Michael Preston Carter v. State of Arkansas

Cite as 2025 Ark. App. 9
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-24-327

MICHAEL PRESTON CARTER Opinion Delivered January 15, 2025

APPELLANT
APPEAL FROM THE ASHLEY
COUNTY CIRCUIT COURT
V. [NO. 02CR-20-274]

STATE OF ARKANSAS HONORABLE ROBERT B. GIBSON III,
APPELLEE JUDGE

AFFIRMED; MOTION TO
WITHDRAW GRANTED

ROBERT J. GLADWIN, Judge

Appellant Michael Preston Carter (“Carter”) appeals the Ashley County Circuit

Court’s order revoking his suspended imposition of sentence (“SIS”) in case No. 02CR-20-

274 and sentencing him to seven years in the Arkansas Division of Correction (“ADC”) for

his possession-of-methamphetamine conviction and seven years in the ADC for his

possession-of-drug-paraphernalia conviction to run concurrently. Carter’s counsel filed a

motion to withdraw and no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967),

and Arkansas Supreme Court Rule 4-3(b) (2023), asserting that there is no merit to an

appeal. Carter was provided a copy of his counsel’s brief and motion, but he did not file any

pro se points for reversal; thus, the State did not file a reply brief.
From our review of the record and the brief presented, we hold that counsel’s brief is

in compliance with the directives of Anders and Rule 4-3(b)(1) and that there are no issues of

arguable merit to support an appeal. Accordingly, we affirm the revocation of Carter’s SIS

and grant counsel’s motion to withdraw. This is a companion case to Carter v. State, 2025

Ark. App. 10, also handed down today.

I. Background Facts

Carter negotiated a plea of guilty to the felony offense of possession of

methamphetamine and possession drug paraphernalia, both Class D felonies punishable as

a habitual offender in case No. 02CR-20-274. He agreed to a sentence of ninety-six months’

imprisonment in the ADC with an additional SIS of forty-eight months for the charge of

possession of methamphetamine, and a sentence of ninety-six months’ imprisonment in the

ADC with an additional SIS of forty-eight months for the charge of possession of drug

paraphernalia. The sentences were to run concurrently. The sentencing order was entered

on July 28, 2021.

In companion case, No. 02CR-21-76, Carter negotiated a plea of guilty to the felony

offense of possession of methamphetamine, a Class D felony punishable as a habitual

offender. Thereafter, he agreed to a sentence of ninety-six months’ imprisonment in the

ADC with an additional SIS of forty-eight months. The sentencing order was entered on

June 26, 2021.

On January 26, 2024, the State filed a revocation petition in both cases alleging that

on or about December 12, 2023, Carter willfully violated the terms and conditions of his

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probation or suspended sentence. Carter was charged with possession of methamphetamine,

a Class D felony—punishable as a habitual offender—and possession of drug paraphernalia

after having previously been convicted of a drug offense, a Class D felony.

A revocation hearing was held on February 26, 2024, with the disposition hearing

held on March 13, 2024. The State presented one witness at the hearing. Josh Pollock, a

detective with the Ashley County Sheriff’s Department, testified that he assisted Agent Tim

Sivils with probation-and-parole visits. During a home visit to Carter’s residence in Ashley

County, they saw him leave his house, and they made a traffic stop. As a part of Carter’s

parole and his conditions of SIS, he had a search waiver authorizing the officers to search

his vehicle. While testifying about what he found, Carter objected to Detective Pollock’s

testimony that the substance he found was methamphetamine because the crime lab had not

returned any results. The circuit court sustained the objection but ruled that the detective

could state what he believed the substance was. Detective Pollock stated that he believed the

substance found in the vehicle was methamphetamine and that the officers had also found

a pipe.

Detective Pollock and Agent Sivils then went to Carter’s home where he lived with

his grandmother. In his bedroom, the officers found more suspected methamphetamine and

several pipes. During the traffic stop, Carter admitted he had more methamphetamine at his

house. Detective Pollock opined that the pipes found in Carter’s room are the type used to

ingest methamphetamine.

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On cross-examination, Detective Pollock testified that Carter told him he had

methamphetamine in his pants when the officers were searching his car. He explained that

the pipes found had a burnt looking residue, noting that methamphetamine leaves a white

burned-ash residue, while marijuana leaves an ash like burned wood. Carter told the officers

that he needed help for a drug problem and remained calm and cooperative during the

searches.

Carter then testified in his own defense. He stated that he was not asking to get out

of any charges and admitted that he is a drug addict or a “junkie.” He asked the circuit court

for drug rehabilitation and noted that he had never been offered any form of rehabilitation

in the past. Moreover, he testified to having an issue with drugs since he returned home from

serving in the Army in Iraq in 2006. A copy of his DD214 was admitted into evidence,

showing that he had been to Iraq for fifteen months and received the Global War on

Terrorism Service Medal. Carter also testified that he started paperwork with the VA to

enter a twenty-month rehab.

On cross-examination, Carter stated that he was discharged from the Army because

he failed a drug test. The State questioned Carter about his previous charges for aggravated

assault, drunk driving, criminal mischief, and endangering the welfare of a minor. Carter

acknowledged that every criminal charge stemmed from drug or alcohol abuse.

At the conclusion of the hearing, the circuit court found by a preponderance of the

evidence that Carter had violated the terms and conditions of his SIS and noted that he had

seven years left on his sentence in case No. 02CR-21-76 that could be imposed. However,

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the circuit court delayed sentencing to explore Carter’s options for rehabilitation programs

with the VA and directed Agent Sivils to find out if Carter completed any programs while

he was in the ADC. On March 13, 2024, the court reconvened, and Agent Sivils testified

that a review of Carter’s file revealed that he had been in the ADC multiple times—the

majority of which were for possession of less than two grams of methamphetamine. Sivils

further testified that when Carter was released from the ADC on parole in February 2023,

Carter was asked if he wanted to receive substance-abuse treatment, and he declined.

Ultimately, the circuit court held that because Carter had previously declined treatment, no

other alternatives were available, and it imposed his sentences. The court sentenced Carter

to eighty-four months in the ADC in case No. 02CR-21-76 and two seven-year sentences—to

run concurrently—in case No. 02CR-20-274. The sentences for both cases were ordered to

be served consecutively. Both sentencing orders were filed on March 15, 2024, and Carter

timely appealed both orders. This appeal followed.

II. Standard of Review

Because this is a no-merit appeal, Rule 4-3(b) requires the argument section of the

brief to contain “a list of all rulings adverse to the defendant made by the circuit court

on all objections, motions[,] and requests . . . with an explanation as to why each . . . is

not a meritorious ground for reversal.” Ark. Sup. Ct. R. 4-3(b)(1). The requirement for

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

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on counsel’s motion to withdraw. Harvey v. State, 2022 Ark. App. 283, at 5, 646 S.W.3d

292, 295. Pursuant to Anders, we are required to determine whether the case is wholly

frivolous after a full examination of all the proceedings. Id.

III. Discussion

Carter’s counsel maintains that there are no adverse rulings in this case to be

discussed other than (1) the revocation of Carter’s SIS, and (2) the circuit court’s imposition

of sentence instead of granting Carter’s request for drug rehabilitation.

In revocation proceedings, the State has the burden of proving by a preponderance

of the evidence that a defendant violated the terms of his or her suspended sentence as

alleged in the revocation petition, and we will not reverse the circuit court’s decision to

revoke a suspended sentence unless it is clearly against the preponderance of the evidence.

Mathis v. State, 2021 Ark. App. 49, 616 S.W.3d 274. The State need only show that the

appellant committed one violation to sustain a revocation. Id.; see also Ark. Code Ann. § 16-

93-308(d) (Supp. 2023). Because the determination of a preponderance of the evidence turns

on questions of credibility and the weight to be given testimony, appellate courts defer to the

circuit court’s superior position for assessing these factors. Stewart v. State, 2021 Ark. App.

289, 624 S.W.3d 357.

In his no-merit brief, counsel accurately states that there can be no meritorious

challenge to the sufficiency of the evidence supporting the revocation. Carter admitted at

the hearing that he possessed the methamphetamine found during the searches; thus, the

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circuit court was correct in finding by a preponderance of the evidence that Carter violated

the terms and conditions of his SIS.

Next, the circuit court has multiple sentencing options after a defendant has been

found to have violated the conditions of his SIS in a revocation proceeding, including

revoking the defendant’s SIS and imposing any sentence that might have been imposed

originally for the offense of which the defendant was found guilty. Ark. Code Ann. § 16-93-

308(g)(1). Furthermore, a defendant who is sentenced within the statutory range and short

of the maximum sentence cannot establish prejudice. Montgomery v. State, 2019 Ark. App.

376, 586 S.W.3d 188. The decision to allow alternative sentencing is reviewed for an abuse

of discretion, which is a high threshold requiring that a circuit court act improvidently,

thoughtlessly, or without due consideration. Winston v. State, 2024 Ark. App. 24, 683 S.W.3d

195.

Here, the circuit court did not abuse its discretion in denying Carter’s request for

drug treatment rather than sentencing. The court considered the request—even taking

sentencing under advisement—and later made its finding that Carter’s criminal history

combined with the evidence before the court that Carter had previously declined drug

treatment left no other reasonable alternatives to sentencing.

IV. Conclusion

Accordingly, from our review of the record and the brief presented to us, we find

compliance with Rule 4-3(b); there is no issue of arguable merit to appeal. We affirm the

revocation of Carter’s SIS in case No. 02CR-20-274 and grant counsel’s motion to withdraw.

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Affirmed; motion to withdraw granted.

ABRAMSON and WOOD, JJ., agree.

Vicki Lucas, for appellant.

One brief only.

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