FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. CR-2014-54-1]
HONORABLE SAM POPE, JUDGE
P. Mazzanti III, for appellant.
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
MICHAEL KINARD, JUDGE
Lee Robertson appeals from the revocation of his suspended
imposition of sentence (SIS). In September 2014, appellant
pleaded guilty to delivery of methamphetamine, a Class B
felony, and was placed on five years' SIS. In July 2015,
the State filed a petition to revoke, alleging that appellant
had violated the conditions of his SIS by committing the
crime of delivery of a controlled substance on five occasions
in October and November 2014. At the conclusion of the
revocation hearing, the trial court revoked appellant's
SIS and sentenced him to twenty years' imprisonment.
Tumey of the Arkansas State Police testified that an
informant, Shundra Williams, told him that she could purchase
prescription morphine pills from appellant. Tumey testified
that he searched Williams, equipped her with an undercover
video camera, gave her drug-buy money, and dropped her off
near the meeting location. Tumey and another detective drove
by the meeting house and saw appellant in the carport.
Williams walked to the house, and the conversation she had
with appellant was recorded. Appellant is seen on the video
handing five white pills to Williams. Williams then walked
back to meet Tumey and handed over five white pills. A
forensic chemist from the state crime laboratory testified
that the pills were morphine.
testified that at the time of this controlled buy, she had
three charges for delivering drugs for which she received
probation, and she had previously served time in prison in
Wisconsin. On cross-examination, Williams said that she was
not searched before walking to meet appellant and that the
officers had no reason to search her. She denied exchanging
the pills that appellant sold her for something else before
returning to the officers.
Code Annotated section 16-93-308(d) (Supp. 2015) provides
that if a court finds by a preponderance of the evidence that
the defendant has inexcusably failed to comply with a
condition of his suspension, the court may revoke the
suspension at any time prior to the time it expires. Evidence
that is insufficient for a criminal conviction may be
sufficient for the revocation of a suspended sentence.
Sherril v. State, 2014 Ark.App. 411, 439 S.W.3d 76.
The State bears the burden of proof but need only prove that
the defendant committed one violation of the conditions.
Id. On appeal, the trial court's decision will
not be reversed unless it is clearly against the
preponderance of the evidence. Id. Because the
determination of a preponderance of the evidence turns on
questions of credibility and weight to be given testimony, we
defer to the trial court's superior position.
concedes that the video introduced into evidence
"appear[s] to show the confidential informant receiving
pills from appellant, " but he contends that it is
impossible to know if those pills were the same ones turned
over to the detectives and found to be morphine. He argues
that Williams, who admitted that she was facing charges and
had not been searched before the transaction, had ample
opportunity to discard the pills received from him and
substitute previously concealed morphine pills in their
place. As the State notes, Williams testified that the pills
appellant sold to her in the video were the ones she turned
over to the police. Giving deference to the trial court's
determination of witness credibility and the weight to be
afforded testimony, we hold that the revocation was not
clearly against the preponderance of the evidence.
also argues that the revocation proceeding was void because
his underlying sentence of SIS was illegal. Appellant relies
on Arkansas Code Annotated section 5-4-301(a)(2)(A) (Supp.
2015), which states that if it is determined pursuant to
section 5-4-502 that a defendant has previously been
convicted of two or more felonies, the court shall not
suspend imposition of sentence. When appellant was placed on SIS,
however, it had not been determined that he had previously
been convicted of two or more felonies. Although the
information filed against him in February 2014 alleged that
he had previously been convicted of more than one felony, his
September 2014 plea statement and sentencing order reflect
that he was not charged, convicted, or sentenced as a
habitual offender. Thus, section 5-4-301 did not preclude an
order of SIS.
of prior felony convictions introduced by the State at the
conclusion of the revocation hearing had no bearing on
appellant's prior sentence of SIS or the applicable
sentencing range that he was subject to upon revocation.
Because appellant was not determined to be a habitual
offender when his plea was accepted and he was placed on SIS,
he could not be sentenced as a habitual offender upon
revocation of that SIS. See Reed v. State, 2014
Ark.App. 10. Appellant's twenty-year sentence upon
revocation does not exceed the nonhabitual range for Class B
felonies, but the sentencing order erroneously reflects that
he was sentenced as a habitual offender. Accordingly, we
remand in part for entry of a corrected sentencing order.
remanded in part for corrected sentencing order.
Whiteaker and Hixson, JJ., agree.