OLIVER W. HART III APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE MILLER COUNTY CIRCUIT COURT [NO'S. 46CR-02-162,
46CR-02-570, AND 46CR-03-627] HONORABLE KIRK JOHNSON, JUDGE
Phillip A. McGough, P.A., by: Phillip A. McGough, for
Rutledge, Att'y Gen., by: Ashley Priest, Ass't
Att'y Gen., for appellee.
Abramson and Harrison, JJ., agree.
W. GRUBER, Chief Judge
revocation case has returned to us after correction and
supplementation of the record and rebriefing. Hart v.
State, 2017 Ark.App. 130 (Hart I). As detailed
in our opinion in Hart I, appellant's probation
was revoked in three cases after the circuit court found that
he had violated all three conditions alleged in the
State's petition to revoke: committed a drug offense;
inexcusably failed to pay court-ordered financial
obligations; and possessed a controlled substance, possessed
drug paraphernalia, and tested positive for controlled
substances on four occasions during March, June, and July
2014. On appeal, appellant argues that the evidence was
insufficient to revoke his probation and that the circuit
court erred in denying his motion to dismiss the revocation
petition for failure to provide him a preliminary hearing. We
affirm the orders of the circuit court.
pleaded guilty in the three cases on appeal on April 7, 2009.
All three cases involved manufacturing, delivering, or
possessing a controlled substance and possession of drug
paraphernalia. In December 2013, appellant requested that
supervision of his probation be transferred to Texas, which
was done. In connection with the transfer, he signed an
application to transfer, which included his statement that he
would comply with the terms and conditions of supervision
placed on him in Arkansas. One of the conditions of his
probation was that he make monthly court-ordered payments to
the Miller County Circuit Clerk.
August 27, 2014, appellant was arrested in Texarkana, Texas,
for possession of drug paraphernalia and possession of a
controlled substance. His Texas supervisor informed
appellant's Arkansas probation officer of this arrest,
and petitions for revocation were filed in the three cases
alleging that appellant had failed to pay court-ordered
obligations and had committed an offense against the laws of
this or any other state. After the Texas supervisor provided
information to the Arkansas probation officer regarding
appellant's four failed drug screens, the petitions were
amended to include the allegation that appellant had
possessed, used, sold, or distributed a controlled substance,
narcotic drug, or drug paraphernalia. The court subsequently
revoked appellant's probation, finding that he had
violated all three of the conditions.
Sufficiency of the Evidence
first point on appeal is that the evidence was insufficient
to revoke his probation on any of the violations alleged in
the petition and found by the circuit court. A circuit court
may revoke a defendant's probation at any time prior to
the expiration of the period of probation if it finds by a
preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of his
probation. Ark. Code Ann. § 16-93-308(d) (Repl. 2016).
When the sufficiency of the evidence is challenged on appeal
from an order of revocation, this court will not reverse the
circuit 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.
Because the determination of a preponderance of the evidence
turns on questions of credibility and the weight to be given
testimony, we defer to the circuit court's superior
position. Richardson v. State, 85 Ark.App. 347, 349,
157 S.W.3d 536, 538 (2004). Finally, the State need only show
that the appellant committed one violation in order to
sustain a revocation. Id.
first to the evidence regarding appellant's failure to
pay court-ordered fines. When the alleged violation is a
failure to make payments as ordered, it is the State's
burden to prove that the failure to pay was inexcusable; once
the State has introduced evidence of nonpayment, the burden
of going forward shifts to the defendant to offer some
reasonable excuse for failing to pay. Reyes v.
State, 2012 Ark.App. 358, at 5. Appellant's Arkansas
probation officer testified that when appellant submitted his
application to transfer probation to Texas, he signed a
statement outlining his duties regarding the conditions of
his probation, one of them being his obligation to make
court-ordered monthly payments to the Miller County Circuit
Clerk. Testimony established that appellant had made no
payments on these fines from the time he was placed on
probation on April 7, 2009. At trial, he asserted that he had
made payments to the State of Texas for his Texas supervision
fees and that he thought this constituted payment on his
Arkansas fines and costs. The court specifically found
appellant's testimony not credible because he had never
made payments on his court-ordered obligations, even for the
five years that he resided in Arkansas, and because his
Arkansas probation officer testified that he had specifically
told appellant that he was still obligated to make the
payments to the Miller County Circuit Clerk even after his
transfer to Texas. Further, the transfer documents state that
he is required to comply with the terms and conditions placed
on him in Arkansas, which include payments to the Miller
County Circuit Clerk of all fines, fees, and costs. The
circuit court, as trier of fact, was entitled to assess
appellant's explanation for his failure to pay and
conclude that his nonpayment was not excusable. We defer to
the circuit court here and hold its finding is not clearly
against the preponderance of the evidence. Because the State
need only show that the appellant committed one violation in
order to sustain a revocation, we decline to address the
other bases for the court's revocation.
Richardson, 85 Ark.App. at 349, 157 S.W.3d at 538.
second point on appeal, appellant contends that the circuit
court erred by denying his motion to dismiss the revocation.
His motion alleged that the court had failed to provide a
preliminary hearing pursuant to Ark. Code Ann. §
16-93-307(a), and that it should therefore dismiss the
petition. That statute provides that a defendant arrested for
violation of probation is entitled to a preliminary hearing
"to determine whether there is reasonable cause to
believe that he or she has violated a condition" of
probation. Id. The hearing is to be held "as
soon as practicable after arrest." Id. A
preliminary hearing is not required if the defendant waives
the hearing, the revocation is based on the defendant's
commission of an offense for which he has been tried and
found guilty, or the revocation hearing is held promptly
after the arrest in the judicial district where the alleged
violation occurred or where the defendant was arrested. Ark.
Code Ann. § 16-93-307(d) (Repl. 2016). It is within the
circuit court's discretion to grant or deny a motion to
dismiss. McClanahan v. State, 2010 Ark. 39, at 3,
358 S.W.3d 900, 901-02. When a court's ruling on a matter
is discretionary, we will not reverse unless there has been
an abuse of that discretion. Id.
recitation of the procedural history is helpful on this
point. Appellant was arrested on probation-revocation
warrants on December 20, 2014. He had a first appearance on
December 23, 2014; his next court date was set for January 6,
2015. He appeared with counsel on January 6 and requested a
continuance until January 20, 2015, which the court granted.
He appeared with different counsel on January 20 and sought a
continuance until February 10, 2015. On February 10, he
appeared and requested a transfer of the case to a different
division where the other two petitions were scheduled. On
February 17, 2015, he appeared with new counsel and again
sought a continuance, which was granted until April 27, 2015,
with a pretrial date of April 14, 2015. On April 14, 2015,
appellant did appear for the pretrial conference but again
sought and was granted a continuance until July 27, 2015. On
July 27, appellant sought and was granted a continuance until
October 26, 2015, because he had filed a federal lawsuit
against his counsel, who then requested to withdraw. On
September 29, 2015, new counsel was appointed, and appellant
sought a continuance until February 22, 2016. Again, on
February 22, ...