FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NOS. 66CR-08-486 & 66CR-08-790] HONORABLE STEPHEN TABOR,
Burns Law Firm, PLLC, by: Meagan Burns, for appellant.
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, Judge
Dewayne Von Holt appeals the Sebastian County Circuit
Court's revocation of his suspended imposition of
sentence (SIS). In July 2008, appellant Von Holt pled guilty
to six felony offenses and was sentenced
to concurrent terms of five years in the Arkansas Department
of Correction (ADC) for breaking or entering, five years in
the ADC with an additional ten-year SIS for possession of
methamphetamine with intent to deliver, and five years in the
ADC with an additional five-year SIS for possession of drug
paraphernalia. Under the terms and conditions of the SIS,
appellant was ordered to pay restitution to the victims of
the breaking or entering and to pay a $100 fee for his public
State petitioned to revoke appellant's suspended sentence
on December 30, 2015, asserting that appellant had violated
the terms and conditions of the SIS by (1) committing new
offenses of trafficking of a controlled substance, possession
of a controlled substance with purpose to deliver, possession
of drug paraphernalia, and conspiracy to deliver
methamphetamine; and (2) failing to pay restitution and
public defender fees.
revocation hearing was held on August 24, 2016 regarding
violation of appellant's SIS. The trial court heard
testimony on appellant's charges that were the result of
a controlled buy conducted by Fort Smith Police on December
22, 2015. On that day, police officers used a confidential
informant to purchase methamphetamine at the residence of
Curtis Jones. Shortly after the confidential informant
entered Jones's residence, appellant arrived in a truck
registered in his name. Appellant, Jones, and the informant
were all inside the residence for less than ten minutes,
after which the informant returned to police with a bag of a
substance that field-tested positive for methamphetamine.
Police obtained and executed a search warrant within one hour
of the controlled buy.
the residence with the search warrant, police encountered
Jones and appellant outside, leaning against appellant's
truck and talking. The men were detained and searched.
Although Detective Napier of the Fort Smith Police Department
testified that the audio recording of the controlled buy
showed that the actual delivery occurred before appellant
entered the residence and that the only conversation was
between appellant and Jones, police discovered the $200 in
recorded bills-the "buy money"-in appellant's
pocket. During the search, police discovered and photographed
multiple bags of what would later test positive for
methamphetamine, along with a small amount of marijuana and
paraphernalia including a pipe and digital scale. The
methamphetamine, divided into bags and stuffed into an
upholstery cleaning wipes container, was found inside a pair
of rubber boots in the bed of the truck.
hearing, the trial court also heard testimony regarding
another ground for revocation. As part of the terms and
conditions of his SIS, appellant had been ordered to pay
restitution to the victims of his original
breaking-or-entering conviction along with a fee for his
public defender. The petition
asserted appellant's failure to pay these fees over the
past year as a second and independent ground for revocation.
The State presented evidence that appellant had not made a
restitution payment since July 29, 2015 and still owed over
moved for a directed verdict at the close of the testimony,
which was denied. The trial court found that appellant had
violated the terms and conditions of his SIS and sentenced
him to an aggregate term of twenty-five years in the ADC.
argues that the trial court erred in ruling that there was
sufficient evidence to show that appellant inexcusably
violated the terms and conditions of his suspended sentence.
Primarily, appellant argues that the State failed to
establish by a preponderance of the evidence a prima facie
case that appellant was trafficking methamphetamine.
second point on appeal, appellant asserts that the State did
not adequately prove that his failure to pay restitution and
public-defender fees was willful and therefore failed to prove that
appellant had violated that condition of his SIS.
revoke a suspended sentence, the State bears the burden of
proving by a preponderance of the evidence that the defendant
violated a condition of the suspended sentence. Jones v.
State, 355 Ark. 630, 633, 144 S.W.3d 254, 255 (2004);
Ark. Code Ann. § 5-4-309(d) (Supp. 2003). On appeal, a
trial court's revocation of a suspended sentence will be
affirmed unless the decision is clearly against the
preponderance of the evidence. Jones, 355 Ark. at
633, 144 S.W.3d at 255; Simington v. State, 2016
Ark.App. 514. The State's burden of proof for revocation
of a suspended sentence-preponderance of the evidence- is
lower than that required to sustain a criminal conviction.
Jones, 355 Ark. at 633, 144 S.W.3d at 255.
Therefore, evidence that is insufficient for a criminal
conviction may be sufficient for revocation of a suspended
sentence. Id., citing Bradley v. State, 347
Ark. 518, 65 S.W.3d 874 (2002). Where multiple SIS violations
are alleged, a trial court's revocation will be affirmed
if the evidence is sufficient to establish that the appellant
violated any one condition of the suspended imposition of
sentence. Simington, 2016 Ark.App. 514, at 3 (citing
Doyle v. State, 2009 Ark.App. 94, at 4, 302 S.W.3d
607, 609); Cheshire v. State, 80 Ark.App. 327, 331,
95 S.W.3d 820 (2003).
revocation hearing, the State presented multiple grounds for
revocation: Appellant had committed offenses of trafficking
of a controlled substance, possession of a controlled
substance with purpose to deliver, possession of drug
paraphernalia, conspiracy to ...