FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCR-09-390] HONORABLE STEPHEN TABOR, JUDGE
D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for
Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE
Richard Keyes appeals the Sebastian County Circuit Court
order revoking his suspended sentence. On appeal, Keyes
argues that the State did not establish that he violated a
term or condition of his suspended sentence. We affirm.
August 21, 2013, Keyes pled guilty to overdraft in case
number CR-2009-390, and the Sebastian County Circuit Court
sentenced him to 42 months' probation and 120 months'
suspended sentence. The terms and conditions of his suspended
sentence included that he not violate any federal, state, or
municipal law and that he pay restitution, fines, fees, and
August 18, 2016, the State filed a petition to revoke
Keyes's suspended sentence. In the petition, the State
alleged that Keyes had violated the terms and conditions of
his suspended sentence by not paying restitution, fines,
fees, and court costs. On April 25, 2018, the State amended
its petition to include the allegation that Keyes had
committed the offense of abuse of an adult between January 1
and April 18, 2018.
court held a hearing on the petition on August 9, 2018. At
the hearing, the State introduced Keyes's
restitution-case profile for case number CR-2009-390. The
profile is dated August 8, 2018, and shows that Keyes had
made no restitution payments and had a balance of $754.28.
The State also introduced into evidence Keyes's case
profile for case number CR-2009-390. The profile is dated
August 8, 2018, and shows that Keyes had made no payments
toward fines, fees, and court costs and had a balance of $1,
Pacheco, a patrolman with the Fort Smith Police Department,
then testified that on April 18, 2018, he was dispatched for
a welfare check at the apartment of Frank Feltman, who was
ninety years old. Specifically, Feltman's son had
requested the check because his stepbrother, Keyes, had
informed him that Feltman was dying. Pacheco testified that
Keyes opened the door to the apartment and permitted him
inside. He stated that the apartment had a strong unpleasant
odor and was littered with trash, pet hair, and dust. Pacheco
stated that he saw Feltman sitting in a recliner with a
blanket but no clothing and that "he was literally skin
and bones." Pacheco graphically described the very
unclean condition that Feltman had been sitting in and stated
that Feltman could only open one eye.
then testified that Feltman had married his mother when he
was ten years old. He explained that in their old age,
Feltman and his mother had lived together in an
assisted-living facility, but after his mother died, Feltman
wanted to live with Keyes rather than alone. Keyes testified
that he was happy to host Feltman and that he adequately
cared for him. He acknowledged that Feltman's health had
deteriorated, but he did not seek medical attention because
Feltman had expressed to him that he wanted to die at home.
Keyes also testified that he thought that he had made all of
his court-ordered payments a long time ago.
conclusion of the hearing, the circuit court found that Keyes
had violated the terms and conditions of his suspended
sentence by committing abuse of an adult and by failing to
pay restitution, fines, fees, and court costs. The court
revoked his suspended sentence and sentenced him to six years
in the Arkansas Department of Correction. Keyes timely
appealed the revocation to this court.
to Arkansas Code Annotated section 16-93-308(d) (Supp. 2015),
a circuit court may revoke a defendant's suspended
sentence at any time prior to the expiration of the period of
suspended sentence if the court finds by a preponderance of
the evidence that the defendant has inexcusably failed to
comply with a term or condition. The burden is on the State
to prove a violation of a term or condition by a
preponderance of the evidence. Baker v. State, 2016
Ark.App. 468. On appeal, the circuit court's findings
will be upheld unless they are clearly against the
preponderance of the evidence. Id. Because a
determination of the preponderance of the evidence turns
heavily on questions of credibility and weight to be given to
the testimony, the appellate courts defer to the circuit
court's superior position in this regard. Id.
Only one violation of the conditions of probation must be
proved to support a revocation. Id. Evidence that is
insufficient for a criminal conviction may be sufficient for
a revocation proceeding because the burdens of proof are
first argues that the State did not establish that he did not
pay his court-ordered restitution, fines, fees, and costs. He
recognizes that the State introduced the case profile and the
restitution-case profile showing balances. However, he points
out that no one testified that the documents accurately
reflected what he owed, and he argues that without such
testimony, the court had no basis to find that he had not
made the required payments.
circuit court may revoke probation if the defendant has not
made a good-faith effort to make his court-ordered payments.
Rhoades v. State, 2010 Ark.App. 730, 379 S.W.3d 659.
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 of going ...