APPEAL
FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-16-709]
HONORABLE CARLTON D. JONES, JUDGE
Phillip A. McGough, P.A., by: Phillip A. McGough, for
appellant.
Leslie
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
MIKE
MURPHY, Judge
This
no-merit appeal returns to us after we ordered rebriefing and
denied counsel's motion to withdraw. Rigsby v.
State, 2019 Ark.App. 17. The briefing deficiencies have
been corrected by counsel, and we affirm the revocation of
appellant Joshua Rigsby's probation and grant
counsel's motion to withdraw.
Rigsby
pleaded guilty in February 2017 to the crime of theft by
receiving and received a six-year term of probation. The
State filed a petition to revoke in May 2017 alleging three
violations of probation. Following a hearing, the Miller
County Circuit Court revoked Rigsby's probation and
sentenced him to six 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),
Rigsby's counsel has filed a motion to be relieved as his
attorney in which he alleges 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.
Rigsby was provided with a copy of his counsel's brief
and motion and informed of his right to file pro se points,
which he has chosen to do.
On
appeal of a revocation, we review whether the circuit
court's findings are clearly against the preponderance of
the evidence. Vail v. State, 2019 Ark.App. 238. 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. Id. Proof of just one violation of the
probation terms and conditions is sufficient to support
revocation. Id.
A
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.
As an
initial matter, we need not address the merits of
Rigsby's points on appeal. He first argues that he did
not receive adequate notice of the revocation hearing under
Arkansas Code Annotated section 16-93-308(a)(3). This
argument is not preserved for our review because it was not
made to the circuit court at the revocation hearing. Below,
Rigsby objected to the hearing on the basis of the sixty-day
rule, not on lack of notice.
Next,
Rigsby argues that the circuit court's findings that he
committed commercial burglary and was a felon in possession
of a firearm are not supported by sufficient evidence.
However, he does not challenge the circuit court's
finding that he failed to pay the court- ordered financial
obligations; Rigsby admitted below that he had never made a
payment. The court specified that the court-ordered
obligation was separate from the supervision fees. Because he
failed to challenge all of the circuit court's grounds
for revocation, we affirm without addressing the merits of
the order. Cox v. State, 2017 Ark.App. 73, at 2.
In the
no-merit brief, counsel has adequately explained why an
appeal would be wholly frivolous. Rigsby's probation was
conditioned on not owning, controlling, or possessing a
firearm or being in the company of any person possessing one,
and not committing a criminal offense punishable by
imprisonment. The evidence showed that Rigsby committed the
felony offense of possession of a firearm by certain persons
and commercial burglary. At the revocation hearing, Sergeant
Zachary White of the Texarkana Police Department testified
that he was called in on a commercial burglary of the
Save-A-Lot early on the morning of April 28, 2016. He
recalled that a vehicle had driven through the front doors,
and the ATM had been removed. White further testified that he
obtained a search warrant for the Rigsby residence, and when
it was executed, both Rigsby and his wife, Crystal Rigsby,
were present in the apartment. Under the mattress in the
bedroom, the police found a firearm. Rigsby was subsequently
arrested for committing the criminal offense of possession of
a firearm by certain persons. Crystal testified that she did
not know where the gun had come from and that she had never
seen Rigsby with it. Rigsby himself testified that he had no
knowledge that there was a gun in the apartment.
At the
end of the hearing, the circuit court found by a
preponderance of the evidence that Rigsby had committed the
offense of commercial burglary as well as being a felon in
possession of a firearm. In addressing the
felon-in-possession charge, the circuit court noted the
testimony that "there were only two individuals who
customarily were in the bedroom at that residence, one of
them being Ms. Rigsby who denied knowledge of said
firearm."
In
revoking Rigsby's probation on the basis of the
felon-in-possession charge, the circuit court found Crystal
more credible than Rigsby. We give great deference to the
circuit court in determining the preponderance of the
evidence because it is in a superior position to determine
the credibility of witnesses and to determine the weight to
be given to their testimony. Denson v. State, 2012
Ark.App. 105, at 4. Moreover, Crystal denied having knowledge
of the gun when there was no indication that it would have
been unlawful for her to possess a firearm. Thus, 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.
Because proof of just one violation of the probation terms
and conditions is sufficient to support revocation, we need
not address the other violations involving commercial
burglary and the failure to pay fees.
The
only other adverse ruling from the revocation itself was
Rigsby's request for dismissal at the outset of the
hearing. Rigsby moved to dismiss the revocation charges under
the sixty-day rule provided by Arkansas Code Annotated
section 16-93-307(b)(2) (Supp. 2013). Under section
16-93-307(b)(2), a revocation hearing must be held within
sixty days of the defendant's arrest. Rigsby contends
that because he was arrested on May 3 2016, and the
revocation hearing was not held until December 5 2016, there
was not compliance with the statute and that the ...