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Burris v. State

Court of Appeals of Arkansas, Division III

June 21, 2017

KENNETH WILLIAM BURRIS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-14-489] HONORABLE GARY COTTRELL, JUDGE

          Brett D. Watson, Attorney at Law PLLC, by: Brett D. Watson, for appellant.

         No response.

          ROBERT J. GLADWIN, Judge

         This no-merit appeal is from the revocation of appellant Kenneth Burris's probation and suspended imposition of sentence for which he was sentenced to ten years in the Arkansas Department of Correction (ADC) and ten additional years' suspended imposition of sentence. 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, Burris's counsel has filed a motion to withdraw on the basis that the appeal is wholly without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to Burris made by the circuit court on all objections, motions, and requests made by either party, with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The clerk of this court furnished Burris with a copy of his counsel's brief and notified him of his right to file pro se points; Burris did not file any points.

         A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and addendum. Ark. Sup. Ct. R. 4-3(k)(1). The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Id.; see also Eads v. State, 74 Ark.App. 363, 47 S.W.3d 918 (2001). This framework ensures that indigents are afforded their constitutional rights. Campbell v. State, 74 Ark.App. 277, 47 S.W.3d 915 (2001). In furtherance of the goal of protecting these constitutional rights, it is the duty of both counsel and this court to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. See id.

         I. Facts

         Burris pleaded guilty in April 2015 to two counts of second-degree sexual assault. He was sentenced to five years' probation on one count and fifteen years' suspended imposition of sentence on the other, along with various conditions. The State petitioned to revoke probation and the suspended imposition of sentence on April 26, 2016, alleging that Burris hadviolated his conditions by contacting one of the victims and not paying fines.

         At the revocation hearing, Lisa Whetstine, the Crawford County fines and restitution coordinator, testified that Burris, during the preceding year, had made only one complete monthly payment and one partial payment. A victim and her mother testified that Burris had made contact with the victim three to five times. The mother testified that Burris did not try to leave during some of those contacts. Burris and his fiancée testified that any contact was involuntary and that Burris told the victim to get away. Burris also testified that he made payments as he was able but conceded that he had not made the required payments.

         Finding the State's witnesses more credible, the circuit court ruled that the State had proved by a preponderance of the evidence that Burris inexcusably violated both alleged conditions. The circuit court sentenced him to ten years in the ADC and ten more years' suspended imposition of sentence pursuant to a sentencing order entered on August 31, 2016. Burris filed a timely notice of appeal on September 8, 2016.

         II. Discussion of Adverse Rulings

         There are no nonfrivolous issues that support an appeal in this case. In compliance with the directive in Anders, supra, and Rule 4-3(k)(1), counsel for Burris has thoroughly examined the circuit court record of this proceeding but found no error that would support an appeal. As required by Rule 4-3(k), the reasons that the adverse rulings provide no meritorious grounds for appeal are discussed in Counsel's brief. Counsel indicates that there were four unfavorable rulings for Burris: the revocation, a sustaining of the State's hearsay objection, an overruled objection, and a motion for continuance that was not ruled upon.

         A. Revocation

         There is no meritorious ground to argue that the circuit court clearly erred in finding that the State proved by a preponderance of the evidence that Burris violated the conditions. The State argued that Burris had violated the conditions in two ways, either one of which was enough to ...


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