SHERITA M. KING APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION [NO.
60CR-11-2038] HONORABLE MARY SPENCER MCGOWAN, JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, Judge
Sherita King appeals the May 10, 2017 sentencing order issued
by the Pulaski County Circuit Court that revoked her
probation. The trial court based its decision to revoke on a
district court docket sheet showing that King pleaded guilty
to the misdemeanor charge of public intoxication. King argues
on appeal that the trial court erred in refusing to dismiss
the revocation petition because the docket sheet did not
demonstrate that her guilty plea was made while represented
by defense counsel. We reverse and dismiss.
was originally placed on probation in 2011 for being in
possession of PCP, which is the drug
phencyclidine. One of the conditions of her probation was
that she not violate any federal or state law. On September
30, 2016, King was arrested in North Little Rock and charged
with public intoxication. On October 3, 2016, the State filed
a petition to revoke her probation based on that violation.
In hearings conducted in November 2016 and January 2017, King
told the circuit court that she had "pled guilty"
to the public-intoxication charge and that she was
represented by a "public defender." King could not
remember the name of the attorney, but her defense counsel
stated that it "should have been Terry Ballard."
revocation hearing conducted in March 2017, the State entered
into evidence the North Little Rock District Court docket
sheet as proof of her guilty plea to public intoxication. The
docket sheet documented that King was charged with public
intoxication on September 30, 2016; that on the same date
King was released from jail on her own recognizance; that on
October 4, 2016, King pleaded guilty and the trial court
found her guilty; and that District Judge Jim Hamilton
sentenced her to "Fine Plus Court Cost And Fines Given
Credit Time Served." The docket noted the presence of
Lauren Eldridge on behalf of the prosecutor, but it was
silent as to whether King was represented by counsel.
revocation hearing, the State did not make reference to any
of the comments that King had made in earlier hearings about
the public-intoxication matter, nor did the State ask the
trial court to take judicial notice of those prior comments.
The State did not present testimonial or other evidence to
prove that King was, in fact, guilty of public intoxication.
King did not testify. Defense counsel argued to the trial
court that it should dismiss this revocation petition because
there was no proof that King had been represented by counsel
when she entered the guilty plea in district court. The trial
court rejected defense counsel's argument, remarking that
it was left with the State's exhibit showing a district
court finding of guilty, from which King had not appealed.
The trial court acknowledged, however, that the docket sheet
was "silent" so that it had no idea whether King
had been represented at the district court proceedings. The
trial court granted the State's petition to revoke, and
King was sentenced to three years of supervised probation
with random drug screens. This timely appeal followed.
on this topic is well settled. In order to revoke a probation
or a suspended imposition of sentence, the circuit court must
find by a preponderance of the evidence that the defendant
has inexcusably violated a condition of the probation or
suspension. Ark. Code Ann. § 16-93-308(d) (Supp. 2017).
Thus, to sustain a revocation, the State need show only that
the defendant committed one violation. Prackett v.
State, 2014 Ark.App. 394. Evidence that may not be
sufficient to convict can be sufficient to revoke due to the
lower burden of proof required for revocation. Newborn v.
State, 91 Ark.App. 318, 210 S.W.3d 153 (2005). A circuit
court's finding in revocation proceedings will not be
reversed on appeal unless it is clearly against the
preponderance of the evidence. Id. Because the
preponderance of the evidence turns on questions of
credibility and weight to be given testimony, we defer to the
superior position of the trial court to decide these matters.
Mosley v. State, 2016 Ark.App. 353, 499 S.W.3d 226.
argues on appeal that her probation could not be revoked on
the basis of her guilty plea to public intoxication absent
proof that she was either represented by counsel or waived
her right to counsel at the district-court level. King relies
on Alexander v. State, 258 Ark. 633, 527 S.W.2d 927
(1975), as controlling authority on that point. In
Alexander, the Arkansas Supreme Court held that:
[A]n uncounseled municipal court conviction cannot be used
for the purpose of revoking a suspended sentence as the net
effect thereof is "the actual deprivation of a
person's liberty" without "the guiding hand of
counsel." Of course, this does not mean that the
responsible officials cannot show that the facts giving rise
to the municipal court conviction are sufficient themselves
to revoke the suspended sentence.
Alexander v. State, 258 Ark. 633, 637, 527 S.W.2d
927, 930 (1975). The State responds that King stated in an
earlier hearing that she had been represented by a public
defender when she pleaded guilty in district court, so
"that should end the matter." The State further
argues that this situation is akin to using uncounseled
misdemeanor convictions for purposes of enhancing a sentence,
which is permitted under Arkansas law. See Davis v.
State, 330 Ark. 76, 953 S.W.2d 559 (1997). We hold that
King has presented reversible error in this case.
court has recognized the principles of law recited in
Alexander. See, e.g.,
Aikens v. State, 2014 Ark.App. 168;
Dugan v. State, 2009 Ark.App. 402; Haley v.
State, 96 Ark.App. 256, 240 S.W.3d 615 (2006). In
Aikens, the district court's judgment contained
a notation that Aikens was advised of his right to an
attorney and waived that right with a signed waiver; thus,
our court held that in reviewing the subsequent revocation
based on that conviction, the "record [was] not
silent" on the issue of whether this was an uncounseled
municipal court conviction. Aikens, supra,
at 2. In Dugan, considering the same argument in an
appeal of a revocation proceeding, our court held that the
State had met its burden by the alternative method of
presenting evidence of the facts giving rise to the district
court conviction, which was sufficient to revoke. In
Haley, considering the same argument in an appeal of
a revocation proceeding, our court held similarly that the
State had presented evidence of the facts giving rise to the
district court conviction sufficient to revoke.
present appeal, the State did not present any evidence at the
revocation hearing to support that King was guilty of the
misdemeanor crime of public intoxication other than the
docket sheet showing the guilty plea. The district court
docket sheet is silent on whether King was represented by
counsel when she pleaded guilty in district court. The State
failed to "show that the facts" supported that King
was guilty of public intoxication, even by a preponderance
standard. We must follow ...