FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-14-897]
HONORABLE JOHN N. FOGLEMAN, JUDGE
Ziegenhorn, for appellant.
LARRYD. VAUGHT, Judge
a no-merit appeal filed on behalf of Jermaine Bohanon
following the Crittenden County Circuit Court's
revocation of his suspended imposition of sentence (SIS).
Bohanon's counsel filed a timely notice of appeal
followed by a no-merit brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Arkansas Supreme
Court Rule 4-3(k) (2018), along with a motion to be relieved
as counsel asserting that there is no issue of arguable merit
on appeal. We affirm and grant counsel's motion to
December 22, 2014, Bohanon pled guilty to possession of a
controlled substance, a Class C felony, and furnishing,
possessing, or using prohibited articles, a Class B felony.
He was sentenced to six years' imprisonment in the
Arkansas Department of Correction (ADC) and seventy-two
State filed a petition to revoke Bohanon's SIS on April
1, 2019, alleging that he had violated its terms and
conditions by committing the new offenses of possession of a
controlled substance, possession of a firearm, simultaneous
possession of firearms and drugs, and possession of drug
paraphernalia. At the revocation hearing, the arresting
officer testified that on April 19, 2018, he stopped a
vehicle driven by Randy Mangum. Because the officer detected
a strong odor of marijuana from the car, he removed the
passengers from the car and advised that he would be
conducting a search of the vehicle. The officer located a
backpack on the front floorboard of the car, which he had
observed under Bohanon's legs when Bohanon had been
seated in the front passenger seat. In the bag he found
seventy-six grams of marijuana, twelve grams of powder
cocaine, 1.661 grams of rock cocaine, eight pills of codeine,
and eight pills of cyclobenzaprine. The bag also contained a
black .44-magnum handgun, a digital scale, Bohanon's
identification card, and his Social Security card.
testified that the backpack was not his. He stated that he
had previously lost his wallet after riding in the same car
about two weeks prior to being pulled over. He also stated
that he didn't know the backpack was in the car prior to
being stopped and that he was unaware of its contents.
court found that Bohanon had violated the terms and
conditions of his SIS and sentenced him to 180 months'
incarceration in the ADC. This no-merit appeal follows.
request to withdraw on the ground that the appeal is wholly
without merit shall be accompanied by a brief, including 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. Raiford v. State,
2012 Ark.App. 414, at 2 (citing Ark. Sup. Ct. R. 4-3(k)(1);
Eads v. State, 74 Ark.App. 363, 47 S.W.3d 918
(2001); Campbell v. State, 74 Ark.App. 277, 279, 47
S.W.3d 915, 917 (2001)). The clerk of this court served
Bohanon with a copy of his counsel's brief and notified
him of his right to file a pro se statement of points for
reversal. He has not done so.
considering a no-merit brief, we must determine whether,
after a full examination of the proceedings, there is any
nonfrivolous basis for an appeal. Parmer v. State,
2017 Ark.App. 5, at 5. A no-merit brief must provide a
"full examination of the proceedings as a whole to
decide if an appeal would be wholly frivolous." Reed
v. State, 2013 Ark.App. 432, at 3. Arkansas Supreme
Court Rule 4-3(k)(1) requires that a no-merit argument
address and discuss all adverse rulings made by the circuit
court on the defendant's objections, motions, and
requests and explain "why each adverse ruling is not a
meritorious ground for reversal." Id. at 3-4.
satisfied that counsel has demonstrated that there is no
nonfrivolous argument that could serve as the basis for an
appeal regarding the sufficiency of the State's evidence
against Bohanon. The State's burden of proof in a
revocation proceeding is less than is required to convict in
a criminal trial, and evidence insufficient for a conviction
at a criminal trial may be sufficient for revocation.
Collins v. State, 2018 Ark.App. 563, at 2, 566
S.W.3d 139, 140. When the sufficiency of the evidence is
challenged on appeal from an order of revocation, the circuit
court's decision will not be reversed unless it is
clearly against a preponderance of the evidence. Id.
The appellate court defers to the circuit court's
superior position in evaluating the credibility and weight to
be given testimony. Id. Here, Bohanon was seen with
the bag under his legs, and his identification card and
Social Security card were found in the bag along with the
drugs, scale, and gun. The court was not required to believe
Bohanon's self-serving testimony that he did not know the
bag was in the car or what it contained. We therefore affirm
as to the sufficiency of the evidence against Bohanon.
next adverse rulings were the court's decisions to
sustain two hearsay objections by the State during
Bohanon's testimony. Both times, Bohanon attempted to
testify to something that someone else allegedly told him.
The State objected, and the court sustained both objections
without further discussion or argument by the defense.
Although the rules of evidence, including the hearsay rule,
are not strictly applicable in revocation proceedings, Ark.
R. Evid. 1101(b)(3); see also Felix v. State, 20
Ark.App. 44, 723 S.W.2d 839 (1987), the right to confront the
witnesses is applicable and has previously been used as a
basis for affirming a circuit court's evidentiary rulings
as to hearsay testimony in a revocation proceeding.
Gagnon v. Scarpelli, 411 U.S. 778 (1973); Jones
v. State, 31 Ark.App. 23, 25-26, 786 S.W.2d 851, 852
(1990); Goforth v. State, 27 Ark.App. 150, 767
S.W.2d 537 (1989).
counsel argues that the Confrontation Clause provides a clear
basis for affirming the court's decision to sustain both
objections. We disagree. The Sixth Amendment to the
Constitution of the United States and article 2, section 102,
of the Arkansas Constitution both give the accused
the right to confront witnesses in criminal cases. This
includes the right of the accused to see the witness, hear
testimony, and to cross-examine. Under both provisions, the
right explicitly accrues to the benefit of the accused.
Counsel has not ...