FROM THE ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT
[NO. 01DCR-08-10] HONORABLE DAVID G. HENRY, JUDGE.
Knutson Law Firm, by: Gregg A. Knutson, for appellant.
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE.
London appeals the Arkansas County Circuit Court's order
revoking his suspended imposition of sentence (SIS) on the
charge of delivery of cocaine, a Class Y felony. He argues
that there was insufficient proof that he inexcusably failed
to pay as ordered. We affirm.
entered a negotiated plea of guilty in the circuit court on
June 18, 2009. He pled to delivery of cocaine, a Class Y
felony. He was sentenced to an SIS of 240 months with
conditions that included payment of a $5, 000 fine suspended
upon compliance of all terms and conditions, and also payment
of costs at a rate of $75 a month.
State first petitioned to revoke London's SIS in December
2011, alleging that he had violated the terms by failing to
make any of the required monthly payments, being arrested for
robbery and failure to appear, and testing positive for
phencyclidine (PCP). Upon motion of the State, the circuit
court entered an order on October 10, 2014, nunc pro tunc to
August 1, 2012, dismissing the first petition without
prejudice with the requirement that the conditions of
London's suspended sentence be strictly enforced.
November 19, 2014, the State filed a second petition to
revoke London's SIS, re-alleging the allegations in the
first petition to revoke. Additionally, the State alleged
that London had violated the conditions of his suspended
sentence because he had been arrested for public
intoxication, loitering, and possession of instruments of
crime. London was arrested on the petition. However, based on
his representations to the prosecutor that if released he
would receive disability income from which he would make
payments toward his fines and court costs and that he would
report for the revocation hearing on April 27, 2016, he was
released on February 24, 2016. London did not appear for the
April 27 hearing.
revocation-and-failure-to-appear hearing on September 29,
2016, the only violation addressed was London's complete
failure to pay fines and costs. Both the State and London
stipulated that he had not made any payment on the fines and
costs as ordered. London's suspended sentence was
revoked, and the circuit court sentenced him to 10 years'
imprisonment in the Arkansas Department of Correction (ADC).
This appeal followed.
revoke probation or an SIS, the burden is on the State to
prove the violation of a condition of the probation or SIS by
a preponderance of the evidence. Jones v. State, 355
Ark. 630, 144 S.W.3d 254 (2004). A circuit court may revoke
an SIS if it finds by a preponderance of the evidence that
the defendant inexcusably failed to comply with a single
condition of his or her suspension. See Ark. Code
Ann. § 16-93-308(d) (Supp. 2015). On appellate review,
the circuit court's findings will be upheld unless they
are clearly against the preponderance of the evidence.
Nelson v. State, 2010 Ark.App. 549. Because the
burdens are different, evidence that is insufficient for a
criminal conviction may be sufficient for revocation of
probation or SIS. Id. Thus, the burden on the State
is not as great in a revocation hearing. Id.
because the determination of a preponderance of the evidence
turns on questions of credibility and weight to be given to
the testimony, we defer to the circuit court's superior
position. Id. Specifically, we have noted that
"[t]he circuit court is not required to believe the
testimony of the defendant because he is the person most
interested in the outcome of the hearing." Rhoades
v. State, 2010 Ark.App. 730, at 3, 379 S.W.3d 659, 661.
alleged violation involves the failure to pay court ordered
fines and costs, the court may revoke the suspended sentence
if it finds the defendant has failed to make a good-faith
effort to pay the obligation. Thompson v.
State, 2009 Ark.App. 620. While the State has the
burden of proving that the failure to pay is inexcusable,
once the State has introduced evidence of nonpayment, the
burden shifts to the defendant to provide a reasonable excuse
for his or her failure to pay. Id. This court
reviews the sufficiency of the evidence supporting revocation
in the light most favorable to the State. E.g.,
Bohannon v. State, 2014 Ark.App. 434, at 5, 439
S.W.3d 735, 738.
instant case, both the State and London stipulated that he
had not made any payment of fines and costs as ordered.
London testified that since he pled guilty in 2009, he had
been disabled and unemployed and had either lived with his
sister or been incarcerated for probation violations on
another criminal conviction. London also introduced a Social
Security Administration (SSA) letter dated August 24, 2015,
that stated his date of disability was June 18, 2014, and
that his monthly disability benefit of $733 would resume on
September 1, 2015. The letter indicated that he had
previously received disability payments, but London denied
having ever received any disability payments prior to 2016
and testified that his disability payments were suspended
while he was incarcerated.
introduced his ADC "Pen Pack" to show that since he
pled guilty in 2009, he had been repeatedly incarcerated for
violating the terms of his probation on a separate
conviction. He also denied ever having received a lump-sum
disability payment retroactive to the date of disability;