FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-15-697]
HONORABLE RALPH WILSON, JR., JUDGE
Butler Bernard, Jr., for appellant.
MARK KLAPPENBACH, JUDGE
no-merit appeal returns to us after we ordered rebriefing and
denied counsel's motion to withdraw. Vail v.
State, 2019 Ark.App. 8. The briefing deficiencies have
been corrected by counsel, and we affirm the revocation of
Vail's probation and grant counsel's motion to
Shawn Paul Vail pleaded guilty in 2015 to the crime of
financial identity fraud and received a six-year term of
supervised probation. The State filed a petition to revoke in
May 2017 alleging six violations of probation. Following a
hearing, the Crittenden County Circuit Court revoked his
probation and sentenced him accordingly. Pursuant to
Anders v. California, 386 U.S. 738 (1967), and Rule
4-3(k)(1) of the Rules of the Arkansas Supreme Court and
Court of Appeals, Vail's attorney has filed a no-merit
brief, along with a motion to withdraw as counsel, asserting
that there is no issue of arguable merit for an appeal. Vail
was notified of his right to file pro se points for reversal,
but he has not filed any such points.
appeal of a revocation, we review whether the circuit
court's findings are clearly against the preponderance of
the evidence. Jones v. State, 2013 Ark.App. 466. To
revoke probation, the State has the burden of proving by a
preponderance of the evidence that a condition of probation
was violated. Id. Because the burden of proof is by
a preponderance of the evidence rather than beyond a
reasonable doubt, evidence that is insufficient to support a
criminal conviction may be sufficient to support a
revocation. Joiner v. State, 2012 Ark.App. 380.
Proof of just one violation of the probation terms and
conditions is sufficient to support revocation.
Richardson v. State, 85 Ark.App. 347, 157 S.W.3d 536
request to withdraw because the appeal is wholly without
merit must be accompanied by a brief that contains a list of
all rulings adverse to appellant and an explanation as to why
each ruling is not a meritorious ground for reversal. Ark.
Sup. Ct. R. 4-3(k)(1). The brief must 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. In deciding
whether to allow counsel to withdraw from appellate
representation, the test is not whether counsel thinks the
circuit court committed no reversible error but whether the
points to be raised on appeal would be wholly frivolous.
Brown v. State, 2018 Ark.App. 367, 553 S.W.3d 787.
Pursuant to Anders, we are required to determine
whether the case is wholly frivolous after a full examination
of all the proceedings. T.S. v. State, 2017 Ark.App.
578, 534 S.W.3d 160.
case, although the circuit court found that the State had
proved four of the alleged violations by a preponderance of
the evidence, we need to address only one because a single
violation is sufficient to affirm the revocation of
probation. Richardson, supra. The State
alleged that Vail had violated the condition of living a
law-abiding life and not breaking the law. Specifically, Vail
was accused of possessing methamphetamine. The evidence,
presented through the testimony of law enforcement officers
and crime-laboratory personnel, showed that while Vail was in
a hotel room occupied by several people, a baggie of
methamphetamine was found in the bathroom where Vail had just
been. Vail openly admitted that he was an addict who had
relapsed and that the drugs were his. Chemical testing proved
that the drug was methamphetamine. With a
preponderance-of-the-evidence standard, counsel is correct
that there can be no issue of arguable merit raised on appeal
about whether the State proved this alleged violation.
recites that there were two evidentiary objections raised
during the revocation hearing but that neither of the rulings
on those objections were adverse to Vail. Both objections
were raised by defense counsel and alleged that (1) a
witness's answer was conclusory and (2) one of the
prosecutor's questions was posed in a conclusory fashion.
The first objection was sustained by the circuit court, and
the second objection resulted in withdrawal of the question.
We agree that these rulings were not adverse to Vail.
states that the circuit court denied Vail's motion to
continue the sentencing hearing for eleven days, which was an
adverse ruling, but counsel explains why this would not
support a meritorious argument for appeal. After Vail was
found to have inexcusably failed to comply with the terms of
probation, the circuit court set a sentencing hearing for one
month later to permit Vail an opportunity to
"immediately" apply for the county drug court or
mental-health court. If Vail did not gain entry into one of
those programs, the circuit court was "looking at a
community correction sentence of two to four years."
sentencing hearing, Vail stated that his application had been
denied by the mental-health court but that he had not
completed the application process with drug court, which he
had started in the previous two weeks, so he wanted a
continuance for eleven more days. Defense counsel echoed the
request for eleven more days to see that process through. The
prosecutor told the circuit court that he had contacted drug
court and had been told with certainty that Vail would not be
admitted. The circuit court considered the request, believed
that drug court would likely send Vail to treatment, and then
sentenced Vail to two years in a regional correctional
facility that would "most likely have a treatment
center." Counsel correctly states that the circuit court
is given wide discretion on whether to grant a continuance,
the court had already given Vail a month in order to seek
entry, Vail delayed applying to drug court for two weeks, and
Vail ultimately would receive treatment in custody. We agree
with counsel that no issue of arguable merit could be raised
on appeal regarding the court's discretionary decision
not to grant an additional continuance in this circumstance.
on our review of the record and counsel's brief, we hold
that counsel has complied with the requirements of
Anders and Arkansas Supreme Court Rule 4-3(k)(1) and
that the appeal has no merit. We affirm the revocation of