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Clark v. State

Court of Appeals of Arkansas, Division IV

September 11, 2019

BRANDON MICHAEL CLARK APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          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 ...


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