Ball v. State

2021 Ark. App. 10

ROBERT DEAN BALL APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-57

ARKANSAS COURT OF APPEALS DIVISION III

January 13, 2021

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. 17CR-19-209]

HONORABLE GARY COTTRELL, JUDGE

REBRIEFING ORDERED; MOTION TO BE RELIEVED DENIED

N. MARK KLAPPENBACH, Judge

This is a no-merit appeal filed on behalf of appellant Robert Dean Ball following the revocation of his probation. Ball's counsel filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k) (2019), along with a motion to be relieved as counsel. We deny the motion to be relieved and order rebriefing.

A request to withdraw on the ground that an appeal is wholly without merit shall be accompanied by a brief, including an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party together with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Bohanon v. State, 2020 Ark. App. 22, 594 S.W.3d 92. In considering a no-merit brief, we must determine whether, after a full examination of the proceedings, there is any nonfrivolous basis for an appeal. Id. The test for filing a no-merit brief is not whether there is any reversible error but whether an appeal would be wholly frivolous. See Macleod v. State, 2017 Ark. App. 388. Appellate counsel has appropriately identified the adverse rulings. Appellate counsel has not, however, demonstrated that an appeal of the circuit court's decision to revoke Ball's probation would be wholly without merit, so we deny counsel's motion to withdraw and order rebriefing. See Wilson v. State, 2019 Ark. App. 7, 569 S.W.3d 340.

Ball was charged with felony possession of drug paraphernalia. On August 12, 2019, Ball appeared before the circuit court and entered a guilty plea in exchange for a three-year term of probation. On August 23, 2019, the sentencing order was filed, and it required Ball "to complete 15 days community service" and to pay approximately $1,500 in fines, fees, and costs in installments of "$65 per month begin 30 days after comm. service." On September 10, 2019, the State filed a petition to revoke alleging that as of September 9, 2019, Ball had "failed to report to complete his community service."

At the hearing conducted in November 2019, the community-service supervisor, Kevin Starr, testified that Ball showed up on August 12 to sign up for community service. Ball admitted to Starr that he would not pass a drug test, so Starr told Ball to come back to start his community service on September 3. Ball did not come back, nor did Ball answer Starr's telephone calls, so Starr "turned him in" on September 10. The circuit court revoked Ball's probation. Ball was sentenced to serve six years in prison, to resume paymentsbeginning sixty days after his release, and to complete long-term drug-and-alcohol treatment while in prison.¹ This appeal followed.

Contrary to appellate counsel's suggestion, Ball was not required to move for a directed verdict in the revocation proceeding. A challenge to the sufficiency of the evidence may be raised for the first time in an appeal of a revocation in the absence of a motion for a directed verdict or motion to dismiss. Rowton v. State, 2020 Ark. App. 174, 598 S.W.3d 522. In a revocation proceeding, the circuit court must find by a preponderance of the evidence that the...