Cite as 2023 Ark. App. 14

ARKANSAS COURT OF APPEALS

DIVISION II

No. CR-22-317

JONATHAN JUSTICE

APPELLANT

V.

 STATE OF ARKANSAS

APPELLEE

Opinion Delivered January 18, 2023

APPEAL FROM THE JOHNSON 

COUNTY CIRCUIT COURT

[NO. 36CR-16-92]

HONORABLE JAMES DUNHAM,

JUDGE

AFFIRMED; MOTION TO WITHDRAW 

GRANTED

MIKE MURPHY, Judge

Appellant Jonathan Justice appeals the Johnson County Circuit Court’s revocation 

of his suspended sentence. His counsel has filed a no-merit brief and a motion to be relieved 

pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-

3(k), stating that there are no meritorious grounds to support an appeal. Justice filed pro se 

points for reversal, and the State has filed a brief in response. We affirm and grant counsel’s 

motion to be relieved.

On July 8, 2016, Justice pleaded guilty to one count each of possession of a controlled 

substance–methamphetamine (Class D felony) and possession of drug paraphernalia (Class 

D felony) in case No. 36CR-16-92 and was sentenced as a habitual offender to thirty months’

incarceration in the Arkansas Department of Correction with an additional suspended 
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imposition of sentence (SIS) for a term of seventy months, and he was ordered to pay fines 

and costs. His SIS was conditioned upon “living a law-abiding life – not committing an

offense punishable by imprisonment” and paying his financial obligations. The sentencing 

order contained an acknowledgment, signed by Justice, that he fully understood the 

conditions that were imposed on him and the consequences of his violating any of those 

conditions.

The State filed a petition to revoke Justice’s probation on January 26, 2022, alleging 

that he was delinquent $295 toward his financial obligations and that he had failed to live a 

law-abiding life in violation of his SIS terms and conditions. Specifically, the State alleged 

that Justice had committed the following crimes: possession of a firearm by certain persons 

and possession of drug paraphernalia on July 14, 2020; possession of a controlled substance 

and possession of a firearm by certain persons on October 19, 2020; failure to appear on 

September 9 and October 14, 2021; fleeing in a vehicle, endangering the welfare of a minor, 

and fleeing on foot on August 27, 2021; and possession of a firearm by certain persons on

October 15, 2021. 

The court conducted a revocation hearing on February 11, 2022. Deputy Dalton 

Miller, formerly of the Johnson County Sheriff’s Office, testified that on July 14, 2020, he 

was working with the drug task force and the Arkansas State Police to apprehend a certain 

suspect, Hope Metcalf, who was believed to be in a relationship with Justice. They went to 

Justice’s address, which Deputy Miller described as “a well-known address where she might 

be.” Justice answered the door. The state trooper who was with Deputy Miller asked Justice 
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whether Metcalf was inside, to which Justice stated no. Law enforcement left the residence 

but returned after it was discovered that Justice had an active warrant. Officers returned to 

Justice’s residence about an hour later in another attempt to make contact with Metcalf. 

Deputy Miller testified that upon returning to the residence, he heard a noise inside. 

He identified himself and asked the person to come to the door. Metcalf answered the door. 

Deputy Miller testified that Justice had left by then, and law enforcement did not make 

contact with him. Deputy Miller testified that he and several other law enforcement officers

entered the residence after placing Metcalf into custody and confirming that she had a search 

waiver on file. While they were inside the residence, they discovered several firearms “in the 

general living quarters” along with suspected drug paraphernalia used to ingest 

methamphetamine. Deputy Miller testified that the items appeared to have been in the 

residence prior to their first contact with Justice that morning. 

Deputy Miller testified that on October 19, 2020, he arrested Justice at a local store, 

having been informed that Justice was present in the store and had an active arrest warrant. 

Upon placing him under arrest, Deputy Miller found a syringe and a small bag containing 

a crystal-like substance that he suspected was methamphetamine as well as a .22-caliber bullet

in Justice’s pockets. As he walked Justice out to the vehicle, Justice advised Deputy Miller 

that he had a firearm inside the vehicle that he was using. Deputy Miller testified that the 

firearm, which was in plain view, was a .22-caliber rifle.

The State introduced, without objection, State’s exhibit 2, an “Order for Issuance of 

Arrest Warrant and Summons/Order for Surety to Appear,” issued by the court and filed 
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September 14, 2021, in which the court found that Justice had been directed to appear on 

September 9, 2021, but failed to respond or appear.

Justice testified on his own behalf and acknowledged that he had been ordered to 

appear in court on September 9, 2021, but that he was “deathly ill” with COVID. He 

explained that he went in for testing the next day at an urgent care, which he presented 

evidence of. When asked if he had made attempts to contact the court or contact his attorney 

to explain why he was not at court, he generally stated that he called and talked to the circuit 

clerk about it.

Over the objections of Justice’s counsel, the State elicited testimony from Justice that 

he was the passenger in a vehicle that was stopped on October 15, 2021. During the stop, 

Justice gave the officer a fake name and date of birth. He testified that he had no knowledge

about a backpack that was alleged to have contained a loaded .38-caliber revolver and scales. 

He further testified that on August 27, 2021, as he was turning into his mother’s driveway, 

Deputy Johnson of the Johnson County Sheriff’s Office initiated his blue lights and 

attempted to stop him. He acknowledged that he did not stop immediately and instead drove 

laps around his mother’s property. Justice then testified that he did not see a patrol vehicle

or know there was a patrol vehicle with its lights activated driving behind him. At the 

conclusion of the revocation hearing, the circuit court found that Justice had failed to live a 

law-abiding life after his release from incarceration, citing the following as support: 

The failure-to-appear finding that was made in 36CR-20-403, as well as 36CR-21-353, 

and the defendant’s conduct on July 14, 2020, as well as October 19, 2020, are 

instances of the defendant failing to lead a law-abiding life. The testimony of his giving 
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a false name to the law enforcement officer and failing to stop when—when blue 

lighted, when the officer was attempting a traffic stop on October 15, 2021, which 

seems to have been a day after the October 14 note of his failure to appear in 36CR21-353, are all instances of the defendant’s failing to lead a law-abiding life.

Further, with no objection, the court took judicial notice of the pleadings in case No.

36CR-21-353, including the order dated October 29, 2021, “indicating Justice’s 

nonappearance on the date reflected in that order in October.” 

The court found Justice in violation of the terms and conditions of his SIS and 

sentenced him to a term of eighty-four months in the ADC and an additional SIS of thirtysix months and imposed a $1500 fine. This no-merit appeal followed.

A 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 the 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, 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.
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Counsel contends that there are no issues of merit to support an appeal, and he has 

adequately explained why an appeal would be wholly frivolous. We first address whether the 

evidence was sufficient to support the revocation. To revoke a suspended sentence, the 

circuit court must find by a preponderance of the evidence that the defendant has 

inexcusably failed to comply with a condition of the suspension. Ark. Code Ann. § 16-93-

308(d) (Supp. 2021). We do not reverse a circuit court’s decision to revoke unless it is clearly 

against the preponderance of the evidence. Garrin v. State, 2022 Ark. App. 342, at 3–4, 652 

S.W.3d 608, 610. Because the burdens of proof are different, evidence that is insufficient 

for a criminal conviction may be sufficient for a revocation. Id. Since determinations of a 

preponderance of the evidence turn on questions of credibility and weight to be given 

testimony, we defer to the circuit court’s superior position. Id.

A condition of Justice’s SIS was that he live a law-abiding life by not committing an 

offense punishable by imprisonment. Deputy Miller testified to his own personal knowledge 

of the incident in which he had found what appeared to be methamphetamine and a syringe 

on Justice’s person. During that testimony, he stated that Justice admitted having a firearm 

in the vehicle. This evidence shows that that Justice had committed criminal acts that could 

have resulted in imprisonment and was thus in violation of his SIS because he was a felon 

in possession of a firearm. See Ark. Code Ann. § 5-73-103 (Supp. 2021). Leaving credibility 

determinations to the finder of fact, sufficient evidence supports the revocation. Therefore, 

we hold that there would be no merit to an appeal of the sufficiency of the evidence 

supporting the revocation.
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Additionally, counsel addresses three other adverse rulings that are not meritorious 

grounds for reversal. Relying on the analysis above, Justice was not prejudiced because 

independently sufficient evidence exists to support a finding that Justice violated a condition

of his SIS. 

Counsel also addresses the court’s denial of Justice’s objections to the State’s attempt 

during cross-examination of Justice to exceed the scope of direct examination. The court

denied Justice’s motion to exclude his testimony from being used against him at the trials of 

his new, pending criminal charges. However, while the result of the court’s unfavorable 

ruling has the potential to prejudice Justice in future hearings and trials, it did not directly 

affect this hearing. Thus, we agree with counsel that this is not a meritorious ground for 

reversal of the final decision in this case. 

Justice filed pro se points, none of which have merit. He first claims that he was 

rendered ineffective assistance of counsel at the revocation hearing. Justice alleges multiple 

bases to support this allegation, but it is well settled we will not consider an ineffectiveassistance-of-trial-counsel claim on appeal unless a circuit court considered the issue. Bartlett 

v. State, 2017 Ark. App. 679, at 1. Justice failed to raise any of his current ineffectiveassistance points to the circuit court during the revocation hearing or in any other motion. 

Consequently, his claims are not preserved for this court’s review. 

Next, Justice contends that he was “unaware” that the subpoenaed witness, Deputy 

Miller, would testify as a State’s witness and challenges the credibility of his testimony at the 

revocation hearing because unspecified “statements and physical evidence” were suppressed. 
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As with his first point, Justice never suggested to the circuit court that the State had 

unconstitutionally suppressed any evidence. This argument, too, lacks merit.

Last, Justice challenges his sentence as being illegal. His underlying crimes each 

carried a maximum of 144 months’ imprisonment pursuant to Arkansas Code Annotated

section 5-4-501(a) (Supp. 2021), but he was initially sentenced to only 30 months’

imprisonment and was found to have violated the terms of the suspended sentences that 

followed on February 11, 2022. Subtracting his 30-month prison term from the original 

possible maximum 144-month sentence, Justice correctly notes that the circuit court could 

have sentenced him up to 114 months for violating the terms and conditions of his 

suspended sentences. Thus, the 84-month prison sentence is not illegal.

Affirmed; motion to withdraw granted.

GRUBER and BARRETT, JJ., agree.

Samuel F. Eastman, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.