ANTONIO D. BROWN APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-10-242]
HONORABLE JOHN N. FOGLEMAN, JUDGE.
Ziegenhorn, for appellant.
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
J. GLADWIN, Judge.
D. Brown was sentenced to eight years' imprisonment by
the Crittenden County Circuit Court after the court revoked
his suspended sentence for residential burglary. He filed a
timely notice of appeal, but his attorney filed a motion to
withdraw and a no-merit brief based on Anders v.
California, 386 U.S. 738 (1967), and Rule 4-3(k)(1)
(2018) of the Rules of the Arkansas Supreme Court and Court
of Appeals. Counsel asserts that there is no issue of
arguable merit for an appeal. Brown filed pro se points for
reversal, and the State responded that Brown's arguments
are not either preserved for appellate review or have no
merit. We affirm the revocation and grant counsel's
motion to withdraw.
February 26, 2010, Brown was charged with burglary,
first-degree criminal mischief, and theft of property. On
July 21, 2010, he entered into a negotiated guilty plea
wherein he agreed to pay fines, costs, and over $9000 in
restitution, and he was sentenced to 120 months'
suspended imposition of sentence for the residential-burglary
conviction. On May 26, 2017, the State filed a petition to
revoke Brown's suspended sentence alleging that he had
violated the conditions by failing to pay fines, costs,
restitution, and fees; failing to live a law-abiding life, be
of good behavior, and not violate any state, federal, or
municipal law; and committing possession of a firearm by a
May 7, 2018 hearing on the State's petition, West Memphis
police officer Thomas Bracey testified that he was dispatched
based on allegations that people were in the park with
firearms. When he arrived, he observed people outside two
cars. He saw a pistol in the passenger-side door of the
vehicle belonging to April Williams, who is Brown's
cousin. He said that Brown claimed the gun belonged to him.
Bracey said that the gun was loaded when it was found.
counsel moved for a dismissal on the issue of fines, costs,
and restitution after Bracey had testified, and the circuit
court granted the motion. Thereafter, April Williams
testified that she had driven to the park on the night of
Brown's arrest. She said that Mike G. rode in her
passenger seat, and Selena was in the backseat. She said
Brown and T.T. had driven Mike G.'s car. She said that
when they arrived at the park, they got out of their cars,
and police arrived five minutes later. She said that police
put her in handcuffs and sat her in the back of the car after
they found a gun in the passenger-side door of her car and
some marijuana in her friend's purse. She then said that
police had placed her in their car before they found the gun.
She said that when she told police that she had not known the
gun was in her car, Brown said, "Don't take her to
jail, take me cause she's never been in no trouble."
She said that they arrested Brown and carried him away. She
said that Brown had not been in her car that day and that it
was Mike G. who had been in the car. She said that she did
not hear what Brown told police and that she could not say
what he told police was a lie.
testified that he had followed Williams to the park in a
separate car. He said that while sitting with his friends at
the park, police pulled up, grabbed Williams, and took her to
the police car. He said that the officer then looked over in
the passenger-side door and pointed down, saying that he saw
a gun. He said that the officer told them if no one took the
charge, Williams was going to jail for a gun charge. Brown
told the officer not to take Williams to jail but to take him
instead because Williams had never been in trouble. He said
that he was handcuffed and placed in the police car, and he
had thought what the police were doing was illegal, so he
stated that the gun belonged to him.
circuit court found by a preponderance of the evidence that
Brown admitted the gun was his and that he had violated the
terms and conditions of his suspended sentence. Brown was
sentenced by the court to eight years' imprisonment in
the Arkansas Department of Correction, and he was given 199
days' jail-time credit. This no-merit appeal followed.
court reviews the circuit court's findings to determine
if they are clearly against the preponderance of the
evidence, leaving any credibility calls and determinations of
the weight of evidence to the finder of fact. Bledsoe v.
State, 2014 Ark.App. 410. To revoke a suspended
sentence, the State has the burden of proving by a
preponderance of the evidence that a condition of the
suspended sentence was violated. Dye v. State, 2019
Ark.App. 234, ___ S.W.3d ___. Evidence that is insufficient
to support a criminal conviction may be sufficient to support
a revocation. Id. Proof of just one violation of the
terms and conditions of release is sufficient to support
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, supra, 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.
contends that there are no issues of merit to support an
appeal, and he has adequately explained why an appeal would
be wholly frivolous. There were no objections made at the
revocation hearing; thus, the only issue to be addressed is
whether there was sufficient evidence to revoke Brown's
suspended imposition of sentence.
suspended sentence was conditioned on his not violating any
local, state, or municipal laws. The evidence was that
Officer Bracey observed a gun in the passenger-side door of
Williams's vehicle, and he asked to whom the gun
belonged. Brown stated that the firearm was his. Even though
Brown testified at the hearing that the gun did not belong to
him, he admitted that he had claimed ownership of the gun at
the time of his arrest. We note that there was testimony that
the gun did not belong to Williams; Brown had not been in
Williams's car; Mike G. had ridden to the park in
Williams's passenger seat; and Brown drove Mike G.'s
car to the park. However, the circuit court found that it
made more sense from the testimony that Brown ...