APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NOS. 04CR-17-1369,
04CR-16-2161] HONORABLE BRAD KARREN, JUDGE
Scholl
Law Firm, P.L.L.C., by: Scott A. Scholl, for appellant.
Leslie
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
RITA
W. GRUBER, CHIEF JUDGE
Appellant
Brandon Michael Clark appeals from an order revoking his
probationary sentences and sentencing him to an aggregate of
twenty years' imprisonment, followed by two years'
suspended imposition of sentence. On appeal, he argues that
the evidence is insufficient to support the revocation and
that the sentences imposed by the circuit court were so
unduly harsh that the sentences constituted an abuse of
discretion. We affirm.
On
April 25, 2017, appellant entered a negotiated guilty plea to
aggravated assault on a family member and first-degree
terroristic threatening in case No. 2016-2161, both Class D
felonies. The victim of the offenses was appellant's
mother, Linda Kellems. Appellant was sentenced to four
years' probation for each offense, and numerous other
charges were nolle prossed. He was ordered to pay court costs
and fines, as well as abide by the conditions of probation.
In addition, a no-contact order with his mother was modified
to a no-violence order.
The
State filed a petition to revoke his probation on May 3,
2018, alleging that appellant committed the offense of
aggravated assault of a family member on July 18, 2017. On
May 3, 2018, appellant entered a negotiated plea of guilty to
second-degree domestic battery and aggravated assault of a
family member in case No. 2017-1369, Class D and C felonies
respectively. He was sentenced to six years' probation
for each offense. In addition, appellant entered a negotiated
guilty plea in the revocation case, and the court extended
his probation by two years for both offenses in case No.
2016-2161. The sentencing order entered May 9, 2018, included
a condition that appellant have no contact with Linda
Kellems.
On July
31, 2018, the State filed a petition to revoke
appellant's probation in cases Nos. 2016-2161 and
2017-1369, alleging that he violated the conditions of his
probation. Specifically the State alleged that appellant (1)
failed to report to his supervising officer after being
released from incarceration; (2) left the state without
permission of his supervising officer; (3) failed to pay
fines, fees, and costs as ordered by the court; (4) failed to
report changes of residence to his supervising officer; (5)
committed the offense of third-degree domestic battery on or
about July 29, 2018; (6) violated the no-contact order on or
about July 30, 2018; and (7) consumed alcoholic beverages on
or about July 29, 2018.
A
revocation hearing took place on September 11, 2018. Matthew
Jenkins, appellant's probation officer, testified that
appellant failed to report after being released from
incarceration, traveled outside the state without permission,
failed to report his change of address, violated the
no-contact order, and consumed alcoholic beverages. Bella
Vista police officer Cole Byers testified that he reported to
an incident at Linda Kellems's home on July 29, 2018,
where appellant was present and appeared to be intoxicated.
The State also introduced surveillance videos from
Kellems's neighbor, which showed appellant at
Kellems's home on July 29.
Appellant
testified at the hearing and admitted that he failed to
report to his probation officer after his release from
incarceration, failed to report his change of residence, and
consumed alcohol. While he also admitted traveling across the
state line, not paying fines and fees, and violating the
no-contact order, he claimed that the violations were
excusable. He explained that his probation officer told him
he could travel across the state line for work, gas, and
groceries, that he was going to assist his mother, and that
the 120-day grace period for paying the fines had yet to
expire.
Following
the hearing, the court found that the State had met its
burden of proof on all counts except the failure to pay
fines. In addition, the court granted the State's motion
to dismiss count five-the third-degree domestic-battery
allegation. The sentencing order entered on September 18,
2018, reflects that appellant was sentenced to ten years'
imprisonment for second-degree domestic battery and six
years' imprisonment for aggravated assault on a family
member in case No. 2017-1369, as well as four years'
imprisonment to be followed by two years' SIS for
aggravated assault of a family member and six years' SIS
for first-degree terroristic threatening in case No.
2016-2161. Appellant filed a timely notice of appeal on
October 3, 2018.
I.
Sufficiency of the Evidence
To
revoke probation, the State must prove the violation of at
least one condition of the probation by a preponderance of
the evidence. Jones v. State, 355 Ark. 630, 144
S.W.3d 254 (2004). A circuit court may revoke probation if it
finds, by a preponderance of the evidence, that the defendant
inexcusably failed to comply with a single condition of his
or her probation. See Ark. Code Ann. §
16-93-308(d) (Supp. 2017). On appellate review, the circuit
court's findings will be upheld unless they are clearly
against the preponderance of the evidence. Young v.
State, 2018 Ark.App. 517, at 2-3, 563 S.W.3d 599,
600-01.
In his
first point on appeal, appellant contends that "the
trial court erred in entering a finding of true to counts 1,
2, 4, and 7 of the petition for revocation of suspension or
probation." Specifically, he contends that that there
was insufficient evidence that he was provided with explicit
written ...