Wagner v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: RITA W. GRUBER, Judge
• Citation: Wagner v. State, 2021 Ark. App. 12, No. CR-20-110 (Ark. App. Jan 13, 2021)
• Decision Date: 13 January 2021
• Docket Number: No. CR-20-110,CR-20-110
• Parties: MARK EDWARD WAGNER APPELLANT v. STATE OF ARKANSAS APPELLEE

2021 Ark. App. 12

MARK EDWARD WAGNER APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-110

ARKANSAS COURT OF APPEALS DIVISION II

January 13, 2021

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NOS. 72CR-16-1733; 72CR-16-1916; 72CR-17-2957; 72CR-17-3578; 72CR-17-3638; 72CR-19-1804]

HONORABLE JOANNA TAYLOR, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

RITA W. GRUBER, Judge

The Washington County Circuit Court revoked appellant Mark Edward Wagner's probation in multiple cases. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a no-merit brief and a motion to withdraw asserting that there is no issue of arguable merit to raise on appeal. Appellant was sent a copy of his counsel's brief and motion by mail notifying him of his right to present pro se points for reversal, but he has not filed any such points. We affirm the revocation and grant counsel's motion to withdraw.

On December 12, 2016, appellant entered negotiated guilty pleas for second-degree forgery, a Class C felony, in case No. 72CR-16-1733 and for failure to appear, a Class C felony, in case No. 72CR-16-1916. The December 15 sentencing order provides that appellant was sentenced to forty-eight months' probation in each case to be served concurrently. He was ordered to pay fines, fees, costs, and restitution and to comply with the conditions of his probation. The conditions of his probation included, in part, that he report to his supervising officer as directed; remain within the State of Arkansas unless granted permission to leave by a supervising officer; notify a supervising officer of change in address; pay monthly supervision fees as well as fines, fees and costs; and pay restitution as directed.

On September 26, 2018, appellant entered the following negotiated guilty pleas: second-degree forgery, a Class C felony, and theft by receiving, a Class A misdemeanor, in case No. 72CR-17-2957; two counts of second-degree forgery, a Class C felony, and two counts of theft by receiving, a Class A misdemeanor, in No. 72CR-17-3578; and second-degree forgery, a Class C felony, in case No. 72CR-17-3638. He was sentenced to serve sixty months' probation for the forgery charges and twelve months' probation for the theft-by-receiving charges, along with forty-five days' confinement with forty-five days of jail credit given. Each of these sentences was to run concurrently. Appellant was ordered to pay fines, fees, and costs as well as to comply with the conditions of his probation, which included that he report to his supervising officer as directed; obtain prior approval from the supervising officer before changing his place of residence or leaving Arkansas; obey all state and federal laws; and pay all court-ordered fines, fees, and restitution.

On January 17, 2019, the State filed a petition to revoke in all five cases alleging that appellant had violated the terms and conditions of his probation by failing to report to hisprobation officer in Texas, moving without notifying his probation officer, and being in arrears of court-ordered obligations. After appearing in court and pleading not guilty to the revocation petition, appellant was ordered to appear for trial on July 2 but failed to do so. An arrest warrant was issued for his failure to appear. On November 7, the day of the revocation hearing, the State filed an amended petition, adding that appellant was in violation of the conditions of his probation by committing the felony offense of failure to appear.

Appellant's probation officer, Catherine Miller, testified at the revocation hearing that appellant appeared at the intake on September 27, 2018, where he asked for his probation to be transferred to Texas. He provided an address and phone number of the Salvation Army in Tyler, Texas, where he would be staying. When Miller received the written denial of his request, she attempted to contact him at the phone number he provided but was unable to reach him. Miller said that appellant never called her or reported to her after the initial intake. She submitted a violation report on January 11, 2019, an alias arrest warrant was issued, and appellant was arrested on April 13 for the violation. Miller stated that appellant was released on April 19 but did not report to her as required by the terms of his probation. According to the records introduced, Miller stated that at the arraignment proceedings, appellant was ordered to appear on July 2 but failed to appear on that date and was arrested on July 31. Both times appellant was arrested, he had to be picked up from Texas.

Miller also testified that as part of the conditions of his probation, appellant was required to pay fines, fees, and costs in each of the cases as well as victim restitution in case Nos. 72CR-16-1916 and 72CR-16-1733. She said that appellant had made no payments.

Appellant admitted that he had failed to report; had not paid any money towards his costs, fines, fees, or restitution; had failed to appear and was arrested; but was able to make the $7500 bond after being arrested for failure to appear, and he returned to Texas after his release.

After hearing arguments from counsel, the court found that appellant had inexcusably failed to comply with the conditions of his probation by failing to report; failing to pay any fines, costs, fees, or restitution in case Nos. 72CR-16-1733 and 72CR-16-1916; failing to pay fines, fees, or costs in case Nos. 72CR-17-3638, 72CR-17-2957, or 72CR-17-3578; and failing to appear on July 2. The court found by a preponderance of the evidence that appellant had inexcusably failed to comply with reporting...