Thompson v. State

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                 ARKANSAS COURT OF APPEALS
                                       DIVISION II
                                      No. CR-16-1091



                                                  Opinion Delivered   June 21, 2017
KEITHRICK THOMPSON
                               APPELLANT          APPEAL FROM THE MILLER
                                                  COUNTY CIRCUIT COURT
V.                                                [NOS. 46CR-13-362 & 46CR-14-186]

STATE OF ARKANSAS                                 HONORABLE BRENT HALTOM,
                                  APPELLEE        JUDGE

                                                  AFFIRMED; MOTION TO
                                                  WITHDRAW GRANTED



                          N. MARK KLAPPENBACH, Judge

       Keithrick Thompson appeals from two orders of the Miller County Circuit Court

revoking his probation in two cases and sentencing him to a term of imprisonment and

suspended imposition of sentence. Pursuant to Anders v. California, 

 (1967), and

Arkansas Supreme Court Rule 4-3(k), appellant’s counsel has filed a no-merit brief and a

motion to withdraw as counsel, asserting that there is no nonfrivolous argument to be made

in support of an appeal. Appellant has filed pro se points for reversal, and the State has filed

a responsive brief.

       In July 2015, appellant pleaded guilty in separate cases to attempted residential

burglary and theft of property. He was sentenced to five years of probation in each case.

The State filed petitions to revoke in March 2016, alleging that appellant had committed

several violations of the conditions of his probation. After a revocation hearing in August
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2016, the trial court revoked appellant’s probation in both cases, specifically noting

appellant’s admission that he had failed to report as directed.

       As counsel notes, the sole adverse ruling at the hearing was the decision to revoke.

Pursuant to Arkansas Code Annotated section 16-93-308(d) (Repl. 2016), the burden on the

State in a revocation proceeding is to prove by a preponderance of the evidence that the

defendant inexcusably failed to comply with at least one condition of the probation. We will

not reverse unless the trial court’s findings are clearly against the preponderance of the

evidence, and we defer to the credibility determinations made by the trial court. Peel v. State,

.

       Appellant’s probation officer testified that appellant missed appointments in August,

October, and November 2015, and he failed to report at all after December 2015. Appellant

testified that he did not report from December 2015 through April 2016 because his mother

was in and out of the hospital, and he did not want to be incarcerated for his prior violations

and kept away from her. Counsel has adequately explained why the revocation decision is

not clearly erroneous and why there is no issue of arguable merit for appeal.

       In his pro se statement of points for reversal, appellant first argues that he received

ineffective assistance of counsel. This claim was not presented below, and it cannot be

addressed for the first time on appeal. See Nichols v. State, 

, 

(2000). Appellant next argues that the testimony of his probation officer concerning his

failure to report was not supported by documentary evidence. The trial court, however,


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found that the probation officer credibly testified and that appellant himself admitted that he

had quit reporting. We give due regard to the trial court’s superior position in determining

the credibility of witnesses and weight to be given their testimony. Humphrey v. State, 

, 

. Appellant’s remaining two arguments concern the evidence

that he failed a drug test and failed to pay probation fees. Because we are affirming the

revocation based on appellant’s failure to report, these arguments present no grounds for

reversal.

       From our review of the record and the brief presented to us, we find compliance with

Rule 4-3(k) and that the appeal is wholly without merit. Accordingly, we affirm the

revocation orders and grant counsel’s motion to withdraw.

       Affirmed; motion to withdraw granted.

       VAUGHT and BROWN, JJ., agree.

       Phillip A. McGough, P.C., by: Phillip A. McGough, for appellant.

       Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.




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