Skaggs v. State

2023 Ark. App. 325

670 S.W.3d 811

Carl SKAGGS, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-481

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered May 31, 2023

Samuel F. Eastman, Austin, for appellant.

Leslie Rutledge, Att'y Gen., by: David L. Eanes, Jr., Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

This is a no-merit appeal filed on behalf of appellant Carl Skaggs following the Franklin County Circuit Court's revocation of his suspended imposition of sentence (SIS). Skaggs's counsel filed a timely notice of appeal, followed by a no-merit brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(b) (2022), along with a motion to be relieved as counsel, asserting that there is no issue of arguable merit for an appeal. The motion is accompanied by statements of facts of the proceedings below as well as pleadings and transcript records alleged to include all objections and motions decided adversely to Skaggs and briefs in which counsel explains why there is nothing in the record that would support an appeal in this case.

The clerk of this court sent copies of counsel's motions and briefs to Skaggs, informing him that he had the right to file pro se points for reversal. Skaggs has submitted pro se points¹ for reversal pursuant to Arkansas Supreme Court Rule 4-3(b)(2) ; accordingly, the State has filed a response brief in accordance with Arkansas Supreme Court Rule 4-3(b)(3) that applies to both appeals. We affirm the revocation and grant counsel's motion to withdraw.

I. Facts and Procedural History

In this case, Skaggs pleaded guilty in 2019 to two Class D felonies—possession of a controlled substance (methamphetamine) and possession of drug paraphernalia—in Franklin County Circuit Court case No. 4OCR-19-12. As to each count, he was sentenced to three years in the Arkansas Division of Correction (ADC) with an additional three-year SIS and ordered to pay fines and costs. A condition of his SIS was that he "not commit a criminal offense punishable by incarceration." Skaggs signed an acknowledgment of the general conditions of his SIS.

On December 8, 2021, the State filed a petition to revoke Skaggs's SIS in the Franklin County case as well as his probation in Johnson County Circuit Court case No. 36CR-19-100, the latter case being the subject of a related, but separate, appeal. See also Skaggs v. State , No. CR-22-483, 2023 WL 3729604, Appellant's Br. 5, 15–16 (Ark. App. Sept. 9, 2022). The petition alleged that

Skaggs had violated the terms and conditions of his SIS in both cases on April 19, 2021, when he was pulled over and found to be in possession of methamphetamine. Skaggs was served the bench warrant on December 13.

Skaggs waived venue in Johnson County case No. 36CR-19-100, and the revocation hearing was conducted in the Franklin County Circuit Court on May 5, 2022. The State introduced the sentencing orders, terms and conditions of Skaggs's SIS, and crime-lab report as exhibits, which were stipulated to by Skaggs.

The State presented testimony and evidence that, in the course of a traffic stop on April 19, 2021, Skaggs was arrested due to an outstanding warrant. Methamphetamine was found concealed inside the console of Skaggs's truck during the search incident to his arrest. The arresting officer, Skyler McElroy of the Arkansas State Police, testified that Skaggs and his girlfriend, Andreana Perkins, who was a passenger and who was also was arrested, both made statements indicating they were aware of a Twix candy container containing methamphetamine and paraphernalia for its use hidden inside the console. During the revocation hearing, however, Skaggs and Perkins each testified that the methamphetamine hidden inside the console belonged to Perkins, and both denied that Skaggs was aware she had hidden her drugs in his truck. Perkins acknowledged that she was charged with, and pleaded guilty to, possession of a controlled substance with the purpose to deliver arising from the methamphetamine discovered during the traffic stop.

Felix Jackson with Arkansas Community Correction testified that he supervised Skaggs during his parole; he was released from parole on April 4, 2022. Officer Jackson

testified regarding Skaggs's other SIS violations while on parole, which included eight violations related to controlled substances; Skaggs also failed to report a change of residence; and he failed to pay supervision fees. Officer Jackson explained that, rather than being based on positive drug tests, most of the controlled-substance violations were based on Skaggs's admitted use during scheduled appointments for drug tests. He acknowledged that Skaggs was sanctioned for some of those parole violations.

During his own testimony, Skaggs claimed that, at the time of the April 19, 2021 traffic stop, he was not aware of the methamphetamine hidden in his truck, but he admitted that he told Officer McElroy at the scene: "Well, if it's in a Twix can, it's all mine." He claimed that he did this because he did not see any point in both he and Perkins going to jail. Skaggs acknowledged that he tested positive for a controlled substance while on parole, although, at the time, he protested that "it could have been something I ate like poppy seeds or something like that, or, I mean, there's quite a few things that does false positive."

During his testimony, Skaggs expressed his frustration with an early drug-test appointment taking hours out of his day, his alleged difficulty providing a sample for a urinalysis test, and the parole sanctions arising from a positive test result. Skaggs then explained how he preempted subsequent tests by self-reporting "dirty for everything" and signing an admission of the parole violation. He acknowledged his decision to lie to Officer Jackson by reporting that he was "hot" because "it was easier to go in and put my name on for a hot UA [urinalysis], whether I was clean or not, and get through the system [and] [i]t was—it worked." Skaggs admitted that he lied to Officer Jackson "quite often." He admitted

he was aware that Perkins possessed paraphernalia for methamphetamine use and asserted that she was a "recovering addict" who had a relapse. Skaggs also admitted smoking marijuana on more than one occasion.

Following Skaggs's testimony, he proffered a statement from his sister, Laverne Wilson, without objection.

Having considered the testimony and the evidence, the trial court revoked Skaggs's SIS in both the Franklin County and Johnson County cases. The trial court concluded that, "whether you believe [Skaggs's] testimony, or the officer, or [Skaggs's girlfriend], in any scenario, [Skaggs] committed multiple violations of his suspended imposition of sentence." The trial court found that the violations included Skaggs's commission of criminal offenses through the possession of controlled substances, "both on April 19, 2021, and at other times when he tested positive, and when he used marijuana."

The trial court also found that Skaggs had violated condition number two of his SIS by "using controlled substances and associating with persons who were using controlled substances, or being present with persons, like his girlfriend, who were using or possessing controlled substances." The trial court further found that Skaggs had violated condition number five by associating with persons convicted of a crime or who were engaging in criminal activities. Consistent with Skaggs's admission during his testimony, the trial court also found Skaggs had lied to his parole officer on multiple occasions.

The trial court determined, and counsel agreed, that Skaggs was subject to a remaining sentence of three years as to each of his three convictions due to the fact that all

were Class D felonies subject to a maximum six-year sentence and because Skaggs had previously been sentenced to three years on each conviction.

The State recommended that sentence plus a $5,000 fine, arguing that "the defense theory was disingenuous, not consistent with the overall evidence presented, not consistent with [Skaggs's] criminal history, [sic] and admission to parole officer." The State further asserted that Skaggs and Perkins "attempted to perpetrate a fraud upon this Court."

Skaggs's counsel recommended three years on each count to run concurrently, but the trial court imposed a sentence of thirty-six months in the ADC on each count, to run consecutively, and a $500 fine. The sentencing order was filed on May 9, and Skaggs filed a timely notice of appeal on May 23.

II. Discussion

Because this is a no-merit appeal, Rule 4-3(b) requires the argument section of the brief to contain "a list of all rulings adverse to the defendant made by the circuit court on all objections, motions[,] and requests ... with an explanation as to why each ... is not a meritorious ground for reversal." The requirement for briefing every adverse ruling ensures that the due-process concerns in Anders are met and prevents the unnecessary risk of a deficient Anders brief resulting in an incorrect decision on counsel's motion to withdraw. Harvey v. State , 2022 Ark. App. 283, at 5, 646 S.W.3d 292, 295. Pursuant to Anders , we are required to determine whether the case is wholly frivolous after a full examination of all the proceedings. Id.

A. Adverse Rulings by the Trial Court

Skaggs's counsel maintains that there are no adverse rulings in this case to be discussed other than (1) the revocation of Skaggs's SIS, and (2) the trial court's order that his sentences in the ADC run consecutively.

1. Sufficiency of the evidence supporting the revocation of Skaggs's SIS

In revocation proceedings, the State has the burden of proving by a preponderance of the evidence that a defendant violated the terms of his or her suspended sentence as alleged in the revocation petition, and we will not reverse the trial court's decision to revoke a suspended sentence unless it is clearly against the...