APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT. NO. 17CR-12-72 II. HONORABLE MICHAEL MEDLOCK, JUDGE.
ORDER REVOKING SIS REVERSED; JANUARY 29, 2013, SENTENCING ORDER REINSTATED ASMODIFIED.
Lisa-Marie Norris, for appellant.
Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.
RITA W. GRUBER, Judge. KINARD and BROWN, JJ., agree.
RITA W. GRUBER, Judge
Appellant Jamie Reyes pleaded guilty in January 2013 to second-degree sexual assault and two counts of failure to appear. The court entered a sentencing order on January 29, 2013, sentencing appellant to concurrent six-year terms of imprisonment on the failure-toappear convictions and to ten years' suspended imposition of sentence (SIS) on the conviction for second-degree sexual assault, to run consecutively to the two concurrent sentences of imprisonment. One of the conditions of the SIS was that appellant enroll in and complete the Reduction of Sexual Victimization Program (RSVP), which is a course of treatment for sexual offenders incarcerated in the Arkansas Department of Correction. On December 11, 2013, the State filed a petition to revoke appellant's suspension, alleging that he had failed to enroll in and complete the RSVP as ordered. The trial court revoked appellant's suspended sentence and sentenced him to eight years' imprisonment plus twelve years' SIS. On appeal, appellant argues that the trial court erred in revoking his SIS for failure to complete the RSVP. We reverse the trial court's order revoking appellant's SIS and reinstate the January 29, 2013, sentencing order as modified herein.
A trial court may revoke a defendant's suspension at any time prior to the expiration of the period of suspension if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension. Ark. Code Ann. § 16-93-308(d) (Supp. 2013). This court will not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence. Owens v. State, 2009 Ark.App. 876, at 6, 372 S.W.3d 415, 419. On appeal, appellant argues that the evidence was insufficient to prove that he " inexcusably" failed to comply with a condition of his suspension as required for revocation under Ark. Code Ann. § 16-93-308(d). " Forgivable, pardonable, and excusable behavior" does not justify a probation revocation. Schubert v. State, 2013 Ark.App. 698, at 4.
The parties do not dispute the facts. Robert Parker, the mental-health administrator for the Arkansas Department of Correction, testified for the State, and appellant testified for the defense. Both confirmed that a program-referral form requesting that appellant be enrolled in the RSVP was completed during appellant's intake process at the ADC in February 2013. According to Mr. Parker, this automatically placed appellant on the waiting list for the program. He stated that the waiting list at the time of the hearing had 1500 inmates. He also testified that it would be difficult for someone with a six-year sentence to get into the RSVP before they were released. Mr. Parker did not know the average wait time to get into the RSVP, but he confirmed that appellant had been on the waiting list from the time he began his incarceration.
Documents introduced into evidence also established that appellant wrote a note to the ADC mental-health services that was received on June 4, 2013, explaining that he needed to be enrolled in the RSVP " ASAP." The RSVP program administrator sent a response to appellant stating that no one " gets started ASAP" and that he must " wait his turn." The administrator asked for appellant's " TE" date (transfer eligibility) and asked him whether he was sure that he wanted to enroll in the RSVP. Appellant responded on June 16, 2013, explaining that his TE date was January 14, 2014, and that he needed to get into RSVP " ASAP" if he could. The RSVP program analyst responded by letter to appellant on July 8, 2013, stating that his name was on the RSVP waiting
list, that the list was ranked by TE dates, and that he did not need to do anything more. On November 26, 2013, appellant was released early from the ADC pursuant to the prison-overcrowding Emergency Powers Act 418 of 1987. At the time he was released, he had not begun the RSVP.
Appellant testified that he was not told that he could remain in the ADC to complete the RSVP rather than be released under the Emergency Powers Act. The State argued in closing that appellant had the opportunity to stay at ADC, enroll in the program, and complete it, which he chose not to do, but the State did not introduce any testimony or other evidence to support this argument regarding an inmate's options when ordered released under this Act. Although not a condition of his SIS or parole, appellant testified that his parole officer recommended that he complete a sexual-behavior course with a counselor, which he was doing at the time of the hearing. The court found that a condition of appellant's SIS was completion of the RSVP, that appellant failed to complete the RSVP, and that the only way to complete the RSVP was to be ...