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APPEAL
FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NO. 16JCR-11-17], HONORABLE PAMELA HONEYCUTT, JUDGE
Terry
Goodwin Jones, for appellant.
Leslie
Rutledge, Atty Gen., by: Kent G. Holt, Asst Atty Gen., for
appellee.
OPINION
BRANDON
J. HARRISON, Judge
Jesse
Lamb appeals the Craighead County Circuit Courts finding
that he violated the conditions of his probation. On appeal,
he argues that the State failed to prove that his failure to
comply with the conditions was willful. We affirm.
In a
criminal information filed 14 January 2011, Lamb was charged
with breaking or entering. He pled guilty, and in April 2012,
he was sentenced to five years probation. In June 2014, the
State petitioned to revoke Lambs probation, asserting that
he had violated the conditions of his probation by using
drugs, failing to report residence changes, and failing to
pay fines as ordered. Lamb pled guilty to violating his
probation and in April 2015 was sentenced to three years
probation.
On 28
February 2018, the State petitioned to revoke Lambs
probation, contending that he had violated the conditions of
his probation by failing to report, failing to pay
supervision fees, and failing to pay fines as ordered. Due to
a transfer and reassignment of criminal cases within the
Craighead County circuit courts and two continuances
requested by the defense in May and August 2018, the circuit
court did not convene a hearing until 28 November 2018.
Tammy
Hubble, the staff accountant for the Craighead County
Sheriffs Department, testified that Lambs initial balance
in March 2012 was $506, that a $50 payment had been made on 2
November 2018, and that Lambs current balance was $456. Ryan
Jones, Lambs probation officer, testified that Lamb was a
"frequent absconder" and that he was not current on
his supervision fees. Jones said Lamb currently owed $362 in
supervision fees.
Lamb
testified that he had not made any payments until November
2018 because he had just started receiving disability
benefits for autism. He said he received $756 a month and
planned to make payments of $100 a month going forward. He
also stated that his failure to report to his probation
officer was due to "transportation problems." On
cross-examination, he agreed that he had been on some form of
assistance or disability and had been receiving survivors
benefits since he was a child but that his mother had been
the payee on the checks and "[s]he spends all [his]
money on alcohol, and [he] had to finally get the check in
[his] name so that [he] could make the payments."
Page 411
The
circuit court found that the State had "clearly met its
burden of proof" and that Lamb had not complied with the
conditions of his probation "apparently from the
beginning." Lamb was sentenced to three years
imprisonment with an additional three years suspended
imposition of sentence. He has timely appealed.
To
revoke probation, the circuit court must find by a
preponderance of the evidence that the defendant has
inexcusably violated a condition of the probation. Ark. Code
Ann. § 16-93-308(d) (Supp. 2017). To sustain a revocation,
the State need only show that the defendant committed one
violation. Prackett v. State, 2014 Ark.App. 394,
2014 WL 3642214. Evidence that may not be sufficient to
convict can be sufficient to revoke due to the lower burden
of proof required for revocation. Newborn v. State,
91 Ark.App. 318, 210 S.W.3d 153 (2005). A circuit courts
finding in revocation proceedings will not be reversed on
appeal unless it is clearly against the preponderance of the
evidence. Id. Because the preponderance of the
evidence turns on questions of credibility and weight to be
given testimony, we defer to the superior position of the
circuit court to decide these matters. Mosley v.
State, 2016 Ark.App. 353, 499 S.W.3d 226.
When
the alleged violation is a failure to make payments as
ordered, it is the States burden to prove that the failure
to pay was inexcusable; once the State has introduced
evidence of nonpayment, the burden of going forward shifts to
the defendant to offer some reasonable excuse for failing to
pay. Reese v. State,26 Ark.App. 42, 759 S.W.2d 576
(1988). Factors to be considered in determining whether to
revoke a probation or suspension for failure to pay include
the defendants employment status, earning ability, and
financial resources; the willfulness of the defendants
failure to pay; and other special circumstances. Ark. Code
Ann. § 5-4-205(f)(3) (Supp. 2017). Once the defendant claims
the inability to ...