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Young v. State

Court of Appeals of Arkansas, Division II

December 11, 2019

JANET YOUNG APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-04-141] HONORABLE MICHAEL MEDLOCK, JUDGE

          Tyson K. Spradlin, for appellant.

          Leslie Rutledge, Att'y Gen., by: Michael Zangari, Ass't Att'y Gen., for appellee.

          RITA W. GRUBER, CHIEF JUDGE.

         Appellant Janet Young appeals the Crawford County Circuit Court's order revoking her probation and sentencing her to two years' imprisonment followed by eight years' suspended imposition of sentence (SIS) on two counts of fraudulent use of a credit card and ten years' suspended imposition of sentence for twelve counts of second-degree forgery. She argues that the circuit court erred in revoking her probation based on her being disabled and her inability to pay. We affirm.

         On December 20, 2004, appellant pleaded nolo contendere to two counts of fraudulent use of a credit card and twelve counts of second-degree forgery. The circuit court sentenced her to ten years' SIS for each offense, subject to terms and conditions, which included that she pay $54, 052.66 in restitution. The court ordered the restitution to be paid in installments, with $10, 000 due on the plea date and the remaining balance to be paid at the rate of $175 per month beginning January 15, 2005. The payments were to be made to the Crawford County Prosecuting Attorney's Office.

         The State filed a petition to revoke appellant's suspended sentences on February 20, 2008, alleging that she had failed to make payments since September 17, 2007, in violation of the terms and conditions of her suspended sentences. The petition alleged that the balance due on January 19 was $38, 277.66. On August 24, 2008, the court entered an order granting the State's motion to withdraw the petition based on appellant resuming payments as ordered.

         The State filed a second petition to revoke on August 13, 2012, alleging nonpayment since January 24, 2012, with a remaining balance due of $31, 267.66. A revocation hearing was held on July 16, 2015. The circuit court revoked appellant's suspended sentences and sentenced her to ten years' probation subject to terms and conditions, including her continued monthly restitution payments of $175 to begin on August 3, 2015. The sentencing order entered July 29, 2015, provided that the restitution due after appellant paid $2100 in court was $27, 067.66. The terms and conditions required that she pay a $35 probation fee monthly beginning on August 1, 2015.

         A third revocation petition was filed by the State on October 7, 2015. The State alleged that appellant was in violation of the terms and conditions of her probation because she had failed to make any payments toward her restitution or fees since August 14, 2015, leaving an unpaid restitution balance of $26, 882.66. Appellant was not served with the petition until July 5, 2018, and the revocation hearing took place on January 18, 2019.[1]

         Catherine Smith of the Crawford County Prosecutor's Office testified about appellant's restitution payment records. Smith stated that in 2017, appellant made six payments, each less than the $175 required payment, totaling $480. In 2018, appellant made five payments totaling $865-three for $175, one for $220, and one for $120. According to Smith, appellant had made one payment in 2019 at the time of the January hearing.

         Smith testified about a note in appellant's record indicating appellant called the office on September 11, 2017, at which time appellant was informed that she was $7, 480.66 behind in her payments. She testified that the note also stated that appellant was told by her attorney that she did not have to "pay all of it."[2] Smith said that after September 11, appellant did not make a payment until March 2018. On cross-examination, Smith said that since the 2015 petition to revoke was filed, appellant had made twenty-six payments.

         The State rested after Smith's testimony, and appellant testified in her defense. She explained that she was receiving disability payments of $845 in 2018, which had increased to $869 in 2019. She said she had monthly bills, including $395 rent for her one-bedroom apartment, $20 to $30 for electricity, $25 for a prepaid phone, approximately $50 for prescriptions not covered by Medicare and Medicaid, approximately $75 for groceries, $75 for cable, and $175 for restitution payments. When asked whether she was able to make the restitution payment, appellant said, "It's hard. I don't have anything left, but I've been making it."

         On cross-examination, appellant testified that she was not aware that she was $9000 behind on restitution and admitted that it "shocked" her because she had been making her payments. She explained some payments were for lower amounts because her lawyer told her to "pay what you can." She said she was not trying to do "anything wrong" or "cheat anybody." Appellant seemed to be unaware that after making the September 2017 call to the prosecutor's office-where she informed them that her lawyer told her she did not have to pay the full amount-she did not make any payments for the next five months. She said there was no reason she would not have been making payments. Appellant admitted that she had been arrested three times for failing to make payments, and on some of these occasions, she was able to come up with money, including $2000 in 2008 and $4500 in 2015. On redirect, appellant testified that her son made the $2000 payment, a friend made a $2500 bond payment, and another friend she described as a "second mother" made the $4500 payment. She further testified that her sons and her friends paid her $1000 cash bond when she was arrested on the current petition to revoke.

         At the conclusion of the hearing, the circuit court found that appellant had violated the terms and conditions of her probation. The prosecutor made a sentencing recommendation, and defense counsel responded that appellant was "not willfully not making payments" and was "making everything she can based on the amount of money that she has coming in and the bills that she has to pay." The circuit ...


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