FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-08-379]
HONORABLE CARLTON D. JONES, JUDGE
Phillip A. McGough, P.A., by: Phillip A. McGough, for
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
M. GLOVER, JUDGE.
a no-merit appeal filed on behalf of Charles Douglas Taylor
after the Miller County Circuit Court revoked his probation
and sentenced him to twelve years' imprisonment. Pursuant
to Anders v. California, 386 U.S. 738 (1967), and
Rule 4-3(k) of the Rules of the Supreme Court and Court of
Appeals, Taylor's counsel has filed a motion to withdraw
on the ground this appeal is wholly without merit. The motion
is accompanied by an abstract and addendum of the proceedings
below, which address all objections and motions decided
adversely to Taylor, and a brief in which counsel explains
why there is nothing in the record that would support an
appeal. The clerk of our court provided Taylor with a copy of
his counsel's brief and notified him of his right to file
a pro se statement of points for reversal. Taylor has
submitted pro se points. We affirm the revocation of
Taylor's probation and grant counsel's motion to
was originally placed on six years' probation in July
2009 for the commission of Class B felony arson in May 2008.
In March 2011, he was found to have violated the terms of his
probation, and his probation was extended for six years. In
2014, Taylor was again found to have violated the terms of
his probation; probation was continued, and he was ordered to
serve a 90-day jail sanction at the Miller County Detention
February 2016, the State filed a petition to revoke
Taylor's probation, alleging he failed to abstain from
the use of alcoholic beverages or had manufactured,
possessed, used, sold, or distributed a controlled substance,
narcotic drug, or drug paraphernalia; failed to report to his
supervising probation officer as directed; failed to notify
the supervising officer of his change of residence; failed to
pay court-ordered financial obligations; and failed to pay
the probation-supervision fees. After a hearing on the
revocation petition, the circuit court found Taylor had
violated the terms and conditions of his probation, revoked
his probation, and sentenced him to twelve years'
of the Evidence
sole adverse ruling at the revocation hearing was the
revocation of Taylor's probation. A circuit court may
revoke a defendant's probation at any time prior to the
expiration of the period of probation if, by a preponderance
of the evidence, it finds that the defendant has inexcusably
failed to comply with a condition of his or her probation.
Kidwell v. State, 2017 Ark. App. 4, 511 S.W.3d 341.
The State has the burden of proving a condition of probation
has been violated; proof of only one violation must be shown
in order to sustain a revocation. Martin v. State,
2017 Ark. App. 399. The trial court's findings are
affirmed on appellate review unless they are clearly against
the preponderance of the evidence. Baney v. State,
2017 Ark. App. 20, 510 S.W.3d 799. The appellate courts defer
to the trial court's superior position to determine
credibility and the weight to be accorded testimony.
Black, Taylor's probation officer, testified Taylor
failed to report to him from August to December 2015. Taylor
admitted he had not reported since July 2015, claiming he was
afraid to report because another probation officer had
threatened to "lock him up" for being delinquent on
his fines. Black's testimony regarding Taylor's
failure to report and Taylor's admission of such failure
provides sufficient evidence of Taylor's violation of the
terms and conditions of his probation; therefore, the
revocation must be affirmed.
Pro Se Points
argument on appeal appears to be that his twelve-year
sentence is illegal because he has been subjected to three
revocation proceedings and has been sentenced to a total of
twenty-four years for Class B felony arson when the
sentencing range is only five to twenty years'
imprisonment. Illegal-sentence claims may be raised for
the first time on appeal. Anderson v. State, 2017
Ark. App. 300. A sentence is illegal when the circuit court
lacks the authority to impose it. Id. An illegal
sentence is one that is illegal on its face, which requires
that the sentence exceed the statutory maximum for the
offense for which the defendant was convicted; if a sentence
is within the statutory limits, it is legal. Id.
Taylor's sentence is not an illegal sentence.
circuit court has the authority to revoke and extend
probation multiple times. Ark. Code Ann. §§
5-4-303(d) and 5-4-309(f)(2)(B) (Repl. 2006). Furthermore, the
circuit court may modify felony probation during the
probationary period by imposing a period of confinement not
to exceed 120 days. Ark. Code Ann. §§ 5-4-306(b)(4)
and 5-4-304(d)(1)(A)(i) (Repl. 2006). Therefore, the circuit
court had the authority to revoke Taylor's probation and
to also impose a 90-day jail sentence. Although Taylor claims
he has been sentenced to twenty-four years for a Class B
felony that has a sentencing range of five to twenty years,
Ark. Code Ann. § 5-4-401(a)(3) (Repl. 2006), he has, in
fact, been sentenced to only twelve years' imprisonment.
Taylor is equating the periods of his probationary sentences
with terms of imprisonment. They are not the same. If the
trial court revokes a defendant's probation, it may
impose any sentence that might have been imposed originally
for the offense of which the defendant was found guilty, Ark.
Code Ann. § 5-4-309(f)(1)(A) (Repl. 2006), as long as
the sentence of imprisonment does not exceed the authorized
term of imprisonment for the offense. Ark. Code Ann. §
5-4-309(f)(1)(B). See also Ark. Code Ann. §
5-4-303(f) (imprisonment authorized when probation has been
previously extended). The State concedes Taylor is entitled
to credit for whatever part of the 90-day jail term he may
have served, Ark. Code Ann. § 5-4-304(e), but the
twelve-year sentence for a Class B felony upon the revocation
of his probation is within the sentencing range and is a
our review of the record and the briefs presented, we find
counsel has complied with the requirements of Rule 4-3(k) and
hold that there is no merit to this appeal. Accordingly, the
revocation of Taylor's ...