The opinion
Cite as 2020 Ark. App. 487
Reason: I attest to the ARKANSAS COURT OF APPEALS
accuracy and integrity of this
document DIVISION III
Date: 2021-07-15 12:08:00
Foxit PhantomPDF Version: No. CR-19-497
9.7.5
Opinion Delivered: October 21, 2020
TAUTIANA PORTER
APPELLANT APPEAL FROM THE CLARK
COUNTY CIRCUIT COURT
[NO. 10CR-16-80]
V.
HONORABLE BLAKE BATSON,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED; MOTION TO
WITHDRAW GRANTED
WAYMOND M. BROWN, Judge
Appellant Tautiana Porter appeals from the Clark County Circuit Court’s revocation
of her probation. Appellant’s counsel has filed a motion to withdraw and a no-merit brief
pursuant to Anders v. California,1 and Arkansas Supreme Court Rule 4–3(k), stating there
are no meritorious grounds to support an appeal. The clerk of this court mailed a certified
copy of counsel’s motion and brief to appellant, informing her of her right to file pro se
points for reversal; she has declined to do so. We previously ordered rebriefing of counsel’s
no-merit appeal due to briefing deficiencies.2 Because the deficiencies have now been cured
1
386 U.S. 738 (1967).
2
See Porter v. State, 2020 Ark. App. 343.
and the appeal is wholly without merit, we affirm the revocation of appellant’s probation
and grant counsel’s motion to withdraw.
On September 5, 2017, appellant pleaded guilty to the following offenses: engaging
in continuing gang organization or enterprise in the second degree; fleeing; and eight counts
of theft of property. As a result of her guilty plea, appellant received a sentence of ten years’
probation, the conditions of which were signed by appellant.
The State filed a petition to revoke appellant’s probation on December 14, 2017,
alleging that she had violated the following five conditions of her probation: commission of
new criminal offenses; failure to abstain from possession of controlled substances; failure to
abstain from association with convicted felons; failure to pay fines, court costs, and/or
restitution; and failure to complete community-service hours as ordered. Following a
revocation hearing, the circuit court found that the State proved by a preponderance of the
evidence that appellant had violated her probation conditions. In an order entered on
February 15, 2019, appellant was sentenced to serve a total of forty years’ incarceration with
an additional thirty-five years’ suspended imposition of sentence. This timely appeal
followed.
At the revocation hearing, Jamie Vandiver, a probation officer at Arkansas
Community Corrections, testified to discussing the conditions of probation with appellant.
A copy of appellant’s signed conditions of probation was then admitted into evidence
without objection. Officer Vandiver further testified that appellant violated the conditions
of her probation by committing new criminal offenses for which she was convicted:
associating with convicted felons, failing to pay fines, costs, and restitution as ordered, and
2
failing to complete community-service hours. A sentencing order dated October 9, 2018,
reflecting an offense date of November 20, 2017, was entered into evidence. The
sentencing order reflects that, while on probation, appellant entered negotiated pleas of
guilty to breaking or entering, theft of property (two counts), and fraudulent use of a credit
card.
In probation-revocation proceedings, the State has the burden of proving that a
probationer violated the terms of his or her probation, as alleged in the revocation petition,
by a preponderance of the evidence, and we will not reverse the circuit court’s decision to
revoke probation unless it is clearly against the preponderance of the evidence.3 The State
need only show that the appellant committed one violation in order to sustain a revocation.4
Here, given that appellant was convicted of committing multiple new criminal offenses
while on probation, which is in clear violation of the terms and conditions of her probation,
a preponderance of the evidence supports the revocation of her probation.
A request to withdraw because the appeal is wholly without merit must be
accompanied by a brief that contains a list of all rulings adverse to appellant and an
explanation as to why each is not a meritorious ground for reversal. 5 The brief must contain
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 with an
3
Dawson v. State, 2016 Ark. App. 558.
4
Id.
5
Ark. Sup. Ct. R. 4-3(k)(1).
3
explanation as to why each adverse ruling is not a meritorious ground for reversal. 6 In
deciding whether to allow counsel to withdraw from appellate representation, the test is not
whether counsel thinks the circuit court committed no reversible error but whether the
points to be raised on appeal would be wholly frivolous. 7 Pursuant to Anders,8 we are
required to determine whether the case is wholly frivolous after a full examination of all the
proceedings.9
In compliance with the directives of Anders,10 in this no-merit brief, in addition to
the preponderance of the evidence supporting the revocation itself, counsel also addressed
two issues purporting to be adverse rulings that provide no meritorious grounds for reversal:
waiver of the circuit court judge’s disqualification from presiding over the revocation
hearing and appellant’s request for a more lenient sentence.
While not necessarily an adverse ruling to appellant, out of an abundance of caution,
counsel detailed the steps the judge took in disclosing that he had been the prosecuting
attorney when the underlying conviction originated and therefore was disqualified from
presiding over the revocation hearing unless appellant elected to waive the conflict of
interest. The judge then left the room and allowed appellant to confer with her counsel
out of his presence; when he returned, appellant stated her decision to waive the
6
Id.
7
Brown v. State, 2018 Ark. App. 367, 553 S.W.3d 787.
8
Supra.
9
T.S. v. State, 2017 Ark. App. 578, 534 S.W.3d 160.
10
Supra.
4
disqualification. The record supports counsel’s account that the circuit court strictly
complied with the procedure outlined in Rule 2.11 of the Arkansas Rules of Judicial
Conduct.
Counsel also addressed appellant’s request made during the sentencing phase of the
revocation hearing that the court give her “one more chance” or that the court sentence
her to fifteen years’ incarceration as opposed to the maximum range of incarceration to
which her convictions exposed her. In revoking appellant’s probation and sentencing her
to forty years’ incarceration with an additional thirty-five years suspended, the circuit court
denied her request for another chance or to be given a lighter sentence. Counsel has
adequately explained that because appellant was sentenced within the statutory range, there
is no meritorious argument to be made.
After carefully examining the record and the brief presented to us, we hold that
counsel has complied with the requirements established by the Arkansas Supreme Court for
no-merit appeals in criminal cases and conclude that the appeal is wholly without merit.
Affirmed; motion to withdraw granted.
ABRAMSON and SWITZER, JJ., agree.
Robert M. “Robby” Golden, for appellant.
One brief only.
5