Joseph Evan Bennion v. State of Arkansas

Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and DIVISION III
integrity of this document No. CR-20-207
2023.06.28 11:30:54 -05'00'
2023.001.20174
JOSEPH EVAN BENNION Opinion Delivered June 2, 2021
APPELLANT
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO. 04CR-16-1944]

STATE OF ARKANSAS HONORABLE ROBIN F. GREEN,
APPELLEE JUDGE

REBRIEFING ORDERED; MOTION
TO WITHDRAW DENIED
WITHOUT PREJUDICE

KENNETH S. HIXSON, Judge

Appellant Joseph Bennion appeals after the Benton County Circuit Court revoked

his probation on the charges of possession of drug paraphernalia and two counts of failure

to appear and imposed an aggregate sentence of 312 months’ imprisonment in the Arkansas

Department of Correction. Appellant’s counsel has filed a no-merit brief and a motion to

withdraw as counsel pursuant to Arkansas Supreme Court Rule 4-3(k) (2019) 1 and Anders

v. California, 386 U.S. 738 (1967), asserting that this appeal is wholly without merit. The

motion is accompanied by an abstract and addendum of the proceedings below, alleged to

include all objections and motions decided adversely to appellant, and a brief in which

1
We note that Rule 4-3 was amended January 17, 2020. See In re Rules for Acceptance
of Records on Appeal in Electronic Format, 2020 Ark. 421 (per curiam). However, because
counsel’s brief before us was filed in this court on August 17, 2020, the previous version
was still in effect.
counsel explains why there is nothing in the record that would support an appeal. The clerk

of this court mailed a copy of counsel’s motion and brief to appellant’s last-known address

informing him of his right to file pro se points for reversal, which he has done.

Consequently, the attorney general has filed a brief in response. However, because counsel’s

no-merit brief is not in compliance with Anders and Rule 4-3(k), we order rebriefing and

deny counsel’s motion to withdraw without prejudice.

Pertinent to this appeal, appellant was charged by amended information with

possession of drug paraphernalia, a Class D felony, in violation of Arkansas Code Annotated

section 5-64-443(a)(2) (Supp. 2019) and two counts of failure to appear, a Class C felony,

in violation of Arkansas Code Annotated section 5-54-120(b) (Supp. 2019). Appellant

subsequently entered a negotiated plea of guilty, and the circuit court filed a sentencing

order on November 15, 2017, placing appellant on thirty-six months’ probation on all three

counts. Appellant signed that he understood the terms and conditions of his probation

agreement.

On May 1, 2019, the State filed a petition for revocation of probation alleging that

appellant had violated the following conditions of his probation:

1. On or about April 26th, 2019, the Defendant committed the offense of
Domestic Battery in the 2nd Degree, Class C Felony, in Benton County,
Arkansas.

2. The Defendant has failed to pay fines, fees and costs as ordered by the court.

3. The Defendant has failed to pay supervision fees.

On June 6, 2019, appellant apparently appeared in court on the petition. However,

appellant tested positive for THC, and the circuit court held him in contempt of court. The

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circuit court ordered that appellant be incarcerated for contempt of court for ten days and

appear back for a revocation hearing at a later date.

On October 16, 2019, the State filed an amended petition for revocation of

probation alleging the following two additional violations:

4. On or about November 30th, 2018, the defendant tested positive for
methamphetamine and THC.

5. On or about June 6th, 2019, the defendant tested positive for THC.

A revocation hearing was held on November 25, 2019.

At the hearing, the parties stipulated to the admission of medical records from Ozark

Community Hospital. These documents indicated that appellant had taken his grandson,

J.W., to the hospital for a broken arm, and the following statement was noted in the records:

PT PRESENTS TO ED WITH HIS GRANDPA. PT REPORTS
TEARFULLY “I RAN TO THE NEIGHBOR’S HOUSE TO CALL MY
STEP-DAD BC MY GRANDPA WAS HITTING US WITH A BELT. I
WENT HOME TO CHECK ON MY LITTLE BROTHER WHEN MY
GRANDPA PUSHED ME DOWN AND HURT MY ARM.” “I WAS
WORRIED ABOUT MY LITTLE BROTHER,” MY GRANDPA SAID
“I DIDN’T BREAK YOUR ARM” BUT WHEN HE LOOKED AT IT
HE SAID “OH SHIT, LOOK AT WHAT YOU MADE ME DO,” PT
CRYING AND VISIBLY UPSET.

Detective Braxton Handle testified that he responded to the dispatch after J.W. had

been taken to the hospital for a broken arm. Upon arriving at the hospital, Detective Handle

spoke with appellant. Detective Handle explained that he was wearing a body camera when

he spoke with appellant, and the video from that camera was played for the circuit court.

During the video, appellant told Detective Handle that his “grandson got a broken arm. He

came in the - - he came in the house and I shoved him right in the house and the front

door fell on his arm I guess somehow. It looked like it snapped.”

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Officer David Guarno, appellant’s supervising probation officer, testified appellant

had given him “trouble” during the term of his probation by testing positive for controlled

substances, failing to maintain his monetary obligations as ordered by the court, and

committing a new violent offense. Officer Guarno readily admitted that he was most

concerned about the new pending charge for battery in the second degree against appellant

and that it “was the main reason for the petition to revoke.” He testified that he tested

appellant multiple times to determine if appellant was a habitual drug user. Appellant tested

positive on November 30, 2018, for methamphetamine and THC and on June 6, 2019, for

THC. Officer Guarno further testified that although appellant had not paid his supervision

fees in the past as ordered, he had since rectified that issue and was current. Officer Guarno

additionally thought that appellant had “paid off” his court fines by the time of the

revocation hearing.

Jeff Williams, J.W.’s stepfather, testified that appellant cares for J.W. and the other

children in the household nearly every day when he and his wife are working. Mr. Williams

further explained that he was aware of and recognized a letter that J.W. had written after

the incident, which was subsequently filed with the circuit court. Although trial counsel

sought the admission of the letter during Mr. Williams’s testimony, the State objected on

the basis of hearsay and lack of foundation. Trial counsel argued that it was not being offered

for the truth of the matter asserted; however, the circuit court denied the letter’s admission

into evidence on the basis that there was a lack of foundation. Mr. Williams testified that he

did not have any concerns about appellant continuing to watch the children even after the

incident because he now knew the “full story.” He explained that his understanding was

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that J.W. was grounded from playing outside. Because J.W. failed to listen and was outside

playing, appellant “kind of patted” and “guided” J.W. inside the house when J.W. tripped

and fell over the front doorway jamb, causing J.W. to fall down and break his arm. Mr.

Williams also acknowledged that he was aware that appellant has “some drug use.”

Patricia Williams, J.W.’s mother and appellant’s daughter, testified that she did not

have any cause or concern about leaving the children in appellant’s care. She testified that

she recognized J.W.’s handwriting in the same letter previously excluded during

Mr. Williams’s testimony and that J.W. had asked to write the letter. The State objected on

the basis of hearsay to Ms. Williams’s testimony that J.W. had mentioned the letter first to

Mr. Williams, which the circuit court sustained. The State further objected to the renewed

motion to admit the letter J.W. allegedly wrote, which the circuit court ruled should be

excluded on the basis of a lack of proper foundation. Trial counsel proffered a copy of this

letter for our review on appeal. Upon further examination, Ms. Williams testified that she

did not think appellant would intentionally hurt her son and that she was aware of appellant’s

drug use. She further agreed that appellant was “very honest” but maintained that appellant

must have been “usher[ing]” J.W. into the house “in the heat of the moment” when J.W.

fell, despite the statements appellant made to Detective Handle.

After all evidence had been presented, appellant’s trial counsel orally argued the

following:

Judge, the allegation -- the first allegation that he committed, the offense of
battery in the second degree, I don’t know that the evidence today presented
today rises to battery in the second degree. I think there’s been testimony --
the understanding of what happened that day was that [J.W.] broke his arm.
Whether or not that was knowingly for purpose of sec -- battery in the second
degree for a C felony, I think that’s still up in dispute.

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I don’t know that that’s – there’s substantial evidence to find him guilty of
violating his probation as far as to count one. His probation officer testified
that but for this he would not have filed a probation revocation, so I think
I’m going to ask the Court to hold off any kind of sentencing until we can have a
finding of fact on whether or not he is guilty of committing a Class C felony because
I think it does matter if -- if it was reckless or knowingly.

A child was injured that day; however, I would point out that we haven’t had a
full trial as to that fact. And I understand we’re here for an evidentiary hearing;
however, I think there are minor differences to show whether this case was
accidental or knowingly for the purposes of deciding whether or not this is a
child abuse case or -- or something that -- just an accident that -- could have
been avoided.

(Emphasis added.) Thereafter, the circuit court stated that it was revoking appellant’s

probation on all five grounds alleged in the amended petition and sentenced appellant to

serve a total of twenty-six years’ imprisonment. This appeal followed.

Rule 4-3(k)(1) requires that the argument section of a no-merit brief contain “a list

of all rulings adverse to the defendant made by the circuit court on all objections . . . with

an explanation as to why each . . . is not a meritorious ground for reversal” and that “the

abstract and addendum of the brief shall contain . . . all rulings adverse to the defendant.”

Ark. Sup. Ct. R. 4-3(k)(1). Generally speaking, if a no-merit brief fails to address all the

adverse rulings, it will be sent back for rebriefing. Sartin v. State, 2010 Ark. 16, at 4, 362

S.W.3d 877, 880. The requirement for abstracting and 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.

Sartin, 2010 Ark. 16, at 8, 362 S.W.3d at 882. For these reasons, a no-merit brief in a

criminal case that fails to address an adverse ruling does not satisfy the requirements of Rule

4-3(k)(1), and rebriefing will be required. Id.

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Our review of the record reveals that although counsel has argued that the circuit

court’s evidentiary rulings relating to the new second-degree domestic-battery charge did

not provide a meritorious ground for reversal because appellant was also found in violation

of his probation for testing positive for controlled substances, counsel failed to address other

adverse rulings in the argument section of the no-merit brief. For example, counsel failed

to specifically list and address the revocation itself as an adverse ruling. A challenge to the

sufficiency of the evidence may be raised for the first time in an appeal of a revocation in

the absence of a motion for a directed verdict. See Barbee v. State, 346 Ark. 185, 56 S.W.3d

370 (2001). Additionally, counsel argues that there was no preserved objection regarding

sentencing. However, our review reveals that after the evidence was presented, trial counsel

asked the circuit court to “to hold off any kind of sentencing until we can have a finding of fact on

whether or not he is guilty of committing a Class C felony.” (Emphasis added.) Trial counsel went

on to explain that there had not yet been a trial on the pending second-degree domestic-

battery charge. Despite this request, the circuit court immediately thereafter found appellant

in violation and sentenced him to serve a total of twenty-six years. Yet, counsel does not

address the circuit court’s denial of trial counsel’s request to “hold off” on sentencing until

there had been a trial on the pending new charge. Due to these deficiencies, we deny

counsel’s motion to withdraw and order rebriefing.

Accordingly, we order counsel to cure these deficiencies by filing a substituted brief

within fifteen days from the date of this opinion. The deficiencies we have identified should

not be considered exhaustive, and counsel is encouraged to review Anders and Rule 4-3

regarding the requirements of a no-merit brief. We express no opinion as to whether the

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new brief should be a no-merit brief pursuant to Rule 4-3 or a brief on meritorious grounds.

If a substituted no-merit brief is filed, our clerk will forward counsel’s motion and brief to

appellant, and he will have thirty days within which to raise additional pro se points in

accordance with Rule 4-3. The State will likewise be given an opportunity to file a

responsive brief if further pro se points are made. Appellant and the State may elect to stand

on the original pro se points and responsive brief in this case. See Jester v. State, 2018 Ark.

App. 360, 553 S.W.3d 198.

Rebriefing ordered; motion to withdraw denied without prejudice.

ABRAMSON and MURPHY, JJ., agree.

Caddell Reynolds, PA, by: Josie N. Graves, for appellant.

Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.

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