Jack Nelson Jones Professional Association
July 9-15, 2018
Quinton Rashad Brown v. State of Arkansas, 1018 Ark. App. 367, June 20, 2018
This appeal comes from the Lafayette County Circuit Court, Honorable Carlton D. Jones, presiding. The Lafayette County Circuit Court revoked Quinton Rashad Brown’s probation and sentenced him to five years’ imprisonment. Brown’s attorney filed a no-merit brief, along with a motion to withdraw as counsel, asserting that there was no issue of arguable merit for an appeal. The Court affirmed the revocation and granted counsel’s motion to withdraw.
In January 2016, Brown was charged with two counts of delivery of methamphetamine or cocaine. He pled guilty to both charges and received two sentences of five years’ probation to run concurrently. The conditions of Brown’s probation were doable: he was not to commit a criminal offense punishable by imprisonment, and he was not to “use, sell, distribute, or possess any controlled substance, or associate with any person who is participating in or known to participate in the illegal use, sale, distribution or possession of controlled substances.” He was also to report to his probation officer, pay probation-supervision fees, and pay his financial obligations. In other words, Brown was to “keep his nose clean” by not committing a crime, avoiding dope and dope dealers, and report to his probation officer. In May 2017, the State petitioned to revoke Brown’s probation in both cases, alleging that he had failed to report to his probation officer, failed to pay his financial obligations as ordered by the court, and failed to pay probation-supervision fees. (Perhaps Brown felt that since he didn’t meet with his supervisor, he shouldn’t have to pay supervision fees.) Nonetheless, Brown again entered a guilty plea, and his probation was reinstated.
Less than three months later, in August 2017, the State again petitioned to revoke Brown’s probation, alleging he had committed the offense of breaking or entering, committed the offense of commercial burglary acting in concert with two other convicted felons, failed to pay court-ordered financial obligations, and failed to pay probation supervision fees. Before this petition to revoke could even be heard, the State amended it, alleging that Brown had also committed the offenses of possession of marijuana with intent to deliver, fleeing, driving on a suspended driver’s license, and reckless driving.
The circuit court convened a revocation hearing on September 22, 2017. Jason Tomlin, the chief of police of the Lewisville Police Department, testified that he knew Brown personally, having arrested him several times in the past. Tomlin explained that on July 30, 2017, he saw Brown driving his car accompanied by a passenger who was in the right front seat. Chief Tomlin knew Brown’s driver’s license was suspended, and he got behind Brown and attempted to initiate a traffic stop. Instead of stopping for the police, Brown sped away with Chief Tomlin in pursuit. While following Brown, Tomlin saw Brown make motions with his left hand and then literally jumped from the driver’s seat into the back seat of the vehicle. The passenger then moved over to the driver’s seat and stopped the car. Tomlin approached Brown’s car, smelled a strong odor of marijuana in the car, and observed a bag containing a large amount of green, leafy substance weighing 1.86 ounces. Brown was arrested for possession of marijuana with intent to deliver, reckless driving, fleeing, driving on a suspended license, improper window tint, and having no insurance.
Brown’s probation officer then testified that Brown had reviewed and signed the conditions of his probation, stated and signed that he understood his obligations, but that Brown had consistently failed to abide by them, and the State had again petitioned to revoke Brown’s probation.
Brown did not testify, but Trey Hill, the passenger in Brown’s car on July 30, testified in Brown’s defense that he had been driving that day, and that he and Brown had not switched seats. He also testified that he owned the marijuana that was found in the car. He agreed that the car was Brown’s.
In its oral ruling, the circuit court noted that another court had found probable cause to charge Brown with possession of a controlled substance with purpose to deliver. That case was pending at the time of the revocation hearing. Based upon the probable cause finding, and the testimony presented at the hearing, the circuit court found, by a preponderance of the evidence, that Brown had violated the law and was therefore in violation of his probation yet again. To his surprise, Brown was sentence to two terms of five years’ imprisonment, to run concurrently. Brown appealed his sentences.
On appeal of a revocation, the Court reviews whether the circuit court’s findings are clearly against the preponderance of the evidence. This is a lesser degree of proof than that required to support a criminal conviction (beyond a reasonable doubt). Evidence insufficient to support a criminal conviction may be sufficient to support a revocation of probation. Proof of just one violation of the terms and conditions of release on probation is sufficient to support revocation.
Brown’s attorney argued that there were no meritorious grounds for appeal of his revocation of probation and the imposition of the five years sentence and asked to withdraw as counsel. It is not widely recognized that a defense attorney, once attached to a client, cannot easily break the ties that bind in a criminal matter. The attorney must accompany his request to withdraw with a brief that lists all rulings adverse to the defendant (appellant), and an explanation as to why each ruling is not a meritorious ground for reversal. In deciding whether to allow counsel to withdraw from representing Brown, 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.
The only adverse ruling the circuit court made was the revocation of Brown’s probation, and the State needed only to prove one violation of the terms of Brown’s probation. The circuit court based its decision on testimony that Brown had possessed marijuana and had been cited for fleeing and driving on a suspended license. Although Brown’s witness testified that the blame was all his, the appellate courts defer to the circuit court’s credibility determinations. Here, the circuit court believed the Chief’s testimony, and that of the probation officer, and found Brown violated his probation, and this time sentenced Brown to prison.
The Court found the decision of the circuit court was supported by the evidence, affirmed the revocation, and granted counsel’s motion to withdraw.