APPEAL
FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-12-89] HONORABLE
ROBERT BYNUM GIBSON, JR., JUDGE.
Knutson Law Firm, by: Gregg A. Knutson, for appellant.
Leslie
Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't
Att'y Gen., for appellee.
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; 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 ...