APPEAL
FROM THE HOT SPRING COUNTY CIRCUIT COURT [NO. 30CR-17-110]
HONORABLE CHRIS E WILLIAMS, JUDGE
Phyllis J. Lemons, for appellant.
Leslie
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
BRANDON J. HARRISON, JUDGE
Kyston
Bass appeals the circuit court's denial of his petition
for postconviction relief, asserting that the circuit court
erred in giving him two strikes for the same incident,
terminating his participation in drug court without due
process, and denying his petition for a reduction in
sentence. We affirm.
In
2017, Kyston Bass pled guilty to one count of residential
burglary and one count of theft of property. Bass was
sentenced to twenty-six years' imprisonment, but his
sentence was deferred, and he was placed in the drug-court
program. In June 2018, Bass was suspended from drug court
after receiving three strikes and sentenced to twenty-six
years' imprisonment. Bass subsequently filed a timely
petition for postconviction relief, arguing that he was not
given a hearing on his second and third strikes and was
denied due process "by being surprised in court on these
strikes and by not being allowed to fully prepare for a
hearing." In the alternative, Bass moved to reduce his
sentence, asserting that the sentence was unreasonably
excessive considering he had no prior criminal history and
had accepted responsibility for his actions in court.
The
circuit court convened a hearing on 14 August 2018. Danny
Marsh, a parole and probation officer, testified that he also
oversees the drug-court program in the Seventh Judicial
District. Marsh explained that Bass had entered the
drug-court program in November 2017 and that he (Marsh)
provided Bass with a set of conditions for his supervision
and a drug-court handbook. Marsh noted that Bass had
initialed beside each condition of his supervision as it was
explained to him.
According
to Marsh, Bass was issued a first strike in March 2018 after
he tested positive for alcohol. On 25 May 2018, Bass arrived
approximately one hour late for his drug testing, for which
he received a second strike. Bass later told Marsh that he
had been at a job interview, which Marsh was unable to
confirm. Bass was sentenced to fourteen days in jail for the
second strike. The drug test he had taken was positive for
THC, and after completing his fourteen-day sentence, Bass
returned to court and was given a third strike for the
positive drug test. On cross-examination, Marsh said that
drug-court participants are not normally given any written
notice before receiving a strike. Marsh also confirmed that
Bass did not have any prior felonies.
Linda
White, a drug-court administrator, testified that she had
administered Bass's drug test in May 2018 in which he
tested positive for THC. She said that he had arrived late
but she allowed him to take the drug test, and by the time
the in-house positive result had been obtained, Bass had
already been taken to serve his fourteen-day sentence for
being late. On cross-examination, White said that when Bass
arrived for the test, she told him he had missed the cutoff
time, and Bass knew he would get a strike for being late. She
agreed that participants did not get written notice of
strikes but said, "[T]hey do have the rules of Drug
Court and know what is a strike and what is not."
Bass
testified that he was twenty years old when he entered the
drug-court program and that he had no prior convictions. He
admitted that he deserved his first strike for drinking
alcohol but said that he did not deserve his second strike
because "she didn't tell me anything. When I came in
she told me that I was late and then I asked her could I
still take the drug test. And then she was like, yeah. So she
didn't let me know anything else after that." He
also insisted that he had not taken any THC, but he had been
in a car where THC had been smoked. He testified that he was
"never notified" about strikes two and three and
agreed that he did not have time to prepare for a hearing.
(At this point, the court interjected that Bass was getting a
hearing that day based on his petition and that there had
been no prior petition filed.) Bass also agreed that his
sentence was excessive and that because of his young age, he
could have been given probation. On cross-examination, he
agreed that he thought that because he had been allowed to
take his drug test, it did not matter that he had been late.
The
circuit court first found that Bass's due-process
argument had been ruled on in Tornavacca v. State,
2012 Ark. 224, 408 S.W.3d 727. In that case, our supreme
court explained:
At the Rule 37 hearing, the issue of whether appellant
committed his second and third strikes was fully aired, and
based on the evidence presented, the circuit court found that
appellant had consumed alcohol, that he did not phone the
call-in line, and that he ingested medication that had not
been approved. Thus, appellant has been accorded the benefit
of an adversarial hearing regarding the strikes.
Id. at 14, 408 S.W.3d at 737. The circuit court
found that Bass's due-process rights had not been denied,
that he could have petitioned for a hearing on any of his
three strikes but did not do so, and that he had been heard
on all three strikes at the Rule 37 hearing. The circuit
court also found that Bass had clearly committed three
separate infractions warranting strikes: drinking alcohol,
showing up late, and testing positive for THC. Finally, the
court found that Bass's twenty-six-year sentence was not
excessive because it was within the sentencing range for the
charges to which he pled guilty. The circuit court entered an
order denying Bass's petition for postconviction relief
and his petition for reduction in sentence on 17 August 2018.
Bass has timely appealed.
We will
reverse the circuit court's decision granting or denying
postconviction relief only when that decision is clearly
erroneous. See Howard v. State, 367 Ark. 18, 238
S.W.3d 24 (2006). A finding is clearly erroneous when,
although there is evidence to support it, the appellate
court, after reviewing the entire ...