FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-15-483]
HONORABLE ROBERT H. WYATT, JR., JUDGE
Law Office, by: Gary W. Potts, for appellant.
no-merit appeal, a Jefferson County Circuit Court revoked
Alvontae Whitmore's probation and sentenced him to ten
years in the Arkansas Department of Correction. Pursuant to
Anders v. California, 386 U.S. 738 (1967), and
Arkansas Supreme Court Rule 4-3(k), Whitmore's counsel
has filed a motion to be relieved as his attorney, alleging
that this appeal is without merit. Counsel has also filed a
brief in which he contends that all adverse rulings have been
abstracted and discussed. Our review of the record reveals
that there is no meritorious ground for an appeal. We affirm
and grant appellate counsel's motion to withdraw.
brief summary of the facts and procedural history follows.
Whitmore was originally charged by information with the
felony offenses of residential burglary and theft of property
in September 2015. He was convicted and sentenced in January
2016 to sixty months of probation. He was to abide by the
terms and conditions of his probation that included a list of
monetary obligations. On September 20, 2016, a petition to
revoke Whitmore's probation was filed alleging multiple
violations of the terms and conditions of his probation. A
supplemental petition to revoke probation was filed seven
days later along with two violation reports reflecting that
Whitmore was charged with committing multiple serious
felonies on two separate occasions.
revocation hearing conducted on March 7, 2017, Whitmore
appeared with counsel. Whitmore's probation officer
testified to his various probation violations, including that
he had tested positive for hydrocodone, heroin, and marijuana
on two occasions. Whitmore failed to report to the office for
the entire month of May and once in July. He also was
delinquent in his monetary obligations. Lastly, Whitmore had
left the State of Arkansas without the necessary permission.
At the conclusion of the hearing, the circuit court found
Whitmore guilty of violating the terms and conditions of his
probation and sentenced him to a total term of ten years in
the Arkansas Department of Correction. The court dismissed
the two supplemental petitions for having insufficient proof.
filing a motion for reconsideration on April 20, 2017,
Whitmore's counsel discovered that Whitmore had filed a
pro se notice of appeal on April 18, 2017. On May 7, 2017,
the circuit court conducted a hearing on the motion for
reconsideration. At the hearing, Whitmore clarified on the
record that he wished to revoke his pro se notice of appeal
and that he wanted to allow the court to make a ruling on the
motion for reconsideration. The court then ruled from the
bench that it had heard all the evidence introduced at the
March hearing and did not see any reason to change the
ruling, and it denied the motion. Thereafter, the notice of
appeal and motion to be relieved as counsel were filed.
test for filing a no-merit brief is not whether there is any
reversible error but whether an appeal would be wholly
frivolous. Wright v. State, 2015 Ark.App. 300, at 1.
appeal, counsel first discussed the circuit court's
revocation of Whitmore's probation. A circuit court may
revoke a defendant's probation at any time before the
expiration of the period of probation if it finds by a
preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of his or her
probation. Ark. Code Ann. § 16-93-308(d) (Repl. 2016).
This court will not reverse the circuit court's decision
to revoke unless it is clearly against the preponderance of
the evidence. Hart v. State, 2017 Ark.App. 434, 530
S.W.3d 366. Because the determination of a preponderance of
the evidence turns on questions of credibility and the weight
to be given testimony, we defer to the circuit court's
superior position. Id. Finally, the State need only
show that the appellant committed one violation in order to
sustain a revocation. Id. Relying on the probation
officer's testimony citing multiple probation violations,
the circuit court did not clearly err in finding Whitmore
guilty of violating the terms and conditions of his
counsel discussed the denial of Whitmore's objection to
the State's entry of Facebook posts. The probation
officer testified that he would check Facebook when
supervising probationers to look for incriminating posts.
Defense counsel objected to the officer's reading the
incriminating posts he had discovered on Whitmore's
Facebook page, arguing they were unreliable and that there
was an insufficient foundation. The circuit court correctly
overruled the objection explaining that the rules of evidence
do not strictly apply in probation-revocation proceedings.
Ark. R. Evid. 1101(b)(3).
counsel discussed the denial of Whitmore's two objections
to the State's entry of 911 dispatch information.
Whitmore objected on the grounds that the person who had
supplied the information and description to the officer was
not available for examination. The circuit court did not err
when it overruled both objections because not only are rules
of evidence inapplicable to revocation proceedings, but also
the statements were not being offered to prove the truth of
the matter asserted and were therefore not hearsay. Ark. R.
counsel discussed the denial of Whitmore's objection to
testimony as being outside the scope of direct examination
during the State's cross-examination. The court overruled
the objection. Evidentiary matters regarding the
admissibility of evidence are left to the sound discretion of
the circuit court and rulings in this regard will not be
reversed absent an abuse of discretion, which we do not find
here. Newman v. State, 327 Ark. 339, 347, 939 S.W.2d
811, 815-16 (1997).
Lastly, counsel discussed the denial of Whitmore's motion
for reconsideration. The circuit court has discretion to set
punishment within the statutory range of punishment provided
for a particular crime. Deere v. State, 59 Ark.App.
174, 954 S.W.2d 943 (1997). The court sentenced Whitmore to a
term of ten years for residential burglary and an additional
six years for theft of property to run concurrently.
Residential burglary is a Class B felony. Ark. Code Ann.
§ 5-39-201 (Repl. 2016). For a Class B felony, the
sentence shall be not less than five years nor more than
twenty years. Ark. Code Ann. § 5-4-401. Thus, Whitmore
was sentenced within the statutory range of punishment.
our review of the record and the brief presented to us, we
find compliance with Rule 4-3(k) and that there is no ...