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## ARKANS AS COURT OF APPEALS

DIVISION II No. CR-13-432 ROB E RT COLEMAN APPELLANT V.
STATE OF ARKANSAS APPELLEE Opinion Delivered January 15, 2014 APPEAL FROM TH E CRITTENDEN COU NTY CIRCU IT COU RT [NO. CR-201-1002] H ONORAB LE RALPH WILSON, JR., JU DGE REVOCATION AFFIRMED; MOTION TO WITH DRAW GRANTED
DAVI D M. GLOVER, Judge
Robert Colem an pleaded guilty t o t errorist ic t hreat ening, a Class D felony, on January 21, 2011. H e was placed on five years’ supervised probat ion. The St at e filed a pet it ion for
revocat ion of probat ion on January 8, 2013

. A ft er a hearing on March 4, 2013, t he circuit
court revoked Colem an’s probat ion on t w o specific bases. U pon revocat ion, Colem an was sent enced t o six years in t he Arkansas Depart m entof Correct ion. This appeal followed. Colem an’s counsel has file d a m o t ion t o wit hdraw on t he grounds t h at t he appeal is wholly wit hout m e rit

. 1 Counsel’s m ot ion was accom panied by a b rief referring t o everyt h ing in t he record t hat m ight arguably support an appeal, including a list of all rulings adverse t o Col e m a n m a d e by t h e t rial court on all o bject i ons, m o t ions, and request s m ade by eit h er

1 W e not e that while counsel st ill fails t o cit e A nders v. California , 3 86 U .S. 738 (1967), in his brief, he has cit e d Rule 4-3(k) of t he A rkansas Rules of t he Suprem e Court and Court of Appeals, which set s fort h t he fram ework for no-m eritappeals.Cit e as 2014 A rk . A p p . 35

part y, wit h an explanat ion as t o why each adverse ruling is n ot a m erit orious ground for reversal. The clerk of our court furnished Colem an wit h a c opy of his c ounsel’s brief and
not ified him

of his rightt o file pro se point s; Colem an has notfiled any point s. The t rial court revoked Colem an’s p robat ion on t wo bases—failure to pay probat i on fees and the fact t hat he had not lived a law-a b i d i n g life and h ad violat ed st at e laws by

com mit t i ng t he offense of first -degree t errorist ic t hreat ening. A sent ence of probat ion m ay be revoked when a t rial court finds by a preponderance of the evidence t hat t h e defendant has inexcusably failed t o comply wit h a condit i on of probat ion. D enson v. State , 2012 Ark. App. 105
. The St at e need only show t hat t he defendant com m it t e d one vi o l a t i o n t o sust ain a revocat ion. Maxwell v. State , 2010 Ark. App. 822. Great deference i s given t o t he t rial court i n det e rm ining the preponderance of t h e evidence because t he t rial judge is in a superi o r posit ion t o det erm ine t he credibility of wit nesses and t o det erm ine t he weight t o be given to
t h eir t est im ony. Denson, supra. The appellat e court s will not reverse a revocat ion unless t he decision is clearly against t he preponderance of t h e evidence. Denson , supra. Test im ony was present ed at t he revocat ion hearing by Const ance B rown, an employee of t he Arkansas Depart m ent o f Com m unity Correct i on, that Colem an owed $ 70 in probat i on fees for Decemb e r 2 0 1 2 and January 2013. Colem an did not t e st i f y. Where t he alleged violat ion is t he failure to m ake paym ent s as ordered, the St at e has t he burden of proving by

a p reponderance of t he evidence t h at t he failure t o pay was inexcusable; t hat burden does not shift from t he St at e. B oh lman v. State , 2013 Ark. App. 162. But once t he St at e has int roduced evidence of nonp ay m ent , the burden of going forward d oes shift to t h e defendant t o offer

2Cit e as 2014 A rk . A p p . 35

som e reasonable excuse for t he failure t o pay. Id

. H ere, Colem an offered no explanat ion as t o w hy he had not paid his probat i on f ees for December 2 012 and January 2013. Therefore,
t h e t rial court properly revoked his probat ion on t his basis, and because t he St at e need only show one violat ion t o support t he revocat i on o f a defendant ’s probat ion, t h ere is sufficient evidence t o supportColem an’s revocat ion of his probat ion on t his basis alone. Colem an’s counsel p roperly discusses the second basis o n which t he t rial court revoked Colem an’s probat ion—t he finding, by a pr ep o n d erance of t he evidence, that he had

com mit t e d t he offense of first -degree t errorist ic t hreat ening. H is counsel also discusses t h e only ot her adverse ruling m ade at t he hearing, an evident iary obje c t i o n concerning t he
aut hent icity o f t h e t ext s t hat f orm ed t he basis for t he t errorist ic t hreat ening. H e t hen set s fort h t he reasons why neit her of t hese adverse rulings const it ut e reversible error. Indeed, t hey
cannot const it ut e reversible error because a separat e, alt ernat i ve basis for t he revocat ion exist s, and t he St at e need only prove one violation t o sust ain t he revocat ion. From a review of t he record and t he brief present ed t o our court , Colem an’s counsel has complied wit h t he requirem ent s of Rule 4-3(k) o f t h e A rkansas Ru l e s o f t h e Suprem e Court and t he Court of Appeals. H is co u n s e l ’s m ot ion t o be relieved is grant ed and Colem an’s revocat ion is affirm ed. Revocat ion affirm ed; m ot ion t o wit hdraw grant ed. W A L M S L E Y and V A U G H T , JJ., agree. C. B rian W

i lliams , for appellant

. No response.

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