FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NOS. 66FCR-14-483, 66FCR-15-386, AND 66FCR-16-1146]
HONORABLE JAMES O. COX, JUDGE
Standridge, for appellant.
W. GRUBER, CHIEF JUDGE
Colby Bullington appeals from the revocation of his suspended
sentences in three separate cases. The Sebastian County Circuit
Court found by a preponderance of the evidence that he had
violated the conditions of his suspended sentences by
committing the offense of rape, revoked the suspended
sentences, and sentenced him to serve a total of twenty-six
years' imprisonment. For reversal, appellant argues that
he "did not waive the burden of proof of reasonable
doubt and he did not waive a jury trial to which he was
entitled for proof that he violated the law." We affirm.
December 10, 2014, appellant pleaded guilty to delivery of
oxycodone, a Class C felony, in case No. CR-2014-483 and was
sentenced to ten years' suspended imposition of sentence
(SIS). On June 3, 2015, appellant pleaded guilty to
possession of drug paraphernalia, a Class D felony, in case
No. CR-2015-386, and he was sentenced to two years'
imprisonment plus an additional four-year SIS. On December
16, 2016, appellant pleaded guilty to three charges in case
No. CR-2016-1146: (1) possession of methamphetamine, a Class
D felony; (2) possession of drug paraphernalia, a Class D
felony; and (3) possession of marijuana, Class A misdemeanor.
He was sentenced to five years' SIS. In each case, the
terms and conditions of the SIS included that appellant shall
not violate any federal, state, or municipal law.
November 1, 2017, the State filed a petition to revoke in all
three cases, alleging numerous violations of the terms and
conditions of his suspended sentences, including the
allegation that appellant committed the offense of rape in
April 2017. The revocation hearing took place on April 26,
does not challenge the sufficiency of the evidence;
therefore, only a brief recitation of the facts and evidence
is necessary. The victim testified that appellant, the son of
her friend and neighbor, came to her back door on the evening
of April 20, 2017. She stated that when she opened the door,
appellant grabbed her arm, walked her backward to the front
door, and pinned her against the wall. She recalled that
appellant tried to kiss her and put his hand underneath her
nightgown. When she told him to stop, he became rougher with
her, picked her up, carried her to an upstairs bedroom, threw
her down on the bed, and put his hands around her throat with
enough pressure that it scared her. She testified that he let
go of her throat, grabbed her underwear, and put his penis
inside her. When she stopped fighting him out of fear he was
going to hurt her, appellant stopped, told her that she was
not making it fun for him, lit a cigarette, and acted like
nothing had happened.
victim did not report the incident for a couple of months but
did so after discussing it during treatment at a hospital
following a suicide attempt. The victim had saved the
partially torn underwear that she had been wearing at the
time of the incident, which she gave to the investigating
officer. The officer interviewed appellant, who denied both
going inside the victim's home that night and ever having
sex with her. Appellant consented to giving a DNA sample.
Witnesses from the Arkansas State Crime Laboratory testified
that both semen and blood were found on the underwear and
that the underwear contained a mixture of DNA from two
people, who were identified as appellant and the victim.
finding by a preponderance of the evidence that appellant
violated the conditions of his suspended sentences by
committing the charge of rape, the circuit court revoked his
suspended sentences and sentenced him to serve a total of
twenty-six years' imprisonment-ten years in CR-2014-483,
four years in CR-2015-386, and twelve years in CR-2016-1146,
with the sentences to run consecutively.
start with a brief summary of the principles relating to
revocations. At a revocation hearing, a defendant is entitled
to fundamental fairness and an opportunity to be heard.
Turman v. State, 2015 Ark.App. 383, at 5, 467 S.W.3d
181, 184-85 (citing Lockett v. State, 271 Ark. 860,
611 S.W.2d 500 (1981); Phillips v. State, 40
Ark.App. 19, 23, 840 S.W.2d 808, 810 (1992)). The revocation
of a suspended sentence is not a stage of a criminal
prosecution. Billings v. State, 53 Ark.App. 219, 921
S.W.2d 607 (1996) (citing Lawrence v. State, 39
Ark.App. 39, 839 S.W.2d 10 (1992) (citing Gagnon v.
Scarpelli, 411 U.S. 778 (1973); Pyland v.
State, 302 Ark. 444, 790 S.W.2d 178 (1990)). Arkansas
Code Annotated section 16-93-308(d) (Repl. 2016) provides
that the burden of proof in a revocation case is a
preponderance of the evidence. Further, the State's
burden of proof in a revocation proceeding is less than is
required to convict in a criminal trial, and evidence
insufficient for a conviction at a criminal trial may be
sufficient for revocation. Collins v. State, 2018
Ark.App. 563, at 2, 566 S.W.3d 139, 140. As we explained in
Billings, supra, revocation of a suspended
sentence results in punishment for the original offense; it
is not a separate punishment for behavior that was the
catalyst for the revocation proceedings. See also
Ark. Code Ann. § 16-93-308(g)(1)(A). In this case, the
sentences imposed upon appellant when his suspended sentences
were revoked were for his original offenses.
these principles as a backdrop, we turn to appellant's
argument that a revocation based on a violation of law should
require proof beyond a reasonable doubt rather than a
preponderance of the evidence. He suggests that our supreme
court's holding in Ellerson v. State, 261 Ark.
525, 549 S.W.2d 495 (1977), and its progeny requiring proof
by only a preponderance in a revocation case are inconsistent
with the U.S. Constitution, the Arkansas Constitution, and
the Arkansas Code. Appellant contends that Ellerson
does not apply, and his revocation should therefore be
reversed and dismissed.
State responds that appellant's argument was not raised
below and thus is not preserved for appeal. We agree. In
fact, appellant's counsel conceded below that the
standard of proof was preponderance of the evidence in his
request for the circuit court to withhold sentencing until
the pending rape case was completed. Our law is well settled
that issues raised for the first time on appeal, even
constitutional ones, will not be considered because the
circuit court never had the opportunity to rule on them.
Callaway v. State, 368 Ark. 412, 414, 246 S.W.3d
889, 890 (2007).
also contends that "his probation revocation should have
been tried by a jury on the limited basis of the commission
of a crime." He asserts that he did not waive this right
in the conditions of his suspended sentences or at the
revocation hearing, citing Warwick v. State, 47 Ark.
568, 2 S.W. 335 (1886) (defendant's failure to object ...