McLemore v. State

Cite as 2015 Ark. App. 376

ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-14-960

ANTHONY McLEMORE, JR. Opinion Delivered June 17, 2015
APPELLANT
APPEAL FROM THE JEFFERSON
V. COUNTY CIRCUIT COURT,
[NO. CR-11-486]

STATE OF ARKANSAS HONORABLE ROBERT H. WYATT,
APPELLEE JR., JUDGE

AFFIRMED; MOTION TO BE
RELIEVED GRANTED

RAYMOND R. ABRAMSON, Judge

This is a no-merit appeal from the second revocation of Anthony McLemore, Jr.’s

probation. In February 2012, McLemore entered a negotiated plea of nolo contendere to

residential burglary and terroristic threatening in the first degree. He was sentenced to thirty-

six months’ probation conditioned upon his compliance with the rules and regulations of

probation and ordered to pay court costs. Conditions of McLemore’s probation included not

committing an offense punishable by imprisonment; not using, selling, distributing, or

possessing any illegal controlled substance; reporting to his supervising probation officer; being

gainfully employed or enrolled as a student at all times; and paying fines and fees associated

with his probation.

On October 1, 2012, a petition to revoke was filed alleging that McLemore had tested

positive for illegal drugs on several occasions; failed to report to his required drug treatments;
Cite as 2015 Ark. App. 376

and failed to pay fees as ordered. In February 2013, McLemore entered a negotiated plea of

guilty to his probation revocation and was again sentenced to thirty-six months’ probation

conditioned upon his compliance with the rules and regulations of probation. The circuit

court also ordered McLemore to satisfy fines, fees, costs, and restitution as previously ordered

and required inpatient mandatory drug-and-alcohol treatment for ninety days.

On January 29, 2014, a second petition to revoke was filed alleging multiple violations

of the terms and conditions of his probation by testing positive for marijuana on five separate

occasions and by failing to pay his supervision fees. At the revocation hearing on June 3,

2014, the trial court found that McLemore had violated the terms and conditions of his

probation and revoked his probation. The circuit court sentenced McLemore to ten years’

imprisonment for the residential burglary and six years’ imprisonment for the terroristic

threatening in the first degree, but ordered that the sentences run concurrently in the Arkansas

Department of Correction. From that order comes this appeal.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules

of the Arkansas Supreme Court and Court of Appeals, McLemore’s counsel has filed a motion

to be relieved as appellate counsel on the grounds that the appeal is wholly without merit.

Counsel’s motion was accompanied by a brief discussing all matters in the record that might

arguably support an appeal, including a list of all rulings adverse to McLemore made by the

trial court on all objections, motions, and requests made by either party related to revocation

with an explanation as to why each adverse ruling is not a meritorious ground for reversal of

the revocation. The clerk of this court furnished McLemore with a copy of his counsel’s brief

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Cite as 2015 Ark. App. 376

and notified him of his right to file pro se points, but he has not done so. The State has not

filed a brief.

In probation-revocation proceedings, the State has the burden of proving that the

appellant violated the terms of his probation, as alleged in the revocation petition, and this

court will not reverse a trial court’s decision to revoke unless it is clearly against the

preponderance of the evidence. Stockton v. State, 2014 Ark. App. 300. Because the

determination of a preponderance of the evidence turns on questions of credibility and the

weight to be accorded testimony, we defer to the trial court’s superior position. Williams v.

State, 2014 Ark. App. 19. The State need only show that the appellant committed one

violation in order to sustain a revocation. Phillips v. State, 101 Ark. App. 190, 272 S.W.3d 123

(2008). Evidence that is insufficient for a criminal conviction may be sufficient for the

revocation of probation or suspended sentence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d

869 (2001).

In the present case, the only adverse ruling was the revocation of McLemore’s

probation. McLemore’s probation officer, Kerri Craig, testified that McLemore had tested

positive for marijuana on numerous occasions. Craig also testified that the probation office

had exhausted all the resources it had to help McLemore, and yet he continued to test

positive. For these reasons, the trial court’s decision to revoke appellant’s probation was not

clearly against the preponderance of the evidence.

From a review of the record and the brief presented to this court, appellant’s counsel

has complied with the requirements of Rule 4-3(k) of the Arkansas Rules of the Supreme

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Court and Court of Appeals. McLemore’s revocation is affirmed, and counsel’s motion to

be relieved is granted.

Affirmed; motion to be relieved granted.

GRUBER and HOOFMAN, JJ., agree.

Gary W. Potts, for appellant.

No response.