Bohannon v. State

2014 Ark. App. 434, 439 S.W.3d 735, 2014 Ark. App. LEXIS 577
CourtCourt of Appeals of Arkansas
DecidedSeptember 3, 2014
DocketCR-14-44
StatusPublished
Cited by9 cases

This text of 2014 Ark. App. 434 (Bohannon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bohannon v. State, 2014 Ark. App. 434, 439 S.W.3d 735, 2014 Ark. App. LEXIS 577 (Ark. Ct. App. 2014).

Opinion

ROBERT J. GLADWIN, Chief Judge.

| Appellant Brenda Bohannon appeals the revocation of her probation by the Jefferson County Circuit Court, for which she was sentenced to eight years’ imprisonment in the Arkansas Department of Correction (ADC). She argues that the circuit court committed reversible error in revoking her probation without analyzing why she had failed to pay the court-ordered restitution. We affirm.

On or about November 17, 2004, the State filed a criminal information against appellant accusing her of violating the Arkansas Hot Check Law — (in amounts of less than $2500 but more than $200)— regarding multiple checks on Simmons First National Bank payable to various merchants — pursuant to Arkansas Code Annotated sections 5-37-301 to -307 (Repl. 2006). A judgment-and-disposition order was entered on September 20, 2006, listing appellant’s plea of guilty and her sentence of 120 hours’ community service, assessment |2of a number of different court costs and a fine, and an order to pay restitution of $5,520.36 at the rate of $113 per month.

On October 5, 2011, the State filed a petition to revoke alleging that appellant had violated the terms of her probation because she had not paid her $1,150 in court fines and was delinquent $4,351.72 in restitution. The recommendation of the probation officer was to extend probation. After various continuances and appointments, on July 16, 2013, the State filed a supplemental petition to revoke alleging that appellant had violated additional terms of her probated sentence, which included to failing maintain or provide proof of gainful employment, making false, misleading, and deceptive claims that she had complied with the terms and conditions of her probation, and failing to complete her court-ordered community-service hours.

At the hearing on the State’s petition, the circuit court found that appellant had made payments totaling $1,483.60 — which left her owing $5,236.72 of the $6,720.32 originally owed. The circuit court found that she had violated the terms and conditions of her probation by failing to pay and that her failure to make the payments was willful. The circuit court revoked her probation and sentenced her to a term of eight years in the ADC pursuant to a sentencing order filed October 1, 2013. Appellant filed a timely notice of appeal on October 24, 2013.

In order to revoke probation or a suspended imposition of sentence, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a conditioh of the suspension or probation. Ark.Code Ann. § 16-93-308(d) (Supp.2011). |30n appellate review, the circuit court’s findings will be upheld unless they are clearly agairlst the preponderance of the evidencei Williams v. State, 2013 Ark. App. 592, at 1, 2013 WL 5745076. Where the alleged violation involves the failure to pay ordered amounts, after the State has introduced evidence of nonpayment, the burden shifts to the probationer to provide a reasonable excuse for the failure to pay. Sanders v. State, 2012 Ark. App. 697, at 2-3, 2012 WL 6200377. It is the probationer’s obligation to justify his failure to pay, and this shifting of the burden of production provides arj opportunity to explain the reasons for nonpayment. Id. Despite the shifting of the burden of production, the State shoulders the ultimate burden of provihg that the defendant’s failure to pay was inexcusable. Scroggins v. State, 2012 Ark. App. 87, at 9, 389 S.W.3d 40, 45.

Appellant argues that the circuit court erred in revoking her probation, submitting that the circuit court should have granted the relief recbmmended by the probation officer — a coiitjnuatioh of her probation until she could pay the restitution. Appellant claims that the State’s case consisted of testimony that indicated that the relevant records were untrustworthy and that no one redlly knew what had happened over the five years of probation. She maintains that the ohly reliable proof presented was the print-out of what was owed, and she notes that the circuit court modified that when presented with proof that the print-out was incorrect.

Appellant cites Arkansas Code Annotated section 5-4-205 (Supp.2011), which provides in relevant part:

(a)(1) A defendant who is found guilty or who enters a plea of guilty or nolo contendere to an offense may be ordered to pay restitution.
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(f) (1) If the defendant is placed on probation or any form of conditional release, any restitution ordered under this section is a condition of the suspended imposition of sentence, probation, parole, or transfer.
(2) The court may revoke probation and any agency establishing a condition of release may revoke the conditional release if the defendant fails to comply with the order and if the defendant has not made a good faith effort to comply with the order.
(3) In determining whether to revoke probation or conditional release, the court or releasing authority shall consider:
(A) The defendant’s employment status;
(B) The defendant’s earning ability;
(C) The defendant’s financial resources;
(D) The willfulness of the defendant’s failure to pay; and
(E) Any other special circumstances that may have a bearing on the defendant’s ability to pay.

Appellant argues that the five factors listed in subsection (f)(3) weigh heavily in fdvor of not revoking her probation. She notes that she had been intermittently employed and had been off work for health reasons. She earned $372 per week, before taxes in her present job, which she claims is barely above the current poverty level for a family of two. She claims that her reference to lacking transportation at one point in time indicated that she had no real financial resources. She urges that while there was no proof of willfulness, there was proof of confusion over what appellant actually owed and had actually paid. Appellant cites Phillips v. State, 101 Ark.App. 190, 272 S.W.3d 123 (2008), in support of her argument that the circuit court erred in focusing solely on the fact that appellant did not pay without considering the factors she presented as to why she did not do so. See also Hanna v. State, 2009 Ark. App. 809, 372 S.W.3d 375; Reese v. State, 2009 Ark. App. 678, 2009 WL 3384409.

|BWe disagree. Viewed in the light most favorable to the State, the following evidence supports the circuit court’s decision. It is undisputed that appellant entered a negotiated guilty plea to a C-felony violation of the statute, section 5-37-305(b)(2), pursuant to which appellant agreed to a sentence of sixty months’ probation, and to pay a $750 fine, $150 in court costs, a $50 sheriff fee, a $250 DNA fee, and a monthly $25 probation fee. See also Ark.Code Ann. § 5-4-201(a)(2) (Repl.2006).

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Bluebook (online)
2014 Ark. App. 434, 439 S.W.3d 735, 2014 Ark. App. LEXIS 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bohannon-v-state-arkctapp-2014.