Full Opinion

Cite as 2026 Ark. App. 431 ARKANSAS COURT OF APPEALS DIVISION II No. CR-25-638 Opinion Delivered September 23, 2026 KENNETH ABERNATHY APPELLANT APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-23-265] V. HONORABLE BRENT DILLON STATE OF ARKANSAS HOUSTON, JUDGE APPELLEE AFFIRMED; MOTION GRANTED CASEY R. TUCKER, Judge Kenneth Abernathy appeals the Saline County Circuit Court’s order revoking his probation and imposing a five-year prison sentence. This case is before us for the second time. The first time, Abernathy’s appellate counsel filed a no-merit brief and accompanying motion to withdraw pursuant to Anders v. California, 386 U.S.738 (1967), and Rule 4-3(b) of the Rules of the Arkansas Supreme Court and Court of Appeals. We remanded to supplement the record and ordered rebriefing to address whether Abernathy had pleaded guilty to the petition to revoke thereby depriving this court of jurisdiction1 and whether the circuit court’s denial of Abernathy’s request for inpatient drug rehabilitation constituted an 1 See Ark. R. App. P.–Crim. 1(a) (“Except as provided by ARCrP 24.3(b) there shall be no appeal from a plea of guilty or nolo contender.”). adverse ruling that presented a meritorious ground for appeal. Abernathy v. State, 2026 Ark. App. 326, 738 S.W.3d 349 (Abernathy I). The record has been supplemented, and appellate counsel has again filed a no-merit brief and accompanying motion to withdraw. The clerk of this court mailed Abernathy a copy of counsel’s brief and advised him of his right to file pro se points for reversal in accordance with Ark. Sup. Ct. R. 4-3(b)(2). Abernathy did not provide pro se points. Counsel has addressed this court’s questions about Abernathy’s plea and jurisdiction and the denial of Abernathy’s request for inpatient rehabilitation. We previously found that counsel sufficiently addressed the adequacy of the evidence to support the revocation and the legality of the sentence imposed. See Abernathy I, supra. We affirm the revocation and grant counsel’s motion to withdraw. The underlying facts of this case are provided in Abernathy I. Suffice it to say that Abernathy, while serving seventy-two months’ probation for second-degree domestic battery, violated the terms of his probation. The State filed a petition to revoke on the basis of Abernathy’s repeated failure to report to such an extent that he was considered to have absconded supervision; his positive tests for methamphetamine, amphetamines, and THC on two occasions; and his failure to pay $140 in supervision fees and $975 in fines and court costs. The supplemental transcript contains the hearing at which Abernathy pleaded true to the petition to revoke. The following colloquy took place at that hearing: 2 [STATE’S COUNSEL]: Your Honor, I believe Mr. Abernathy is prepared to enter a plea of true to the allegation that he absconded from supervision and has failed to make timely payments on his court ordered obligations. And he would ask the Court to set off sentencing for 90 days in order that he may have an opportunity to come back into compliance. THE COURT: Okay, is that your understanding, Mr. Gann? [DEFENSE COUNSEL]: Yes, Your Honor. THE COURT: Okay, Mr. Abernathy, to the petition to revoke your probation, how do you plead, true or not? THE DEFENDANT: True. THE COURT: True. All right, I will accept your true plea. We’ll set off sentencing until June 16, 2025. Speedy hearing time will be tolled. So same question to you, Mr. Abernathy, what are you going to do over the next 90 days? THE DEFENDANT: Comply with my conditions of my parole – probation. THE COURT: Okay, do everything you’re supposed to do and I’ll reinstate you on June 16th. If you blow it off and don’t do what you’re supposed to, then you’re looking at not having a good day on the 16th. THE DEFENDANT: Yes, sir. THE COURT: My preference is you do what you’re supposed to do and get this behind you, okay? THE DEFENDANT: Yes, sir. Thank you, sir. THE COURT: Thank you. 3 As appellate counsel discusses in his brief, Abernathy’s plea was not in the nature of a guilty plea. Abernathy did not plead guilty to violating the conditions of his probation and that he did so inexcusably. He simply pleaded that the allegations in the petition were true. This court explained the distinction between a true plea and a guilty plea in a revocation proceeding in Schreibvogel v. State: The distinction between an admission of the allegations in the revocation petition and a guilty plea is not just one of semantics. In a revocation proceeding, the circuit court must find by a preponderance of the evidence that not only did the defendant violate the conditions of probation but also that the defendant has inexcusably violated the conditions of her suspension or probation. Once the State presents evidence that the defendant violated the conditions of probation, the defendant is given the opportunity to present the defense that the violation was excusable. 2022 Ark. App. 307, at 6 (citations omitted). As explained by counsel, Abernathy pleaded true to the petition to revoke, then the circuit court gave him additional time before sentencing to come into compliance with the conditions of his probation. Abernathy failed to come into compliance and, in fact, earned another petition to revoke. At the sentencing hearing, Abernathy testified about challenges he was facing, including his mother’s death, his mental issues, and his drug addiction. In other words, he was giving justifications for his violations and seeking to be excused and given another chance. These facts are in keeping with Abernathy’s plea being one of true and not of guilt. Thus, this court has jurisdiction. The second issue of concern when this court ordered rebriefing was whether the circuit court’s denial of Abernathy’s request for inpatient rehabilitation rather than prison 4 constituted a meritorious basis for appeal. Counsel addresses this adverse ruling in rebriefing, referencing Podolak v. State, 2026 Ark. App. 18, and Arkansas Supreme Court Rule 4-3(b) for the proposition that the denial of the request for rehabilitation was an adverse ruling that counsel was required to address in his no-merit brief. Counsel also addresses the appropriateness of Abernathy’s revocation and sentence as opposed to additional time for inpatient rehabilitation, asserting that, under Arkansas Code Annotated sections 16-93- 308(g)2 and -3093 (Supp. 2025), the circuit court had discretion to impose any sentence that might have been imposed originally for Abernathy’s offense. Counsel is correct. See also Rackley v. State, 2025 Ark. App. 369, 716 S.W.3d 219 (stating that the court may impose alternative sanctions in lieu of revocation but is not required to do so or to even consider the alternative sentences). In this case, the circuit court considered Abernathy’s request for rehabilitation and exercised its discretion in denying that request and revoking Abernathy’s probation instead. As stated by counsel, the sentence imposed was within the statutory range authorized for the underlying offense. See Ark. Code Ann. §§ 5-26-304 (Repl. 2024) and 5- 4-401(a)(4). (Supp. 2025) Counsel is correct that the denial of Abernathy’s request for drug 2 Section 16-93-308(g)(1)(A) provides: “If a court revokes a defendant’s suspension of sentence or probation, the court may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he or she was found guilty.” 3 Section 16-93-309(a)(5) provides in pertinent part that upon finding that a defendant has violated the terms of his or her probation, the court may “[i]mpose any conditions that could have been imposed upon conviction of the original offense.” 5 rehabilitation rather than prison does not provide grounds for reversal, and such argument on appeal would be wholly frivolous. Having reviewed the record, the supplemental record, and the brief presented to us, we find that counsel has complied with Anders and Rule 4-3. Any appeal is without merit. Accordingly, we affirm the revocation and grant counsel’s motion to withdraw. Affirmed; motion granted. WOOD and HIXSON, JJ., agree. Bowers Law, PLLC, by: Benjamin C. Bowers, for appellant. One brief only. 6