DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-1374

July 5, 2001

JAMES B. DAVIS AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR98-1827]

V. HON. DAVID BOGARD, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

James B. Davis has appealed the revocation of his probation. The Pulaski County Circuit Court found that appellant violated the terms of his probation by failing to report to his probation officer and by failing to pay his probation fees. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j), appellant's counsel has filed a no-merit brief, and petitions this court to withdraw as counsel. Counsel's brief analyzes the adverse rulings that might support an appeal and demonstrates why the appeal is without merit. Appellant has filed no pro se points for reversal with this court, and the State has not filed a brief. We affirm and grant counsel's motion to be relieved.

In June 1998, appellant pleaded guilty to the Class C felony of failure to appear. He was placed on five years' probation and ordered to pay a $500 fine plus court costs byDecember 16, 1998, to report to his probation officer monthly, to pay a monthly probation fee, and to perform fifty hours of community service. On February 29, 2000, the State filed a petition to revoke appellant's probation, alleging that he had not reported to his probation officer since August 19, 1998, had failed to pay his probation fees since that date, and had failed to perform any community service work.

A public defender, Courtney Cheney, was appointed to represent appellant, and a revocation hearing was conducted on April 24, 2000. Before the hearing began, Cheney informed the court that appellant requested a continuance so that he could retain counsel at his own expense. The court asked why appellant sought different counsel. Cheney explained that appellant was originally represented by private counsel. She stated that when she spoke to him regarding her representation, he informed her that he did not want her to represent him and that he wanted her to request a continuance so that he could hire a private attorney. Appellant stated to the court that his mother had unsuccessfully attempted to get in touch with one attorney for ten days, and since that attempt was unfruitful, he wanted to hire another attorney. The trial judge denied appellant's request for a continuance and to change representation. Cheney informed the court that she was ready to proceed, and the revocation hearing began.

Larry Epperson, appellant's probation officer, was the sole witness at the hearing. He testified that he read the terms and conditions of probation to appellant, and that appellant signed and understood the rules. Epperson stated that even though appellant was informed that he was to report to Epperson once each month, he only reported twice, on July 21, 1998,and August 19, 1998. He indicated that he had not seen appellant since August 19, and he had not received any telephone calls or letters from appellant indicating why he failed to report. He further stated that he did not know how to get in touch with appellant to remind him that he failed to report or pay his fees.

Epperson further testified that appellant was ordered to pay $25 per month in supervisory fees while on probation, but he had not received any indication that appellant had paid any of those fees. He stated that appellant left his office during the August 19 visit to get a money order to pay his fees, but never returned. Epperson testified that appellant told him during this visit that he was self-employed. He stated that as of August 19, he had not made arrangements for appellant to perform any community service work.

The State rested after Epperson testified. The trial court found that appellant had violated the terms of his probation as alleged by the State in its petition to revoke. Appellant declined to testify, but made a statement before the court imposed sentence. He stated that he was changing his lifestyle, that he was working steadily for his father, and that he was attending church. He asked the court to reinstate his probation and allow him to perform his community service.

The court indicated that it did not believe appellant because his original charge was for failure to appear, and similarly here, he simply stopped reporting to his probation officer. The trial court denied appellant's request to reinstate his probation and sentenced him to serve three years in the Arkansas Department of Correction. This appeal followed.

I. Sufficiency of the Evidence

The first issue is the sufficiency of the evidence supporting the trial court's finding that appellant violated a condition of his probation. In order to revoke the terms of a suspended sentence or probation, the State must prove by a preponderance of the evidence that the defendant violated a condition of his probation. See Carruthers v. State, 59 Ark. App. 239, 240, 956 S.W.2d 201, 202 (1997). The State is required only to show that the appellant violated one of the conditions of his probation in order to revoke his suspended sentence. See Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987); Farr v. State, 6 Ark. App. 14, 636 S.W.2d 884 (1982). Whether this standard is met is determined by questions of credibility and the weight to be given to the testimony. In this regard, the we defer to the trial court's superior position. We will uphold the trial court's findings unless the findings are clearly against the preponderance of the evidence. See Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996).

We hold that appellant's challenge to the sufficiency of the evidence is not preserved for appellate review. Arkansas Rule of Criminal Procedure 33.1(b) requires that a motion for dismissal must be made at the close of all of the evidence. Further, this rule provides that a motion made at the close of the prosecution's evidence must be renewed at the close of all of the evidence. The failure to challenge the sufficiency of the evidence as proscribed by this rule waives the issue on appeal. See Ark. R. Crim. P. 33.1(c). The requirements under this rule apply in revocation proceedings. See Miner v. State, 342 Ark. 283, 28 S.W.23d 280 (2000). Here, appellant did not challenge the sufficiency of the evidence at the close of the State's evidence or at the close of all of the evidence. Therefore, he has waived thisargument on appeal.

II. Denial of Request for Continuance to Obtain Counsel

The second adverse ruling in this case was the denial of appellant's request for a continuance to obtain private counsel. Appellant requested the continuance immediately prior to the hearing. Appellant articulated no reason why his appointed counsel was unacceptable, but he stated that he needed a continuance because his mother had unsuccessfully tried for ten days to contact a specific attorney. Since she was unsuccessful, appellant sought to hire a different attorney. The trial court noted that the revocation charges and the proceedings were not complicated and appellant's counsel indicated that she was ready to proceed.

The decision to grant a continuance in order for a defendant to change attorneys rests within the sound discretion of the trial court, and will not be overturned absent an abuse of discretion. See Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994). Some of the factors to be considered include 1) whether there was adequate opportunity for the defendant to employ counsel; 2) whether other continuances have been requested and granted; 3) the length of the requested delay; 4) whether the requested delay is for legitimate reasons; 5) whether or not the motion for a continuance was timely filed; 6) whether or not the defendant contributed to the circumstances giving rise to the request for a continuance; 7) whether or not the reason for the discharge of existing counsel was solely for the purpose of obtaining a continuance; 8) whether the request is consistent with the fair, efficient and effective administration of justice; 9) and whether denying the continuance resulted inidentifiable prejudice to the defendant's case of a material or substantial nature. See Thorne v. State, 269 Ark. 556, 561, 601 S.W.2d 886, 889 (1980).

Here, appellant had not actually obtained another attorney at the time of the hearing, and did not show that the attorney he wished to hire was willing to represent him, or had even been contacted. Appellant was arrested on the revocation petition on March 20, 2000. His counsel was appointed on April 3, 2000, and his hearing was scheduled and held on April 24, 2000. He apparently waited until little more than one week before the hearing to seek other representation. He did not request a change of counsel until the day of the hearing and even then, he did not offer any specific reason for his desire to change attorneys. Further, it appears from our review of the proceedings that appellant was not prejudiced by proceeding with his appointed counsel.1 Therefore, we hold that the trial court did not abuse its discretion in denying appellant's request for a continuance in order to obtain new counsel.

III. Denial of Appellant's Request to Reinstate Probation

The final adverse ruling is the trial court's decision to sentence appellant to serve time in the Arkansas Department of Correction, as opposed to reinstating or extending his probation as appellant requested.

It is well-settled that sentencing lies within the discretion of the trial court, and that, upon revocation, the trial court is authorized to impose any sentence that it could have imposed originally. See Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995); Ark. Code Ann. § 5-4-309(f)(1)(A) (Supp. 1999). Appellant was originally placed on probation for failure to appear, which is a Class C felony punishable by a three to ten-year sentence. See Ark. Code Ann. §§ 5-54-120(b) & 5-4-401(a)(4).

The trial court noted that appellant's conduct in failing to report to his probation officer manifested a similar disregard for the conditions imposed upon him by the courtwhen he failed to appear. The court indicated that it did not believe appellant when he said that he would "do better now." Therefore, the trial judge declined to reinstate or extend his probation, and sentenced him to serve three years in prison. Appellant received the statutory minimum for his original sentence. Therefore, we find no prejudice and no abuse of discretion in the trial court's sentence.

Based on the foregoing, we affirm the trial court's order revoking appellant's probation and grant counsel's motion to be relieved.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 It does not appear that appellant was prejudiced by his counsel's failure to preserve for appellate review his challenge to the sufficiency of the evidence. We note that the undisputed evidence before the trial court was that appellant reported to his probation officer only twice, last reported eighteen months before the hearing, and failed to pay any of his fines.