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Parmer v. State

Court of Appeals of Arkansas, Division I

January 18, 2017

HERBERT PARMER, JR. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-13-5-1] HONORABLE RANDY WRIGHT, JUDGE.

         AFFIRMED; MOTION TO WITHDRAW GRANTED.

          Anthony S. Biddle, for appellant.

          Leslie Rutledge, Att'y Gen., by: Amanda S. Jegley, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge.

         This is a no-merit appeal from the revocation of appellant Herbert Parmer, Jr.'s, probation. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) (2016) of the Rules of the Arkansas Supreme Court and Court of Appeals, Parmer's counsel has filed a motion to withdraw on the ground that the appeal is wholly without merit. The motion is accompanied by an abstract and brief referring to everything in the record that might arguably support an appeal and a statement of reasons why none of those rulings would be a meritorious ground for appeal. Parmer has filed pro se points for reversal, and the State has filed a brief asserting that his arguments are either barred or without merit. We affirm and grant counsel's motion to withdraw.

         Parmer pled no contest on September 16, 2013, to delivery of methamphetamine, was sentenced to ten years' probation, and ordered to pay a fine, costs, and fees. Parmer was subject to conditions of probation filed on October 10, 2013. The State filed a petition to revoke on November 21, 2014, and alleged that Parmer had violated his probation conditions by testing positive or admitting to having used methamphetamines on May 8, 2014, June 16, 2014, July 15, 2014, and August 11, 2014. Parmer also had failed to graduate from a substance-abuse education class because he had not been able to pass a drug test. Further, it was alleged that Parmer had failed to report as directed for a substance-abuse education class. Finally, it was alleged that Parmer had been directed to report to probation on May 6, 2014, and he had failed to do so.

         The State filed a second petition for revocation on June 9, 2015, alleging that Parmer had violated his probation by offering a urine specimen that was not his for drug testing. That sample was cold and tested negative for illicit drugs. The second test he took that day tested positive for amphetamines.

         The State filed an amended petition for revocation on October 19, 2015, and re-alleged the violations as set forth in the previous two petitions. The State included that Parmer had graduated from the substance-abuse education class on January 5, 2015, and Parmer had not reported to his probation officers from June 2, 2015, to October 6, 2015, when he had been released from jail. The State filed another amended petition on November 5, 2015, and added that on October 20, 2015, and October 21, 2015, Parmer had tested positive for methamphetamines.

         At the revocation hearing held January 19, 2016, Christian Williams testified that he was Parmer's parole officer and that Parmer had tested positive or had admitted to having used drugs as stated on the alleged dates in the petitions for revocation. He said that Parmer had tested positive for drugs seven out of twelve times. Williams also testified regarding the drug test for which Parmer had provided someone else's urine for testing.

         Parmer testified that he agreed with all the testimony provided by Williams and admitted having a drug problem. He asked the circuit court for help in being placed in a rehabilitation program. He admitted testing positive the last time he had appeared in court, that he had a drug problem, and that he had been lying. He admitted bringing in someone else's urine to be tested and said he had been jailed for seven days as a result. Mallory Evans testified that she worked for Arkansas Community Correction, that she had read the results of the drug test done on Parmer on the day of trial, and that it was negative, "but the faint line would make me think that he had used in the past three or four days."

         The trial court found that the allegations in the revocation petition were true and sentenced Parmer to four years in the Arkansas Department of Correction with a judicial transfer to the Regional Punishment Facility. This timely appeal followed.

         Counsel contends that there are no nonfrivolous issues that would support an appeal in this case. We agree. Counsel discusses the sole objection that was raised during the hearing. When the State moved to introduce State's Exhibit 2, which was a collective bundle of certified copies of Parmer's convictions in Texas, the following colloquy occurred:

Defense Counsel: The only thing I've got to say about that, Your Honor, is those cases are ten years ...

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