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ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-653
Opinion Delivered January 21, 2015
RICKY DALE WHITE APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-09-16]
V.
HONORABLE RALPH WILSON, JR.,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED; MOTION GRANTED
KENNETH S. HIXSON, Judge
In October 2009, appellant Ricky White pleaded guilty to being a felon in possession
of a firearm before the Crittenden County Circuit Court in exchange for a six-year
probationary term. Among the conditions of appellant’s probation were requirements that
he pay all fines, costs, and fees as directed; that he report to probation as directed; that
he promptly notify law enforcement of any change of address or employment; and that
he not move or remain out of the jurisdiction of the court unless granted permission. In
June 2011, the State filed a petition to revoke his probation, contending that appellant
violated these conditions. After a revocation hearing in April 2014, the trial court found, by a
preponderance of the evidence, that appellant inexcusably violated these conditions. In the
judgment that followed, appellant was sentenced to two years of imprisonment to be followed
by two years of suspended imposition of sentence.
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On appeal, appellant’s attorney filed a no-merit brief along with a motion to be
relieved as counsel for our consideration, asserting that there is no issue of arguable merit to
present. Counsel cites to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme
Court Rule 4-3(k) as authority to proceed on the motion to withdraw in a no-merit appeal.
A request to withdraw on the ground that the appeal is wholly without merit shall be
accompanied by a brief including an abstract and addendum; the brief shall contain an
argument section that consists of a list of all rulings adverse to the defendant made by
the circuit court with an explanation as to why each adverse ruling is not a meritorious
ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1) (2014). Appellant was provided a copy of
his attorney’s brief and motion, notifying him of his right to present pro se points for reversal,
but appellant did not file any pro se points. The State elected not to file a brief with our
court. In furtherance of the goal of protecting constitutional rights, it is both the duty of
counsel and of this court to perform a full examination of the proceedings as a whole to
decide if an appeal would be wholly frivolous. Campbell v. State, 74 Ark. App. 277, 47
S.W.3d 915 (2001).
Counsel states that the only adverse ruling to appellant was the decision to revoke his
probation. In a revocation proceeding, the State need establish only one of the bases alleged
in its petition to revoke, and the burden is by a preponderance of the evidence. Ark. Code
Ann. § 16-93-308(d) (Supp. 2013). The trial court, in order to revoke probation, must find
that the defendant inexcusably failed to comply with a condition of probation. James v. State,
2012 Ark. App. 429. Our court reviews the trial court’s findings to determine if they
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are clearly against the preponderance of the evidence, leaving any credibility calls and
determinations of the weight of evidence to the finder of fact. Rudd v. State, 76 Ark. App.
121, 61 S.W.3d 885 (2001).
Where the alleged violation involves the failure to pay ordered amounts, after the State
has introduced evidence of nonpayment, the burden shifts to the probationer to provide a
reasonable excuse for the failure to pay. Vail v. State, 2014 Ark. App. 407, 438 S.W.3d 286.
It is the probationer’s obligation to justify his failure to pay, and this shifting of the burden of
production provides an opportunity to explain the reasons for nonpayment. Scroggins v. State,
2012 Ark. App. 87, 389 S.W.3d 40. The State, however, shoulders the ultimate burden of
proving that the probationer’s failure to pay was inexcusable. Id. Because the determination
of a preponderance of the evidence turns on questions of credibility and weight to be given
testimony, we defer to the trial court’s superior position. Sherril v. State, 2014 Ark. App. 411,
439 S.W.3d 76.
After carefully examining the record and brief presented to us, we find compliance
with Rule 4-3(k) and Anders, and we hold that there is no merit to this appeal. Amy Peyton
testified on behalf of the sheriff’s office, stating that she was the employee in charge of
collecting fines, fees, and costs from probationers. Peyton testified that appellant had
made six $50 payments as required, totaling $300, toward his more than $2400 owed.
Appellant was to commence his $50 per month payments in December 2009, which he did,
but payments ceased after June 2010. A copy of the record of appellant’s assessments and
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payments was entered into evidence. This was proof of a serious and long-term delinquency
on payments due.
Appellant testified, stating that he did not pay as scheduled, despite consistently
working in a remodeling business and operating heavy equipment for a salvage yard. Appellant
said that he and his wife, who also worked, were taking care of their household and children.
Appellant acknowledged that he was obligated to report monthly to his probation officer but
did not comply. Appellant did not deny leaving West Memphis in 2010 to visit family for
a few months and then moving back to his home in Texas, all without having permission
from law enforcement to do so. In sum, appellant recognized that he made the wrong choice
to leave. He wanted another chance to comply.
At the conclusion of the hearing, the trial court found that appellant clearly violated
the conditions of his probation without reasonable excuse. The trial court specifically noted
appellant’s failure to make any $50 monthly payments on his fines and court costs after June
2010 despite having the ability to make payments by virtue of the jobs he held. The trial
court also specifically found appellant to have violated the condition that he keep law
enforcement notified of any change in address or employment and the condition that he
report monthly, finding that appellant absconded from the state without permission. All of
these findings depended on the trial court’s assessment of appellant’s credibility and the weight
to be given his testimony, in light of the undisputed failures to comply. We hold that there
was no clear error in finding that appellant inexcusably violated the conditions of his
probation. Consequently, there is no issue of arguable merit to raise on appeal.
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Affirmed; motion granted.
GLADWIN, C.J., and WHITEAKER, J., agree.
C. Brian Williams, for appellant.
No response.
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