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## ARKANS AS COURT OF APPEALS

DIVISION IV No. CR-13-436

ANDREW LEE B I SH OP APPELLANT V.
STATE OF ARKANSAS APPELLEE Opinion Delivered January 15, 2014 APPEAL FROM TH E CRITTENDEN COU NTY CIRCU IT COU RT [NO. CR-10-95] H ONORAB LE RALPH WILSON, JR. JU DGE AFFIRMED; MOTION GRANTED

KENNETH S. HI XSON, Judge

In Fe bruary 2010, appellant Andrew Lee B ishop pleaded guilt y t o possession of pseudoephedrine w it h t he int e nt t o m anufact ure m et ham phet am i n e b e f o re t he Crit t enden Count y Circuit Court in exchange for a t wo-year probat ionary term
. Am ong t h e c ondit ions of appellant ’s probat ion were requirem ent s t hat he pay all fines, cost s, and fees as direct ed; that he report to probat i on as direct ed; and that he not violat e any st at e, federal or m unicipal law. In Novem ber 2 010, t h e S t at e filed a pet i t ion t o revo k e his probat ion, cont ending that appellant violat ed t hese condit i ons am o ng t he nine violat ions it alleged. The pet it i on alleged specifically t hat appellant com m it ted third-degree b at t ery in B ent on Count y in 2010. Aft er

a re v o c a t i on hearing in March 2013, t he t rial court found, by a preponderance of t he evidence, t hat appellant was in violat ion of his condit ions, specifically fi n d i n g t h a t he

com mit t e d a crim inal act , evidenced by a cert i fied c opy of a M arch 2011 B ent on Cou n t yCit e as 2014 A rk . A p p . 41

Circuit Court judgm e nt and c om mit m ent order, CR2010-1508-1, for t hird-degree bat t ery

com mit t e d in Oct ober 2010. A j udgm ent was ent ered upon revocat i on, sent e ncing appellant
t o t wo years in t h e A r kansas Depart m ent of Correct ion t o be f ollowed by f

our years o f suspended im p osit ion of sent ence. Appellant ’s at t orney f

i led a t im ely not ice of appeal from t h e j u dgm ent upon revocat i on and ordered t h e ent i re trial-court record. Subsequent ly, appellant ’s at t o rney filed a no-m erit brief pursuant to Ark. Sup. Ct

. R. 4-3(k) (2013), along w it h a m o t i o n t o b e relieved as counsel, assert ing t hat t here is no issue of arguable m erit t o present o n appeal. 1 A r equest to wit hdraw on t he ground t hat t he appeal is wholly wit hout m erit shall be accom panied by a brief including an abst ract and addendum

. Ark. Sup. Ct

. R. 4-3(k)(1). The brief shall cont ain

an argum ent sect ion t hat consist s of a list of all r ulings adverse t o t he defendant m ade by t he circuit court wit h an explanat ion as t o why each adverse ruling is not a m erit orious ground for reversal. Ark. Sup. Ct

. R. 4-3(k) (1). Counsel’s brief recit es the ent i r et y of Rule 4- 3(k)(1). Alt hough appellant was sent a co p y o f h i s at t orney’s brief and m ot ion by m ail,
not ifying appellant of his r ight t o present p ro se p oint s for revers a l , appellant did not file any pro se point s. The St at e elect e d not t o file a brief wit h our court
. In furt h erance of t he goal of prot e ct ing Const it ut i onal right s, it is b o t h t h e d u t y of counsel and of this court to perform a full e xam inat ion of t he proceedings as a whole t o decide if an appea l would

1 A lt hough appellant ’s counsel does not cit e t o Anders v. California , 386 U .S. 738 (1967), h e does cit e Rule 4-3(k), t he appropriat e st andard of review, and he provides an adequat e discussion of each adverse ruling. See Alls v. State , 2013 Ark. App. 713. 2Cit e as 2014 A rk . A p p . 41

be wholly frivolous. Campbell v. State , 74 Ark. App. 277, 47 S.W.3d 915 (2001). Aft er a full

exam i n at io n u n d er t he proper st andards, we hold t hat counsel provided a com pliant “no

m erit ” brief dem onst rat ing t hat an appeal would be wholly wit hout m erit , and furt her, t hat counsel’s m ot ion t o be relieved should be grant e d

. The prim ary adverse ruling was t he decision t o revoke probat ion. The burden upon
t h e St at e in a revocat ion proceeding is t o prove by a p reponderance of t he evidence t hat t he defendant inexcusably failed t o com ply wit h at least one c ondit ion of his p robat ion. Amos v. State , 2011 Ark. App. 638. Ark. Code Ann. § 16-93-308(d) (Supp. 2011). This court will
not reverse unless t he t rial court ’s findings are clearly against t h e p reponderance of t he evidence, and our court

defers t o t he credibilit

y det e r m inat ions m ade by t he t rial court and
t h e weight it assigns t o t he evidence. Gosset t v . St a te , 87 Ark. App. 317, 191 S.W.3d 548 (2004). Once t he St at e i n t r o d u ces evidence of non-paym ent , t he d efendant t hen has t he burden of g o i ng forward wit h som e reasonable excuse f or his failure t o p ay as ordered. Sanders v. State , 2012 Ark. App. 697. The St at e need only p rove one violat ion in order to support t he revocat i on of probat ion. Id. T h e evidence at t he r evocat ion hearing i n cluded t h e t est im ony of a sheriff’s depart m e n t

em ployee in charge o f collect ion of fines and c ost s. The em ployee t est ified t hat appellant paid
not hing t o ward his $ 1895 i n cost s and fines, alt hough his m ont hly paym ent s were set at $ 75
t o begin in April 2010. A ledger sheet maint ained by t h e sheriff’s o ffice w as int roduced int o evidence w it hout object i on. Appella n t t e s t i fied t hat he was able t o work but he had not found a job, prim arily due t o his felony convict i on.

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The cert ified copy of t he B ent on Count y Circuit Court judgm ent and com m it m ent order was ent ered int o evidence wit hout object ion. The St at e also ent ered int o evidence a
cert ified copy of a let t er from t he D e p a r t m ent of Com m unit y Correct i on Inst it u t i onal Release Services, dat ed January 14, 2013, st at ing t hat appellant was paroled from p rison on his B ent on Count y case. A p pellant adm it t e d t hat he was convict ed o n several crim inal count s, explaining
t h at he had argued and fought wit h his child’s m ot her, which led t o t he crim inal charges in lat ter 2010. Appellant adm it t ed to ot her violat ions as alleged in t he pet it ion, offering lit t le to

no e x cuse for each one. As not ed by counsel, t hough, credibilit y is a m at t er left t o t he t rial
court in revocat ion proceedings. B ased u pon t he foregoing, t he t rial judge’s decision t o revoke his probat ion was not clearly erroneous or clearly against t he prepo n d e r a n ce of the evidence. Counsel correct ly
st at es that , according t o A rk. Code Ann. § 16-93-308(d), t he St at e need only prove one of it s alleged violat ions by a preponderance o f the evidence in order t o support a find i n g of
revocat ion. No issue of arguable m erit could be raised on appeal t o reverse t hat finding. Appellant ’s counsel not es t hat t here was no ot her adverse ruling. H aving considered t his under t he proper st andards required f or n o-m erit appeals, we affirm t he revocat i on of appellant ’s probat ion and grant counsel’s m ot ion t o be relieved. Affirm ed; m o tion grant ed. W Y N N E and B R O W N , JJ., agree. C. B rian W

i lliams , for appellant

. No response.

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