APPEAL
FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-16-129]
HONORABLE BRENT HALTOM, JUDGE
Phillip A. McGough, P.A., by: Phillip A. McGough, for
appellant.
One
brief only.
KENNETH S. HIXSON, Judge
Appellant
Evelyn Seamster pleaded guilty to possession of cocaine, and
on August 2, 2016, the trial court entered a sentencing order
placing Seamster on six years' probation. Seamster's
written conditions of probation required her to report to her
probation officer as directed and to pay a fine of $2000 and
other costs at a rate of $60 per month. Seamster's
conditions also prohibited her from using or possessing
controlled substances.
On
April 2, 2018, the State filed a petition to revoke
Seamster's probation, alleging that she violated her
conditions by failing to report to probation, failing to pay
her fine and costs, and testing positive for cocaine. After a
revocation hearing held on March 19, 2019, the trial court
found that Seamster violated her conditions as alleged by the
State. On March 26, 2019, the trial court entered a
sentencing order revoking Seamster's probation and
sentencing her to six years in prison. Seamster now appeals
from the revocation of her probation. We affirm.
Pursuant
to Anders v. California, 386 U.S. 738 (1967), and
Arkansas Supreme Court Rule 4-3(k)(1), Seamster's counsel
has filed a motion to be relieved on the grounds that this
appeal is wholly without merit. Seamster's counsel's
motion was accompanied by a brief discussing all matters in
the record that might arguably support an appeal, including
any objections and motions made by appellant and denied by
the trial court, and a statement of the reason each point
raised cannot arguably support an appeal. Seamster was
provided with a copy of her counsel's brief and notified
of her right to file pro se points for reversal, but she has
not filed any points.
Seamster's
probation officer, Sharnell Yolanda Huff, testified that the
primary reason for filing the petition to revoke
Seamster's probation was because she had quit reporting.
Huff testified that Seamster last reported to probation on
October 26, 2017. Seamster was directed to report again in
November 2017, but she failed to report then or at any time
thereafter.
Huff
also testified about Seamster's other probation
violations. Huff stated that Seamster tested positive for
cocaine on August 15, 2017. Huff further stated that Seamster
had made no payments toward her fine and costs.[1]
Seamster
testified on her own behalf. She acknowledged that she had
failed to pay her fine and costs and had quit reporting to
her probation officer. Seamster stated that she had lost her
husband the year before being placed on probation and that
she was severely depressed. She stated that she has medical
problems, including asthma and COPD, which prevent her from
working. Seamster did, however, acknowledge that she receives
monthly disability income. Seamster indicated that she quit
reporting or contacting her probation officer because she was
afraid to go to jail. She said that she can and will pay her
fine and costs if she is kept on probation. Seamster
apologized for her failure to comply with probation, stating,
"I went into a depression and barricaded myself."
Arkansas
Code Annotated section 16-93-308(d) (Supp. 2017) provides
that if a court finds by a preponderance of the evidence that
the defendant has inexcusably failed to comply with a
condition of probation, the court may revoke the probation at
any time prior to the expiration of the probation. On appeal,
the trial court's decision will not be reversed unless it
is clearly against the preponderance of the evidence.
Harper v. State, 2016 Ark.App. 345.
The
only adverse ruling in this case was the trial court's
decision to revoke appellant's probation, and
appellant's counsel accurately asserts that there can be
no meritorious challenge to the sufficiency of the evidence
supporting the revocation. Although the State bears the
burden of proof, it need only prove one violation to support
a revocation. Kampmann v. State, 2019 Ark.App. 156,
573 S.W.3d 544. Although Seamster had been reporting to her
probation officer for the first fourteen months of her
probation, she quit reporting to probation altogether after
that. Seamster's probation officer testified-and Seamster
admitted-that Seamster had failed to report to probation as
directed for a period of more than a year preceding the
revocation hearing. Seamster provided no reasonable excuse
for her failure to report. Therefore, the trial court's
revocation of Seamster's probation was not clearly
against the preponderance of the evidence, and there could be
no meritorious argument to the contrary on appeal.
Based
on our review of the record and the brief presented, we
conclude that there has been compliance with Rule 4-3(k)(1)
and that this appeal is without merit. Consequently,
appellant's counsel's ...