Neal v. State

         APPEAL FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-12-89], HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE

         Knutson Law Firm, Benton, by: Gregg A. Knutson, for appellant.

         Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.

          OPINION

         RAYMOND R. ABRAMSON, Judge

          This is an appeal of a revocation proceeding. In December 2012, appellant Delvin Demond Neal was convicted by a Drew County Circuit Court jury of possession of cocaine with intent to deliver and fleeing in a vehicle causing damage. The jury sentenced Neal to ten years’ probation on the possession charge and an additional six years’ probation on the fleeing charge; the circuit court imposed the sentences to run concurrently. The State filed a petition to revoke Neal’s probation on July 17, 2018. At an October 22 revocation hearing, the circuit court found that Neal had violated the terms of his probation and sentenced him to ten years’ incarceration on the possession charge and six years’ incarceration on the fleeing charge, to be served consecutively. On appeal, Neal alleges that the circuit court considered evidence not presented at the revocation hearing when determining his sentences. We affirm.

          The burden on the State in a revocation proceeding is to prove by a preponderance of the evidence that the defendant inexcusably failed to comply with at least one condition of his or her probation, as alleged in the State’s petition. Amos v. State, 2011 Ark.App. 638, 2011 WL 5110125; Maxwell v. State, 2009 Ark.App. 533, 336 S.W.3d 881; Ark. Code Ann. § 16-93-308(d) (Repl. 2017). On appeal from a revocation, we "will not reverse the trial court’s decision to revoke unless it is clearly erroneous, or clearly against the preponderance of the evidence." Brown v. State, 2016 Ark.App. 403');">2016 Ark.App. 403, at 4, 500 S.W.3d 781, 784 (citing Ferguson v. State, 2016 Ark.App. 4, at 3, 479 S.W.3d 588, 590). Moreover, we defer to the credibility determinations made by the circuit court and the weight it assigns to the evidence. Peals v. State, 2015 Ark.App. 1, at 4, 453 S.W.3d 151, 154. We have long held that to "sustain a revocation, the State need show only that the defendant committed one violation." Springs v. State, 2017 Ark.App. 364, at 3, 525 S.W.3d 490, 492. The State’s burden of proof in a revocation proceeding is less than is required to convict in a criminal trial, and evidence that is insufficient for a conviction thus may be sufficient for a revocation. Id.

         Upon the revocation of probation, the circuit court can impose any sentence that originally could have been imposed as long as any sentence of imprisonment, when combined with any previous term of imprisonment, does not exceed the statutory maximum for the offense. Ark. Code Ann. § 16-93-308(g) (Supp. 2011). When multiple sentences of imprisonment are imposed on a defendant convicted of more than one offense, including an offense for which probation has been revoked, the circuit court has the authority to impose the sentences consecutively. Ark. Code Ann. § 5-4-403(a) (Repl. 2006). The decision to impose consecutive or concurrent sentences lies solely within the province of the circuit court, and the appellant assumes a heavy burden of showing that the lower court failed to give due consideration in the exercise of that discretion. E.g., Smith v. State, 354 Ark. 226, 248, 118 S.W.3d 542, 555 (2003).

          On April 4, 2018, Neal was arrested on new felony charges of possession of methamphetamine with intent to deliver, possession of drug paraphernalia, maintaining a drug premise, terroristic threatening, and five counts of endangering the welfare of a child.

          At the revocation hearing, Officer James Slaughter of the Monticello Police Department testified that when he and Probation Officer Harris arrived at Neal’s home to conduct a search, a woman named Tiffany Wigfall Lewis, Neal’s roommate, informed them that Neal was not home. However, Harris heard Neal in the home and entered to investigate. While Harris was making contact with Neal, Lewis went into the bathroom and attempted to flush a large quantity of drugs down the toilet. Neal testified at the hearing that the drugs were not his, but Officer Slaughter had taken a statement from Neal in which Neal said that while he was not a major dealer in the community, the drugs were his.

         On appeal, Neal attacks the sentences he received upon revocation, alleging that the circuit court considered evidence not admitted at the revocation hearing when determining those sentences. He bases his argument on the following colloquy between the court and his counsel:

THE COURT: Well, clearly it is not an inconsiderable amount. He may not be the biggest dealer in a town, however, neither is he a dealer just for purposes of getting enough money to use himself. And meth is such a horrible, horribly addictive-I don’t know if it beats crack or not--they’re both awful--but it does seem to be the drug of choice now. And the sentence before was for--The conviction before on the, let’s see, 2012, was for possession with intent to deliver, so it would appear that he is an unreformed and unrepentant drug dealer. That’s it. There’s no other conclusion. This case comes six years later.

And I recall at the first appearance, the living conditions were horrible. There were kids in the house. There were dogs outside that were in horrible shape and--

MR. LEONARD: Your ...