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Arnold v. State

Court of Appeals of Arkansas, Division II

January 24, 2018



          Denton & Zachary, PLLC, by: Joe A. Denton, for appellant.

          Leslie Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge.

         In this appeal of a probation revocation in the Fulton County Circuit Court, Matthew Arnold argues that the trial court abused its discretion in denying his motion for continuance. We affirm.

         I. Procedural History

         Arnold pled guilty and was convicted on March 18, 2014, of possession of methamphetamine, possession of drug paraphernalia, and theft of property. He was sentenced, concurrently, to five years' probation on each count. His probation was subject to several conditions, including that he not commit a criminal offense punishable by imprisonment, that he submit to random testing for illegal substances, and that he not use, sell, or possess any controlled substance or associate with any person known to use or sell illegal drugs. A special condition of his probation was that he successfully complete the Sixteenth Judicial District Drug Court Program.

         The State filed a petition to revoke Arnold's probation on September 13, 2016, alleging that Arnold had (1) tested positive for amphetamines on July 6, 2016; (2) failed to report to his supervising officer for drug testing as ordered on July 14, July 23, August 5, and August 12, 2016; and (3) failed to report to the Veterans Treatment Court as ordered on August 18, 2016. The State alleged that Arnold's whereabouts were unknown.

         At the hearing on the State's revocation petition, Arnold asked that the hearing be continued because the State had subpoenaed Arnold's probation officer from Fayetteville, but Arnold's counsel did not know about the subpoena until the day before the hearing and had not talked to the probation officer. The State responded that Arnold's probation had been transferred to Washington County at Arnold's request and that the officer was going to testify about what the State pled in the petition to revoke. Arnold, through his counsel, responded, and the following colloquy occurred:

Defense Counsel: Judge, my position on that is that there is incorrect I mean, the petition says that he was revoked from doing certain things. And cites Officer Morehead. There's a reference to someone in there without a phone number or anything like that. And it's kind of scratched through it and has Josh Morehead on it. The phone number, I've talked to Josh about it. But I didn't get a copy of the subpoena. I think it's 16-43-211, says criminal proceedings, civil procedure governs. And I think under Rule 45 I'd be entitled to receive a copy of that subpoena before the trial.
The Court: Make him a copy and I'll let you visit with his probation officer before we have the hearing today. I think that's fair enough. This case is getting old. So, what, this afternoon, 1:30. But before then [defense counsel] will have the opportunity to visit with the Fayetteville probation officer.

         When the trial court reconvened on the same day, defense counsel renewed his motion, arguing, as he did previously, that he had not had time to prepare properly and that he was entitled to the information. The trial court denied the motion.

         When the hearing resumed, Joshua Morehead, probation and parole agent for the State of Arkansas, testified that he had supervised Arnold from March 17, to August 21, 2014, when Arnold had been transferred to Washington/Madison County. Morehead said that the drug court had given Arnold two strikes for lying to the court about missing a class, failing a drug test, using synthetic drugs, and bringing in a device filled with urine to pass a drug test. He said that Arnold was sanctioned and sentenced to 56 days in jail. After that, Arnold was sent to an ACC treatment facility for 90 days then transferred to Fayetteville.

         Matthew Penquite, a probation and parole agent with Washington County, testified that Arnold was placed in the Washington County Drug Court on February 11, 2015, and he tested positive for amphetamines on July 6, 2016. He said that Arnold absconded in July 2016. Penquite testified that Arnold failed to report to his probation officer on July 14, 2016. He also said that Arnold had been admitted to a veterans' treatment program within the Washington County Drug Court and had failed the ...

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