as directed; and that he failed to
notify the sheriff of his current address and employment.
hearing on May 27, 2015, Amy Peyton, who collects
court-imposed fines and fees for the Crittenden County
Sheriff's Office, testified that Smith was ordered to pay
$1770 in court fines, costs, and fees in monthly payments of
$95. She testified that Smith made one $75 payment in
December 2011 and another payment of $100 on the day of the
hearing. April Thomas, Smith's parole supervisor,
testified that Smith failed to make some of his scheduled
appointments and that he had not been to an appointment since
August 14, 2013.
hearing, Smith testified about his inability to pay fines,
costs, and fees, and about his failure to report to his
probation officer. Smith testified that at the present time,
he, his girlfriend, and his children were living in a van, or
sometimes at hotels or friends' homes. He testified that
for a while he had been living with his mother but that she
had made him leave when Smith helped convict his brother of
molesting Smith's son. Smith testified that around seven
months prior to the hearing, he had been living in a
three-bedroom home through an assistance program that helped
people find jobs and adhere to the conditions of probation.
Smith testified that he was working for a construction
company and that he earned about $280 a week, but that he had
not worked from June 2013 until a week and a half prior to
the hearing. Smith testified that he relied on the city bus
and his grandmother for transportation.
conclusion of the testimony, the circuit court stated that it
was sympathetic toward Smith's predicament but that it
found that Smith had inexcusably failed to report to his
probation officer. The circuit court revoked Smith's
probation and sentenced him to two years' imprisonment in
the Arkansas Department of Correction. The circuit court also
found that Smith's fines and costs would be satisfied
with this sentence.
no-merit brief on appeal discusses the circuit court's
sole adverse ruling, the revocation of his probation, and
explains why it is not a meritorious ground for reversal.
Smith has not raised pro se points for reversal; accordingly,
the State declined to file a responsive brief.
may be revoked upon a finding by a preponderance of the
evidence that the defendant has inexcusably failed to comply
with a condition of the probation. Williams v.
State, 2013 Ark.App. 422, at 3. The circuit court is
required to find only one violation of Smith's probation
conditions in order to revoke probation. See Harris v.
State, 98 Ark.App. 264, 267, 254 S.W.3d 789, 792 (2007).
On appeal, a revocation will not be overturned unless the
decision is clearly against the preponderance of the
evidence. Id. Because this determination turns on
questions of credibility and the weight to be given
testimony, we defer to the circuit court's superior
position. Rogers v. State, 2014 Ark.App. 310, at 2.
carefully examined the record and the brief presented to us,
we hold that counsel has complied with Rule 4-3(k)(1) and
Anders, supra, and that there is no merit
to this appeal. The State presented evidence through
Smith's parole supervisor, April Thomas, that Smith
failed to report to his probation officer as ordered.
Additionally, Smith admitted all allegations and testified
that he had transportation available to him and that he knew
where the probation office was located. Though he testified
that he had endured personal hardship during his probation,
he admitted that he had failed to attend most of his
scheduled appointments and that he had the means to keep his
circuit court exercised its role as the finder of fact and
made a determination of credibility with regard to
Smith's explanation for failure to report. Therefore, we
hold that the circuit court's finding that Smith
inexcusably failed to report to his probation officer was not
clearly against the ...