Myers v. State

2020 Ark. App. 460

608 S.W.3d 635

Marlon Tramain MYERS, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-699

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: October 7, 2020

King Law Group PLLC, Fort Smith, by: Natalie S. King, for appellant.

One brief only.

BART F. VIRDEN, Judge

Appellant Marlon Tramain Myers appeals the Sebastian County Circuit Court's revocation of his probation. We affirm.

Myers pleaded guilty in 2009 to the crime of first-degree domestic battery and was sentenced to six years' imprisonment in the Arkansas Department of Correction (ADC) followed by fourteen years' suspended imposition of sentence. Additionally, Myers was ordered to pay fees and costs related to the public defender. Myers was released on parole from the ADC in June 2011.

In October 2013, Myers was arrested and charged with driving while intoxicated, careless driving, driving with a suspended license, and refusal to submit to chemical testing. The State filed a petition to revoke, and after a hearing, the circuit court revoked Myers's suspended sentence and sentenced him to serve four years in the ADC plus an additional ten years' suspended imposition of sentence. Myers was paroled in January 2015.

In March 2018, Myers was charged with failure to appear, to which he pleaded guilty, and he entered a plea of no contest to the new charge of aggravated assault on a family member. Myers was sentenced to two years' imprisonment in the ADC with an additional four years' suspended imposition of sentence to run concurrently with his existing sentences, and he was ordered to have no contact with Shameer Flanigan. Myers was ordered to pay court costs. In July 2018, Myers was released from the ADC.

In April 2019, the State filed a petition to revoke Myers's probation alleging that Myers violated the no-contact order and failed to pay fines. Myers filed a motion to dismiss the petition to revoke, and the circuit court held a hearing on the matter. Myers testified that he had been arrested on May 25, 2019, on the petition to revoke and other misdemeanor charges, and his attorney advised him to refuse the State's offer regarding the misdemeanor charges until he went to trial on the petition to revoke. Myers explained that he was incarcerated for over sixty days without a hearing on the petition to revoke; thus, the petition should be dismissed. The circuit court denied the motion, finding that Myers was in jail for the district court charges as well as the petition to revoke; therefore, the sixty-day period did not begin until he was no longer being held on the district court charges.

Immediately after the hearing on the motion to dismiss, the circuit court held a revocation hearing. The State entered a payment ledger into evidence showing that Myers was $815 in arrears on fines, fees, and costs. The only witness, Officer Michael Coder of the Fort Smith Police Department, testified that in January, he was dispatched to investigate a possible stabbing. When Coder arrived at the scene, he found Myers receiving medical attention for neck and back wounds. Myers stated that Shameer Flanigan had stabbed him. Flanigan lived nearby, and Coder followed a blood trail to her home. Coder explained that Flanigan told him that she heard a knock at the door, and when she opened it, Myers was there and began to choke her. She stabbed him in self-defense.

Myers moved to dismiss the petition arguing that the State had not proved he contacted Flanigan in violation of the terms of his probation. The court then asked Myers, "[W]hat about the non-payment of $815?" Myers explained that he was making payments on his arrearage and would like the court to allow him to continue. The court denied the motion to dismiss. Myers requested that he be allowed to cross-examine Officer Coder, and the court denied his request.

The circuit court found that the State had proved Myers violated the terms of his suspended sentence. The court revoked Myers's probation, and he was sentenced to ten years' imprisonment in the ADC followed by an additional four years' suspended...