APPEAL
FROM THE CRAWFORD COUNTY CIRCUIT COURT [NOS. 17CR-12-313 AND
17CR-16-551] HONORABLE MICHAEL MEDLOCK, JUDGE
Ogles
Law Firm, P.A., by: John Ogles, for appellant.
Leslie
Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, JUDGE
Roy
Williams appeals the Crawford County Circuit Court's
order revoking his probation and sentencing him to seven
years' imprisonment. He argues that the State failed to
prove that his failure to pay restitution was willful. We
affirm.
On
September 14, 2012, Williams pled guilty to forgery in the
second degree and was sentenced to thirty-six months'
probation, fines of $3, 500, court costs, and restitution in
the amount of $3, 012.15. The court ordered Williams to pay
his fines, court costs, and restitution in monthly
installments of $55 beginning in October 2012. After a series
of revocation proceedings, new criminal charges, and periods
of incarceration, the State filed two separate petitions to
revoke on August 2 and 29, 2018, alleging that Williams had
failed to pay restitution as ordered.
At
Williams's revocation hearing on January 4, 2019, the
State presented testimony that Williams still owed
restitution in the amount of $2, 547.14, meaning that almost
seven years after first being ordered to pay restitution, he
had paid only about one-third of the amount owed. The State
introduced into evidence a payment ledger showing payments
made only in October and December 2017 and in January and
February 2018. Williams testified that he had been told he
could resume making payments when he left a halfway house
where he lived from June to September 2017. In June 2017,
Williams worked for W & W Automotive, bringing home $450
a week. Starting in September 2017, Williams lived with his
father and his wife, so he did not have to pay rent, but he
had normal living expenses, such as wood for heat,
electricity, cable, and a car payment. At the hearing,
Williams testified that he had lost his job near the
beginning of April 2018 but had made arrangements to get it
back.
The
court ruled that Williams had sufficient income and more than
enough expendable money to pay more restitution than he had
paid. Consequently, it revoked his probation and sentenced
him to seven years' imprisonment in the Arkansas
Department of Correction.
To
support revocation of a defendant's probation, the State
must prove a violation of the conditions of probation by a
preponderance of the evidence. Cox v. State, 2017
Ark.App. 73, at 2. However, the State need only prove a
defendant violated one probationary condition in order for a
circuit court to revoke probation. Id. The appellate
court will not reverse the circuit court's decision to
revoke unless it is clearly erroneous or clearly against the
preponderance of the evidence. Ferguson v. State,
2016 Ark.App. 4, at 3, 479 S.W.3d 588, 590. "Determining
whether a preponderance of the evidence exists turns on
questions of credibility and the weight to be given to the
testimony." Siddiq v. State, 2016 Ark.App. 422,
at 2, 502 S.W.3d 537, 539. This court defers to the circuit
court's determinations regarding witness credibility and
the weight to be given to testimony. Id., at 4, 502
S.W.3d at 540.
The
circuit court may revoke probation if the defendant has not
made a good-faith effort to make the court-ordered payments.
Rhoades v. State, 2010 Ark.App. 730, at 3, 379
S.W.3d 659, 661. 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
forward shifts to the defendant to offer some reasonable
excuse for the failure to pay. Id. at 3, 379 S.W.3d
at 661. If the probationer asserts an inability to pay and
provides evidence demonstrating that inability, then the
State must demonstrate that the probationer did not make a
good-faith effort to pay. Peals v. State, 2015
Ark.App. 1, at 4, 453 S.W.3d 151, 154. Despite the shifting
of the burden of production, the State shoulders the ultimate
burden of proving that the probationer's failure to pay
was inexcusable. Id. at 4, 453 S.W.3d at 154.
On
appeal, Williams does not dispute that he failed to make
payments as required by the conditions of his probation. He
argues that the State did not prove that his failure to pay
was willful. In response, the State argues that even if the
court credited Williams's contention that he had been
told he did not have to make payments until after he left the
halfway house, he still failed to make several payments after
leaving the halfway house in September 2017, despite the fact
that he earned $450 a week and chose to pay for cable TV. In
Hanna v. State, 2009 Ark.App. 809, at 6, 372 S.W.3d
375, 379, we explained that the State can carry its burden of
proving willful nonpayment in several ways: (1) by
undermining the probationer's credibility; (2) by showing
the probationer's lack of effort; (3) by showing that a
probationer failed to make a bona fide effort to seek
employment or borrow money; or (4) by showing that the
probationer is spending money on something nonessential or
illegal instead of paying restitution. See also Joseph v.
State, 2019 Ark.App. 276, at 5, 577 S.W.3d 55, 59. Here,
the State presented evidence demonstrating that Williams
chose to spend $68 per month on something nonessential like
cable TV, which would have covered the monthly payment of $55
in restitution he claims he could not afford to pay. We
affirm.
Affirmed.
Virden
and ...