Charles Grunenburg v. State of Arkansas

Cite as 2021 Ark. App. 278
Elizabeth Perry
I attest to the accuracy and ARKANSAS COURT OF APPEALS
integrity of this document DIVISION II
2023.06.28 15:01:58 -05'00' No. CR-20-457
2023.001.20174
Opinion Delivered June 2, 2021
CHARLES GRUNENBURG

APPELLANT APPEAL FROM THE MILLER
COUNTY CIRCUIT COURT
V. [NO. 46CR-15-224 ]

STATE OF ARKANSAS
HONORABLE KIRK JOHNSON,
APPELLEE JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED

BART F. VIRDEN, Judge

This is a no-merit appeal filed on behalf of Charles Grunenburg following the Miller

County Circuit Court’s revocation of his suspended sentence. Grunenburg’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(k)

(2018), along with a motion to be relieved as counsel, asserting that there is no issue of

arguable merit on appeal. Under Anders, counsel seeking to withdraw from representation

must satisfy this court that he or she has thoroughly reviewed the record for appealable issues

and explain why any potential issue is frivolous for appellate purposes. This court’s review

when counsel submits an Anders brief is twofold. We ask whether counsel adequately

fulfilled the requirements and whether an independent review of the record presents any

nonfrivolous issues. Walton v. State, 94 Ark. App. 229, 231, 228 S.W.3d 524, 526 (2006).
The clerk of this court served Grunenburg with a copy of his counsel’s brief and notified

him of his right to file a pro se statement of points for reversal. He has not done so. We

affirm and grant counsel’s motion to withdraw.

On May 26, 2015, Grunenburg pled guilty to felony aggravated assault and was

sentenced to four years’ probation and ordered to pay fines, fees, and costs at a rate of sixty

dollars a month. On February 4, 2016, the State filed a petition to revoke Grunenburg’s

probation alleging that (1) Grunenburg was arrested for public intoxication, (2) he failed to

report to his probation officer and his substance-abuse counselor, (3) he did not notify his

probation officer of his address, and (4) he had not paid court-ordered costs and fees.

Grunenburg pled “true” to the allegations. On March 30, Grunenburg’s probation was

reinstated with a ninety-day jail sanction and additional costs.

On September 20, the State filed a second petition for revocation for failure to report

to his probation officer; leaving the state without permission; and failure to pay court costs,

fines, and fees. Grunenburg pled true, and on November 10, his probation was revoked and

he was sentenced to four years’ incarceration in the Arkansas Department of Correction

(ADC) with two years’ suspended imposition of sentence. Additional court costs were

assessed. Grunenburg’s suspended sentence commenced upon his release on April 7, 2017.

On October 10, 2018, the State filed a third petition to revoke. The State contended

that Grunenburg had failed to pay fines, costs, and fees and that he had picked up the

following new criminal charges:

-December 1, 2017, disorderly conduct

-May 5, 2018, public intoxication

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-July 23, disorderly conduct and public intoxication

-September 6, possession of an instrument of crime and criminal mischief

-September 19, active felony warrant for second-degree forgery

On April 21, 2020, the court held a revocation hearing at which Grunenburg did

not testify because he had another case pending. Charnell Huff, Grunenburg’s probation

officer, testified that on October 10, 2018, she received notification that between December

2017 and September 2018, Grunenburg had been arrested six times for the charges set forth

above. Huff stated that Grunenburg had not paid any of the court-ordered fines, fees, or

costs, and he owed approximately $3070. In response to this report, Huff prepared the

petition to revoke Grunenburg’s probation. Bethany Frederickson, the Miller County

deputy circuit clerk, testified that on October 21, 2019, Grunenburg paid $150 toward his

financial obligations and that he owes $3100.

In an order entered April 23, 2020, the court found that Grunenburg had violated

the terms and conditions of his probation by committing new criminal violations and failing

to pay costs, fines, and fees. The circuit court determined that Grunenburg would not

conform his behavior to the requirements of the law and revoked his suspended sentence.

Grunenburg was sentenced to two years’ imprisonment in the ADC and assessed additional

costs and fees. This no-merit appeal follows.

We are satisfied that counsel has demonstrated there is no nonfrivolous argument

that could serve as the basis for an appeal regarding the sufficiency of the State’s evidence

against Grunenburg. The State’s burden of proof in a revocation proceeding is less than is

required to convict in a criminal trial, and evidence insufficient for a conviction at a criminal

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trial may be sufficient for revocation. Collins v. State, 2018 Ark. App. 563, at 2, 566 S.W.3d

139, 140. When the sufficiency of the evidence is challenged on appeal from an order of

revocation, the circuit court’s decision will not be reversed unless it is clearly against a

preponderance of the evidence. Id. The appellate court defers to the circuit court’s superior

position in evaluating the credibility and weight to be given testimony. Id.

Here, witnesses presented undisputed evidence that Grunenburg made one $150

payment toward his court-ordered financial obligations and was arrested several times during

his probationary period. If the alleged violation involves the failure to pay court-ordered

fines and costs, the court may revoke the suspended sentence if it finds the defendant has

failed to make a good-faith effort to pay the obligation. Thompson v. State, 2009 Ark. App.

620. While the State has the burden of proving that the failure to pay is inexcusable, once

the State has introduced evidence of nonpayment, the burden shifts to the defendant to

provide a reasonable excuse for his or her failure to pay. Id. Grunenburg did not present

evidence that his failure to pay fines was excusable. Counsel argued during closing argument

that Grunenburg was “constantly” incarcerated and caught in a “vicious cycle”; however,

our review of the record does not confirm this statement. Grunenburg’s myriad arrests

demonstrate that, in fact, he was released from incarceration multiple times such that he

committed new crimes and was arrested again. Moreover, Grunenburg did not challenge

the fact that he committed new crimes while on probation. We affirm as to the sufficiency

of the evidence that Grunenburg inexcusably failed to pay his financial obligations, and he

committed new criminal violations.

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Aside from the revocation of Grunenburg’s suspended sentence, counsel addresses

the remaining four rulings adverse to Grunenburg. First, counsel addresses the court’s

rejection of Grunenburg’s counsel’s closing-argument statement during the hearing that the

court should have held the revocation hearing in 2018. As counsel asserts, the record does

not contain any objection to the delay of his revocation hearing; thus, Grunenburg waived

his objection to any time delay. We have held that the sixty-day limitation pertaining to

revocation hearings is not jurisdictional; rather, it represents the period beyond which the

hearing cannot be delayed if the defendant objects. Jones v. State, 2012 Ark. App. 69, 388

S.W.3d 503. Thus, when the defendant does not object to the timeliness of the hearing

prior to the expiration of the sixty-day period, he waives his right to insist on a timely

hearing. Lane v. State, 2015 Ark. App. 672, at 5.

Second, counsel addresses Grunenburg’s request to make payments on his financial

obligations rather than have his probation revoked. As we discussed, Grunenburg presented

no evidence that his failure to pay fines was excusable, and for the reasons set out above,

this does not present a meritorious point for reversal.

Third, Grunenburg requested a minimum sentence, which the court denied.

Arkansas Code Annotated section 16-93-308(g)(1)(A) (Supp. 2019) provides that “[i]f a

court revokes a defendant’s suspension of sentence or probation, the court may enter a

judgment of conviction and may impose any sentence on the defendant that might have

been imposed originally for the offense of which he or she was found guilty.” The caveat

to the statute is that the sentence may not exceed the applicable statutory maximum when

combined with prior imprisonment for same offense. See Easley v. State, 2017 Ark. App.

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317, at 4, 524 S.W.3d 412, 414. On May 26, 2015, Grunenburg pled guilty to aggravated

assault, a Class D felony, which is punishable by no more than six years’ incarceration. Ark.

Code Ann. § 5-4-401 (Repl. 2013). Though it is not entirely clear how much time

Grunenburg served on the original aggravated-assault charge, it is clear that he was

incarcerated less than four years; thus, the circuit court’s two-year sentence does not exceed

the statutory maximum, and the court’s refusal to impose a minimum sentence does not

present a meritorious ground for reversal.

Fourth, Grunenburg’s request to ask a question was denied. After the close of

evidence and sentencing, Grunenburg stated, “Your Honor, I have a question.” The court

denied Grunenburg’s request to ask a question, stating, “No. You should have asked to

speak during the hearing. I would’ve been happy to hear you, but the case is over at this

point.” Counsel did not object, and Grunenburg’s question was not proffered; thus, the

matter is not preserved for appeal. See Bohanon v. State, 2020 Ark. App. 22, at 5, 594 S.W.3d.

92, 96.

Counsel has addressed each of the rulings adverse to Grunenburg, and none presents

a nonfrivolous ground for an appeal.

Affirmed; motion to withdraw granted.

HARRISON, C.J., and KLAPPENBACH, J., agree.

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

One brief only.

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