FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-16-196]
HONORABLE JOHN W. LANGSTON, SPECIAL JUDGE
Brent Standridge, Saline County Deputy Public Defender, for
Rutledge, Att'y Gen., by: David L. Eanes Jr., Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, JUDGE.
September 28, 2016, appellant Breanna Rene Talbert pleaded
guilty to negligent homicide and two counts of third-degree
battery. These charges arose out of an incident where Breanna
negligently operated her motor vehicle by traveling on the
wrong side of the road, resulting in a collision that killed
the driver of the other vehicle and injured two passengers.
On October 6, 2016, the trial court entered an amended
sentencing order placing Breanna on one year of probation for
each of these offenses. Among other things, Breanna's
conditions of probation prohibited her from drinking alcohol
or using controlled substances.
12, 2017, the State filed a petition to revoke Breanna's
probation, alleging that she violated the conditions of her
by testing positive for alcohol and controlled substances on
multiple occasions. The revocation petition further alleged
that Breanna had admitted using cocaine, marijuana, and
alcohol during her probation. After a revocation hearing held
on August 13, 2017, the trial court found that Breanna had
violated her probation conditions, and a sentencing hearing
was subsequently held on September 13, 2017. Pursuant to a
sentencing order entered on September 18, 2017, the trial
court revoked Breanna's probation and sentenced her to
three concurrent one-year terms of incarceration in the
appeal, Breanna concedes that there was sufficient evidence
to warrant a revocation of her probation for failing drug
tests and admitting that she used prohibited substances. Her
only point on appeal concerns her sentencing. Breanna argues
that the jail term of one year, which was the maximum term
she could have received, was unduly harsh and constituted an
abuse of the trial court's discretion. Breanna contends
that the trial court instead should have continued her
probation with the condition that she undergo a
drug-treatment rehabilitation program at her expense. We
probation officer, Debbie Gorham, testified at the revocation
hearing. Ms. Gorham stated that she periodically tested
Breanna for alcohol and controlled substances and that
Breanna tested positive on numerous occasions. During 2017,
Breanna tested positive for cocaine and alcohol on January
12; cocaine on February 9; cocaine on March 14; cocaine,
alcohol, marijuana, and amphetamines on April 26; and
cocaine, alcohol, marijuana, and benzodiazepines on May 26.
In addition, on May 24 Breanna admitted using cocaine,
alcohol, and marijuana. Ms. Gorham testified that, between
the time the petition for revocation was filed on June 12,
2017, and the revocation hearing, Breanna's bimonthly
drug-and-alcohol screens had been negative. Ms. Gorham
further testified that, other than using drugs and alcohol,
Breanna had complied with her remaining conditions, including
reporting to probation and paying fines and restitution. On
cross-examination, Ms. Gorham stated that although Breanna
underwent a drug-and-alcohol assessment as a condition of her
probation, there had been no recommendation or referral for
her to undergo treatment.
testified on her own behalf, and she did not contest the
positive drug tests. Breanna testified that her grandmother
had paid her fines and restitution, while she had used money
she had saved to buy drugs and alcohol. Breanna stated that
after failing the drug tests she started attending Narcotics
Anonymous meetings, from which she had benefited. Breanna
asked the trial court that she be ordered to attend
outpatient drug treatment as opposed to incarceration.
the trial court found Breanna in violation of her probation,
she testified at the ensuing sentencing hearing that she had
continued to test negative for drugs and alcohol. She had
also been complying with the other conditions of her
probation. Breanna asked the trial court to order outpatient
treatment at her expense and to possibly extend her
probation. The State asked the trial court to sentence
Breanna to one year in jail for her admitted violations. The
trial court revoked Breanna's probation and sentenced her
to one year in jail.
sole point on appeal is that, although there was sufficient
evidence to revoke her probation, the trial court abused its
discretion in sentencing her to one year in jail. Breanna
asserts that the one-year sentence, which was the maximum
allowable by law, was unduly harsh under the circumstances.
Breanna contends that, rather than giving her jail time, the
trial court should have continued her probation with the
condition that she undergo drug treatment in a rehabilitation
program at her expense.
support of her argument, Breanna asserts that she had paid
all of her fines and restitution. She further notes that,
since her last positive drug test on May 26, 2017, she had
begun attending Narcotics Anonymous meetings on her own and
had remained drug free. In her testimony, Breanna stated that
she wanted to participate in drug rehabilitation and was
willing to pay for it if so ordered by the trial court. She
claims that it was clear from the evidence that she would
have benefited from drug treatment, and she asks that we
reverse and remand for resentencing.
apparent from the record that the judgment and sentence
entered against Breanna was lawful. When the trial court
revokes a defendant's probation, the trial court may
enter a judgment of conviction and may impose any sentence on
the defendant that might have been imposed originally for the
offense of which he or she was found guilty. Ark. Code Ann.
§ 16-93-308(g)(1)(A) (Supp. 2017). Breanna was placed on
probation for the Class A misdemeanor offenses of negligent
homicide and two counts of third-degree battery. See
Ark. Code Ann. § 5-10-105(b)(2) (Repl. 2013); Ark. Code
Ann. § 5-13-203(b) (Repl. 2013). A Class A misdemeanor
carries a maximum one-year jail term. Ark. Code Ann. §
5-4-401(b)(1) (Repl. 2013). The one-year sentence imposed by
the trial court was within the statutory range prescribed by
in Arkansas is entirely a matter of statute, and no sentence
shall be imposed other than as prescribed by statute.
Lenard v. State, 2014 Ark. 478, 522 S.W.3d 118. When
the sentence given is within the maximum prescribed by law,
the sentence is not illegal, because the court has the
authority to impose it. Richie v. State, 2009 Ark.
602, 357 S.W.3d 909. This court has held that the trial court
has discretion to set punishment within the statutory range
of punishment provided for a particular crime. Whitmore
v. State, 2018 Ark.App. 44, 539 S.W.3d 596. Moreover,
our supreme court has held that it will not reduce a
sentence, even if it considers it unduly harsh, if it falls
within the legislative limits of the General Assembly.
Brown v. ...