DEMORCUS L. SMITH APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. 02CR-14-98]
HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE
Law Office, by: Gary W. Potts, for appellant.
W. GRUBER, Chief Judge
case has returned to us after rebriefing. It is a companion
case to Smith v. State, 2019 Ark.App. 400 (case No.
CR-18-897), also handed down today. Both are no-merit appeals
from orders of revocation of probation entered on July 10,
2018. The court held one hearing for both cases. In this
case, the Ashley County Circuit Court revoked Demorcus
Smith's probation from an underlying conviction entered
on a plea of guilty to second-degree sexual assault on
December 9, 2014.
to Arkansas Supreme Court Rule 4-3(k) and Anders v.
California, 386 U.S. 738 (1967), Smith's attorney
has filed a motion to withdraw stating that there is no merit
to an appeal. The motion is accompanied by an abstract and
addendum of the proceedings below and a brief in which
counsel explains why there is nothing in the record that
would support an appeal. The clerk of this court served Smith
with a copy of counsel's brief and notified him of his
right to file a pro se statement of points for reversal
within thirty days; he has not filed a statement. We affirm
the conviction and grant counsel's motion to withdraw.
has briefed the only adverse ruling, sufficiency of the
evidence to support the revocation. Smith pleaded guilty to
the underlying charge of second-degree sexual assault, and an
order was entered on that plea on December 9, 2014, placing
him on probation for a period of sixty months. A petition to
revoke was filed in 2017 for committing the offenses of
failure to register as a sex offender; testing positive for
drugs; failure to report as directed; and failure to pay
fines, costs, and fees as ordered. On September 12, 2017, the
court entered an order finding that Smith had admitted
violating the conditions of his probation and extending his
probation for an additional seventy-two months, ending
September 5, 2023.
appeal is from an order entered after a second petition to
revoke was filed on February 27, 2018. In the second
petition, the State alleged that Smith had violated the
conditions of his probation by failing to report to his
probation officer as directed and by not remaining current on
the payment of fines, fees, and costs.
court held a hearing on July 9, 2018. Smith's probation
officer testified that Smith had failed to meet with her as
directed in September, November, twice in December, and not
at all after the violation report was filed in January 2018,
seven months before the hearing. Smith admitted on the stand
that his probation officer was correct about his failure to
meet with her, but he explained that he had been sick, had
been busy with work, and had left two messages with his
probation officer to reschedule, but she had not returned his
calls. He explained that he had not understood how his
failure to report could affect him or that he could go to
prison. He testified that he was a good person and did not
deserve to go to jail. His aunt testified that she did not
think Smith was able to "understand the seriousness of
court found Smith had violated the terms and conditions of
his probation by willfully failing to report, noting he had
already been revoked for the same type of violation in 2017
and been given probation. The court entered an order revoking
his probation on July 10, 2018, sentencing him to eight years
may be revoked upon a finding by a preponderance of the
evidence that the defendant has inexcusably failed to comply
with a condition of the probation. Vail v. State,
2014 Ark.App. 407, 438 S.W.3d 286. The State bears the burden
of proof but need only prove that the defendant committed one
violation of the conditions. Richardson v. State, 85
Ark.App. 347, 157 S.W.3d 536 (2004). We will not overturn a
circuit court's decision to revoke probation unless it is
clearly against the preponderance of the evidence. Leach
v. State, 2015 Ark.App. 17, at 4, 453 S.W.3d 690, 693.
In the present case, Smith admitted the violations testified
to by his probation officer.
our review of the record and the brief presented to us, we
hold that counsel has complied with Anders and Rule
4-3(k) and hold that there is no merit to an appeal.
Accordingly, we affirm Smith's conviction and grant
counsel's motion to withdraw.
motion to ...