                                 Cite as 2017 Ark. App. 54


                 ARKANSAS COURT OF APPEALS
                                       DIVISION III
                                         CR-15-786
                                       No.


                                                  OPINION DELIVERED: FEBRUARY 1, 2017
LACRESHA PUGH-HAYES
                                APPELLANT APPEAL FROM THE BRADLEY
                                          COUNTY CIRCUIT COURT
                                          [NO. 06CR-05-82-1]
V.
                                                  HONORABLE SAM POPE, JUDGE
STATE OF ARKANSAS                          AFFIRMED; MOTION TO
                                  APPELLEE WITHDRAW GRANTED




                             ROBERT J. GLADWIN, Judge

        This is the second time this no-merit appeal is before us. On June 22, 2016, we

 ordered rebriefing. Pugh-Hayes v. State, 2016 Ark. App. 328. Pugh-Hayes has filed a new

 brief that includes in the substituted addendum the motion for rehearing, the motion for

 release on bond for emergency consideration and accompanying affidavit, a document

 entitled “Findings and Order” filed by the trial court on July 24, 2015, and the request for

 hearing and accompanying affidavit in support.

        Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) (2016) of the

 Rules of the Arkansas Supreme Court and Court of Appeals, Pugh-Hayes’s counsel has filed

 a motion to withdraw, arguing that an appeal in this case is wholly without merit. This type

 of motion must be accompanied by an abstract and brief referring to everything in the record

 that might arguably support an appeal, including all motions, objections, and requests
                                Cite as 2017 Ark. App. 54

decided adversely to Pugh-Hayes, and a statement of reasons why none of those rulings

would be a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k).

       We have been informed via a memo dated December 12, 2016, from the office of

the clerk of this court, that on September 28, 2016, Pugh-Hayes was provided with a copy

of her counsel’s brief and motion to withdraw on appeal and was notified of her right under

Rule 4-3(k) (2016) of the Rules of the Arkansas Supreme Court and Court of Appeals to

file a list of points on appeal. This was sent to Pugh-Hayes’s last-known address at the

Arkansas Department of Correction (ADC), and the green card certified mail return receipt

was signed for and returned by Amanda Barnett on September 29, 2016. ADC returned the

package to the clerk’s office labeled “Paroled” and “Unable to Forward” on October 26,

2016. Pugh-Hayes’s counsel was contacted, and she stated that she had no further contact

information for Pugh-Hayes. A second attempt to mail the packet was made on November

1, 2016. The green card was signed for and returned by Donna Jones on November 2, 2016.

The packet was again returned to the clerk’s office on November 14, 2016, marked

“Paroled” and “Unable to Forward,” and Pugh-Hayes’s counsel confirms no additional

contact information has been provided for Pugh-Hayes at this time.

                                     I. Facts and Procedural History


       On September 11, 2006, Pugh-Hayes appeared before the Bradley County Circuit

Court and entered a negotiated plea of guilty to violation of the Arkansas Hot Check Law.

She was sentenced to a total of ten years’ probation, five supervised and five unsupervised.

       On or about March 6, 2014, Pugh-Hayes committed the offense of third-degree

domestic battery. On August 25, 2014, Pugh-Hayes again appeared before the Bradley


                                              2
                                  Cite as 2017 Ark. App. 54

County Circuit Court and entered a plea of guilty to that charge. Her sentencing was

deferred for twelve months, to end on August 25, 2015, in exchange for her strict

compliance with the ordered conditions.

       Previously, the State had filed a petition for revocation on September 4, 2012,

alleging that Pugh-Hayes was in violation because she failed to report as required; failed to

pay supervision fees; failed to pay court costs; and failed to pay restitution. An order to show

cause was issued that day, but on August 28, 2014, the trial court rescinded the order to

show cause and allowed Pugh-Hayes to continue making payments.

       The State filed new petitions to revoke with amended violation reports on February

12, 2015, April 2, 2015, and May 22, 2015. The hearing on July 20, 2015, was the final

hearing held regarding allegations of violating her probation terms. At that time, the trial

court found that Pugh-Hayes was in violation of the probation terms, revoked her

probation, and sentenced her to six years in the ADC.

       Following the revocation, Pugh-Hayes filed the following pleadings: (1) motion for

rehearing on revocation of probation and/or imposition of suspended sentence; (2) motion

for release on bond for emergency consideration with affidavit in support; (3) motion for

discovery; and (4) request for hearing with affidavit in support. The certificates of service

for these motions were not complete, and the record is void of any proof as to whether any

of these motions were served as required. Thirty days after filing these motions, the trial

court had not made a ruling, and the motions were deemed denied. Pugh-Hayes filed her

timely notice of appeal on August 14, 2015.




                                               3
                                 Cite as 2017 Ark. App. 54

                                   II. Standard of Review

       The standard of review in this matter is whether a preponderance of the evidence

supports the trial court’s finding. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536

(2004). After a thorough review of the records addressing the petition for revocation,

counsel found no objections that were raised by Pugh-Hayes during the hearing, and no

adverse rulings in the record provide a meritorious basis for this appeal. The adverse rulings

were the trial court’s revocation order of July 20, 2015, a request by Pugh-Hayes for

additional time to surrender herself into custody, and two postconviction motions. The trial

court revoked Pugh-Hayes’s probation, but neither granted nor denied her request for more

time to surrender or her other motions. Counsel treats those motions as if they were denied

for purposes of this brief.

                              III. Discussion of Adverse Rulings

                  A. July 20, 2015 Revocation of Pugh-Hayes’s Probation

       The petition on which the revocation was based was amended several times during

this case. The last amended violation report for revocation alleged seven violations. In

support of those allegations, the State requested that the trial court take judicial notice of

the following evidence: (1) judgment and disposition order, which included the restitution

ledger; (2) conditions of probation; (3) guilty-plea statement from September 11, 2006; (4)

findings and order from March 1, 2013; and (5) findings and order from March 25, 2013.

There were no objections from Pugh-Hayes.

       The State also elicited the testimony of Stephanie Harris, who worked for Arkansas

Community Corrections Probation and Parole, Monticello Office. Ms. Harris testified to

each alleged violation and explained the evidence to support each violation. According to
                                              4
                                 Cite as 2017 Ark. App. 54

Ms. Harris, officers made home visits on January 27, 2015, March 19, 2015, and May 11,

2015, and the officers were advised that Pugh-Hayes did not reside there. Pugh-Hayes failed

to report a change of residence and was found to not reside at her last-known address. Pugh-

Hayes neither objected nor controverted that evidence.

       Ms. Harris also testified that Pugh-Hayes had tested positive for marijuana on

October 9, 2014, December 4, 2014, January 8, 2015, and February 19, 2015. On cross-

examination, Pugh-Hayes admitted having used marijuana because it helped her feel better.

       Ms. Harris testified that Pugh-Hayes left the state of Arkansas without a written travel

pass. Ms. Harris explained that she learned that Pugh-Hayes was present in Greeneville,

Mississippi, at Harlow’s Casino and that she observed Pugh-Hayes there. Ms. Harris stated

that during the time she observed Pugh-Hayes at the casino, Pugh-Hayes was drinking an

alcoholic beverage. Further, she explained that when she spoke to Pugh-Hayes, Pugh-Hayes

admitted that she was consuming alcohol. On cross-examination, Pugh-Hayes admitted

having been at the casino but denied that she had been consuming alcohol.

       Pugh-Hayes neither objected nor controverted additional evidence presented by Ms.

Harris regarding the alleged failure-to-report violation. She also failed to controvert the

testimony of her supervising officer, Adam Barnes, regarding her employment and

community-service issues. Finally, Pugh-Hayes was unable to refute evidence presented by

Caril Susanne Eck, who works with the Bradley County Sheriff’s Office to maintain ledgers

for individuals who have accounts there based on what they have been ordered to pay. Ms.

Eck testified that the opening balance for Pugh-Hayes in this case in 2012 was $1,834.31

plus court costs and that Pugh-Hayes had made six payments toward her account. On the

day of the hearing, the balance due was more than the initial balance; it was $1,924.31.
                                              5
                                  Cite as 2017 Ark. App. 54

Pugh-Hayes testified that she had worked in Houston and made some payments; however,

Pugh-Hayes produced no evidence to refute the outstanding balance or to prove that she

was in compliance.

       Considering the evidence and testimony presented, we agree with counsel that Pugh-

Hayes raised no arguable claims that would support a successful appeal. The State’s petition

was based on seven violations of Pugh-Hayes’s probation, and Pugh-Hayes openly admitted

committing two violations. Namely, she admitted having been present at the casino in

Mississippi and that she smoked marijuana, which admissions support the revocation. See

Ingram v. State, 2009 Ark. App. 729, 363 S.W.3d 6 (holding that there was no need for the

State to introduce further evidence when the appellant admits to alleged violations).

Furthermore, only one violation is necessary for the revocation of probation or a suspended

sentence. Id.

       Here, in addition to Pugh-Hayes admitting two violations, there were no objections

to the evidence presented. The State bears the burden of proof and need prove only one

violation of a probationary conviction in order for this court to affirm. See Haley v. State, 96

Ark. App. 256, 240 S.W.3d 615 (2006). Because Pugh-Hayes corroborated the State’s proof

on two violations, the revocation is affirmed.

                  B. Request for Two Weeks to Surrender Into Custody

       At the end of the hearing and following sentencing, Pugh-Hayes requested two

weeks to prepare herself for incarceration. The trial court did not rule against her but

explained that she could discuss it with the “high elected sheriff” and that the trial court

would consider his recommendation. We agree with counsel that this ruling, even if

considered an adverse ruling, does not provide a basis for a meritorious appeal.
                                               6
                                     Cite as 2017 Ark. App. 54

                   C. Motion for Rehearing and Request for Rehearing

       Following the revocation, Pugh-Hayes filed two motions, a motion for rehearing on

revocation of probation and/or imposition of suspended sentence and a request for

rehearing. Both motions are, in effect, motions for a new trial, which Pugh-Hayes filed on

July 22, 2015. Pugh-Hayes asserted several bases to support a new trial, but counsel urges

that both motions are fatally flawed because they do not appear to actually have ever been

served. Pursuant to Arkansas Rule of Criminal Procedure 33.3(a) (2016), the motions must

be served on the “. . . representative of the prosecuting party.” The entire record is void of

evidence as to whether they were served. If service occurred, there are no filed responses in

the record, and the trial court never ruled on them. After thirty days, both motions were

deemed denied and, as such, are adverse rulings by operation of law. 1

       Although it appears that neither motion was ever served, if the merits of those

motions were to be considered as a basis for appealing this conviction, there would be no

evidence to support a finding that the trial court abused its discretion by failing to hold a

new trial. Pursuant to Brooks v. State, 76 Ark. App. 164, 61 S.W.3d 916 (2001), Pugh-Hayes

would need to set out new evidence in her motion that was not available during the initial

trial. Pugh-Hayes does not point to any new evidence; however, she seems to have been

seeking a second chance to argue using the same evidence. Pugh-Hayes claims that several

factors would justify a new trial.

       First, she claims a constitutional violation whereby the trial court lacked jurisdiction

to impose a suspended sentence and probation against her. Pugh-Hayes is mistaken; the trial


       1
        The record does not reflect the filing of an amended notice of appeal regarding
these motions.
                                            7
                                      Cite as 2017 Ark. App. 54

court did not impose both a suspended sentence and probation. Therefore, counsel submits

that her argument that the trial court is prohibited from doing so does not apply to her if

that would indeed be a constitutional violation. Pugh-Hayes’s sentencing order clearly

designates that the sentence is for probation. Again, in the postconviction motions, she

alleges no new evidence regarding this issue; this sentencing order and its alleged flaws

existed at the time of the trial.

       Second, Pugh-Hayes states that she should not have been convicted for infractions

committed during her unsupervised-probation period. Again, counsel claims that she is

mistaken. The conditions of probation do not support this claim. The conditions of

probation clearly outline prohibited behavior; but, they do not support her claim that the

prohibited acts are allowed regarding this issue. The conditions of probation and any alleged

flaws existed at the time of trial.

       Third, Pugh-Hayes claims that she cannot be sent to prison based on her inability to

pay. Pugh-Hayes’s trial counsel raised the issue of her inability to pay. Pugh-Hayes raises no

new evidence regarding her inability to pay that was not available to her and her counsel

before and during the trial.

       Fourth, Pugh-Hayes made a claim of ineffective assistance of counsel. This does not

support reversal of her conviction either. Even if her trial counsel were found to be

ineffective in the representation, it is Pugh-Hayes’s own testimony that corroborates the

State’s evidence. The State needed to prove a violation of only one condition of Pugh-

Hayes’s probation. Pugh-Hayes admitted two violations through her own testimony. The

decision to testify was solely Pugh-Hayes’s to make. Namely, Pugh-Hayes admitted that she

used marijuana and that she traveled outside the state to a casino in Mississippi. It is her
                                                 8
                                   Cite as 2017 Ark. App. 54

testimony, not the representation by her trial counsel, that solidified the State’s case. Since

there is only a deemed-denied ruling on this issue of ineffective assistance of counsel and no

written order, the ruling is insufficient to raise a direct appeal. See Dodson v. State, 326 Ark.

637, 934 S.W.2d 198 (1996).

                D. Motion for Release on Bond for Emergency Consideration

          The motion for release on bond for emergency consideration was not ruled on and

was deemed denied after thirty days had passed. In that motion, Pugh-Hayes asked to be

released on bond and claimed emergency circumstances to support her release. Although

this is, in effect, an adverse ruling, we hold that it fails to provide a basis for a meritorious

appeal.

          The test for filing a no-merit brief is not whether there is any reversible error, but

whether an appeal would be wholly frivolous. Gaines v. State, 2014 Ark. App. 651. Based

on our review of the record for potential error pursuant to Anders, supra, and the

requirements of Rule 4-3(k), we hold that Pugh-Hayes’s appeal is wholly without merit.

Therefore, we grant counsel’s motion to withdraw and affirm the trial court’s revocation.

          Affirmed; motion to withdraw granted.

          GRUBER, C.J., and BROWN, J., agree.

          Margo D. Warner, for appellant.

          No response.




                                                9
