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ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-13-432
ROBERT COLEMAN Opinion Delivered January 15, 2014
APPELLANT
APPEAL FROM THE CRITTENDEN
V. COUNTY CIRCUIT COURT
[NO. CR-201-1002]
STATE OF ARKANSAS HONORABLE RALPH WILSON, JR.,
APPELLEE JUDGE
REVOCATION AFFIRMED;
MOTION TO WITHDRAW
GRANTED
DAVID M. GLOVER, Judge
Robert Coleman pleaded guilty to terroristic threatening, a Class D felony, on January
21, 2011. He was placed on five years’ supervised probation. The State filed a petition for
revocation of probation on January 8, 2013. After a hearing on March 4, 2013, the circuit
court revoked Coleman’s probation on two specific bases. Upon revocation, Coleman was
sentenced to six years in the Arkansas Department of Correction. This appeal followed.
Coleman’s counsel has filed a motion to withdraw on the grounds that the appeal is
wholly without merit.1 Counsel’s motion was accompanied by a brief referring to everything
in the record that might arguably support an appeal, including a list of all rulings adverse to
Coleman made by the trial court on all objections, motions, and requests made by either
1
We note that while counsel still fails to cite Anders v. California, 386 U.S. 738 (1967),
in his brief, he has cited Rule 4-3(k) of the Arkansas Rules of the Supreme Court and Court
of Appeals, which sets forth the framework for no-merit appeals.
Cite as 2014 Ark. App. 35
party, with an explanation as to why each adverse ruling is not a meritorious ground for
reversal. The clerk of our court furnished Coleman with a copy of his counsel’s brief and
notified him of his right to file pro se points; Coleman has not filed any points.
The trial court revoked Coleman’s probation on two bases—failure to pay probation
fees and the fact that he had not lived a law-abiding life and had violated state laws by
committing the offense of first-degree terroristic threatening. A sentence of probation may
be revoked when a trial court finds by a preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of probation. Denson v. State, 2012 Ark. App.
105. The State need only show that the defendant committed one violation to sustain a
revocation. Maxwell v. State, 2010 Ark. App. 822. Great deference is given to the trial court
in determining the preponderance of the evidence because the trial judge is in a superior
position to determine the credibility of witnesses and to determine the weight to be given to
their testimony. Denson, supra. The appellate courts will not reverse a revocation unless the
decision is clearly against the preponderance of the evidence. Denson, supra.
Testimony was presented at the revocation hearing by Constance Brown, an employee
of the Arkansas Department of Community Correction, that Coleman owed $70 in probation
fees for December 2012 and January 2013. Coleman did not testify. Where the alleged
violation is the failure to make payments as ordered, the State has the burden of proving by
a preponderance of the evidence that the failure to pay was inexcusable; that burden does not
shift from the State. Bohlman v. State, 2013 Ark. App. 162. But once the State has introduced
evidence of nonpayment, the burden of going forward does shift to the defendant to offer
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some reasonable excuse for the failure to pay. Id. Here, Coleman offered no explanation as
to why he had not paid his probation fees for December 2012 and January 2013. Therefore,
the trial court properly revoked his probation on this basis, and because the State need only
show one violation to support the revocation of a defendant’s probation, there is sufficient
evidence to support Coleman’s revocation of his probation on this basis alone.
Coleman’s counsel properly discusses the second basis on which the trial court revoked
Coleman’s probation—the finding, by a preponderance of the evidence, that he had
committed the offense of first-degree terroristic threatening. His counsel also discusses the
only other adverse ruling made at the hearing, an evidentiary objection concerning the
authenticity of the texts that formed the basis for the terroristic threatening. He then sets
forth the reasons why neither of these adverse rulings constitute reversible error. Indeed, they
cannot constitute reversible error because a separate, alternative basis for the revocation exists,
and the State need only prove one violation to sustain the revocation.
From a review of the record and the brief presented to our court, Coleman’s counsel
has complied with the requirements of Rule 4-3(k) of the Arkansas Rules of the Supreme
Court and the Court of Appeals. His counsel’s motion to be relieved is granted and
Coleman’s revocation is affirmed.
Revocation affirmed; motion to withdraw granted.
WALMSLEY and VAUGHT, JJ., agree.
C. Brian Williams, for appellant.
No response.
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