Hester v. State , 2017 Ark. App. 403 ( 2017 )

Cite as 2017 Ark. App. 403
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-16-1109
JERMAINE C. HESTER Opinion Delivered: June 21, 2017
APPELLANT
APPEAL FROM THE CRITTENDEN
V. COUNTY CIRCUIT COURT
[NO. 18CR-14-183]
STATE OF ARKANSAS
APPELLEE HONORABLE RANDY PHILHOURS,
JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court’s order revoking his probation. Appellant’s
counsel has filed a no-merit brief and a motion to withdraw pursuant to Anders v. California 1
and Arkansas Supreme Court Rule 4-3(k), 2 stating that there are no meritorious grounds to
support an appeal. The clerk mailed a certified copy of counsel’s motion and brief to
appellant, informing him of his right to file pro se points for reversal. Appellant has failed to
file pro se points for reversal. We affirm appellant’s revocation and grant counsel’s motion
to withdraw.
On March 11, 2014, appellant was charged by information, in case No. CR-2014-
183, with four counts of residential burglary, a Class “B” felony; one count of theft of
1
386 U.S. 738 (1967).
2
(2011).
Cite as 2017 Ark. App. 403
property, a Class “B” felony; one count of theft of property, a Class “C” felony; one count
of theft of property, a Class “D” felony; and one count of theft of property, a Class “A”
misdemeanor. On May 6, 2015, appellant entered into a negotiated plea of one count of
residential burglary and one count of theft of property, a Class “B” felony, and was sentenced
to five years’ probation on the burglary charge and five years’ suspended imposition of
sentence (SIS) on the theft charge. Appellant signed “Conditions of Suspended Sentence or
Probation,” wherein he agreed, among other things, to “. . . pay all fines, court costs, and
restitution . . . live a law-abiding life . . . not use marijuana . . . have no firearm in his
possession . . . [and] cooperate with Probation Officer and report to him/her as directed[.]”
On March 31, 2016, the appellee filed a petition to revoke appellant’s probation.
The petition alleged that appellant had violated his probation by (1) failing to pay fines, costs
and fees as directed; (2) failing to report to probation as directed; (3) failing to notify the
sheriff and probation of his current address and employment; (4) failing to live a law-abiding
life, be of good behavior, and not violate any state, federal, or municipal law; (5) testing
positive for marijuana on July 23, 2015, and admitting to smoking marijuana on February
12, 2016; and (6) committing the new offense of possession of firearm on school property
in case number CR-2016-265 on March 17, 2016.
At appellant’s revocation hearing, the county collector testified that appellant was
ordered to begin making fifty-dollar payments on June 4, 2015, but had not made a single
payment and had not called her to discuss his court-ordered payments. Appellant’s probation
officer testified that she went over the conditions of appellant’s probation with him; those
conditions required that he report to his probation officer as directed. She testified that
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appellant knew her phone number and that he should call if he was having a problem making
an appointment; he never called.
Appellant’s probation officer stated that appellant’s reporting had been “kind of
rocky[,]” noting that he had initially stopped reporting on August 20, 2015, only to report
again on October 13 and 23, 2015, after which he again stopped reporting. 3 His reporting
continued in this manner of missing appointments and then showing for one or two
appointments only to miss appointments again. Appellant failed to report to a drug
counseling assessment; 4 failed to report to two appointments with a drug counselor, though
“he’d asked from [sic] help with marijuana use”; failed to report to his probation officer “at
least five times”; tested positive for marijuana on May 6 and July 23, 2015; admitted
marijuana use a week prior to reporting on February 12, 2016; and was arrested for
possession of a handgun by a minor, which he admitted having. 5
After his probation officer’s testimony, appellant’s hearing was continued for two
days; he failed to appear at the opening of the hearing. 6 Appellant’s counsel advised the
circuit court that he had spoken with appellant on the day before trial and had the
3
He also reported in January 2016.
4
He reported thirty minutes late for a February 16, 2016 drug counseling assessment
but was not seen because he had missed more than half of the hour allotted for the
assessment.
5
Appellant reported the arrest to his probation officer. The probation officer did not
put the arrest in her violation report though she did not remember why she failed to do so;
appellant had claimed he was “trying to protect, so to speak[.]”
6
Appellant arrived at the hearing while testimony was being given.
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understanding that appellant would be in court; he knew of no calamity having befallen
appellant. He asked for a continuance; the motion was denied.
Officer Kevin Davon Jordon, Sr., a school resource officer with the West Memphis
Police Department, testified to being notified by a high school assistant principal that he had
overheard a student questioning appellant about a gun in his backpack. Appellant ended up
in the assistant principal’s office, where Jordon made contact with him; asked to search his
backpack, to which appellant consented; and found a .380 handgun inside the backpack
along with appellant’s books. 7 Appellant initially denied knowing the gun was in the
backpack, but eventually admitted that he had brought the gun because another student had
threatened him; Jordon “never found anything to prove [appellant] was telling the truth.”
Detective Martin Gill, also of the West Memphis Police Department, testified
regarding his interview of appellant, a video of which was played in open court. Gill stated
that appellant told him the event happened “down the street from the school, which is a
well-travelled area” yet Gill never found any witnesses for the alleged event.
After Gill’s testimony, appellant moved for a directed verdict asserting that there was
no proof of delivery or receipt of the probation officer’s appointment cards to support failure
to report to probation as directed; there was no testimony to support failure to notify
probation of his current address and employment; there was no evidence that appellant used
marijuana during the term of his supervision to support a violation for using an illegal drug;
and there was no evidence to establish that appellant purposely, knowingly, or recklessly
7
There was no magazine or rounds in the gun or the backpack.
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Cite as 2017 Ark. App. 403
failed to live a law-abiding life—though he admitted that the statute is silent to the mental
state required. 8 The motion for directed verdict was denied on all counts except failure to
provide proof of employment.
Thereafter, appellant testified to paying his fines by mail on the day prior to giving
his testimony. He denied having left the address he gave when he was first put on probation.
He asserted that he did not know the gun was in his backpack—in corroboration with his
mother’s testimony that she hid the gun there without appellant’s knowledge—but stated
that he told police he did know about the gun because he was afraid of getting his mother
in trouble. He admitted knowing his probation officer’s number and that he was to call if
he could not report, and admitted that he only called once out of the five times he failed to
report. Finally, he stated that he makes $400 a week working with his father.
Following appellant’s testimony, the circuit court found that it “[could not] believe
anything” appellant told it and found that he had violated his probation by failing to pay
anything on his fines, failing to report regularly, testing positive for the use of marijuana,
being in possession of a firearm on school property, and being a felon in possession of a
firearm. Appellant was sentenced to four years’ imprisonment in the Arkansas Department
of Correction. This timely appeal followed.
In compliance with Anders and Rule 4-3(k), counsel ordered the entire record and
found that after a conscientious review of the record, there are no issues of arguable merit
8
His directed verdict motion did not include appellant’s failure to pay fines, costs,
and fees, which he “[didn’t] believe” would be a “proper motion at [that] time.” He also
did not think it proper to move for directed verdict on appellant’s admission to using
marijuana on February 12, 2016.
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for appeal. Counsel’s brief adequately covered each action that was adverse to appellant
below, including the revocation. After carefully examining the record and the brief
presented to us, we find that counsel has complied with the requirements established by the
Arkansas Supreme Court for no-merit appeals in criminal cases and conclude that the appeal
is wholly without merit.
Affirmed; motion to withdraw granted.
HARRISON and VAUGHT, JJ., agree.
Tyler C. Ginn, for appellant.
No response.
6