FROM THE GREENE COUNTY CIRCUIT COURT [NO. 28CR-14-186]
HONORABLE BRENT DAVIS, JUDGE
Caroline Wilson, for appellant.
Rutledge, Att'y Gen., by: Ashley Priest, Ass't
Att'y Gen., for appellee.
W. GRUBER, Chief Judge.
no-merit revocation case from the Greene County Circuit Court
returns to us after our order for rebriefing. See
Lenderman v. State, 2017 Ark.App. 1 (denying
counsel's motion to withdraw because her brief did not
comply with various requirements of Arkansas Supreme Court
Rule 4-3(k)(1) (2016)). Counsel has again filed a motion to
withdraw on the ground that there is no merit in the appeal
of the circuit court's decision to revoke Eric
Lenderman's revocation of probation for theft of a
credit/debit card or account number and for fraudulent use of
a credit/debit card or account number. Counsel's brief in
the present case complies with Rule 4-3(k)(1)'s
requirements, enabling us to consider her arguments that
there are no meritorious grounds for reversing the
revocation. We also now consider Lenderman's pro se
points for reversal and the State's brief responding to
the issues he has raised.
State alleged in a December 2014 petition to revoke that
Lenderman had violated conditions of his probation requiring
him to report as directed, reside at an approved address, and
make monthly payments toward his fees, fines, costs, or
restitution as ordered. In a supplemental petition of April
2015, the State alleged that Lenderman had failed to make any
payments toward fines, fees, costs, or restitution, and that
he currently owed $31, 420. The circuit court revoked
Lenderman's probation at the conclusion of a revocation
hearing conducted in November 2015.
present brief lists the rulings in the proceedings below that
were adverse to Lenderman, and counsel explains "why
each adverse ruling is not a meritorious ground for
reversal." Ark. Sup. Ct. R. 4-3(k)(1). Counsel notes
that the circuit court ruled adversely to Lenderman by
sustaining the State's hearsay objections when he
attempted to answer questions about what a probation officer
in Missouri had told him after he had moved there. Counsel
explains that the court's rulings were not error because
the questions clearly called for hearsay testimony; that
Lenderman suffered no prejudice because further testimony
would not have countered the proof that he had violated
various conditions of probation; and that one violation of
conditions is enough to support a revocation. See
Ark. Code Ann. § 16-93-308(d) (Supp. 2015); Rudd v.
State, 76 Ark.App. 121, 61 S.W.3d 885 (2001).
also lists the circuit court's final ruling that was
adverse to Lenderman-the decision to revoke his
probation. Counsel notes that Lenderman's
Arkansas probation officer testified that a transfer of
probation to Missouri was denied and that afterward,
Lenderman did not report back to his Arkansas probation
officer as directed. Counsel also points to Lenderman's
acknowledgment that he had not made any payments toward
restitution, fines, or fees.
has filed six pro se points, half of them claiming
ineffective assistance of counsel. In a separate point, he
claims that his Arkansas probation officer could have called
him on his cell phone as the officer had previously done. He
also claims that he now has the funds to pay full restitution
and was unable to pay previously because his county would
"not accept payments on an active warrant."
Finally, he asks that our court give him a second chance to
defend his case and reinstate his probation. We agree with
the State that these additional points are without merit or
were not raised during the hearing. See Nichols v.
State, 69 Ark.App. 212, 218, 11 S.W.3d 19, 23 (2000)
(noting that claims of ineffective assistance of counsel are
not preserved for our review because they were not previously
presented to the circuit court); Carter v. State,
2015 Ark. 166, at 9 n.6, 460 S.W.3d 781, 789 n.6 (noting that
arguments raised for the first time on appeal will not be
addressed because the court below did not have the
opportunity to consider them).
test for filing a no-merit brief is not whether there is any
reversible error but rather would an appeal be wholly
frivolous. House v. State, 2015 Ark.App. 280, at 2.
From our review of the record and counsel's brief, we
find that counsel has complied with Rule 4-3(k). Having found
compliance with Rule 4-3(k), and having considered
Lenderman's pro se points for reversal, we hold that
there is no merit to an appeal. We affirm Lenderman's
conviction, and we grant counsel's motion to withdraw.
Affirmed; motion granted.
Klappenbach and Hixson, JJ., agree.
Counsel states in her brief that the
circuit court did not err in finding sufficient evidence to
support a finding that Lenderman violated conditions of his
probation. The burden is on the State to prove a violation of
a condition by a preponderance of the evidence; on appeal,
the circuit court's findings will be upheld unless they
are clearly ...