Brent Lawrence v. State of Arkansas

2020 Ark. App. 285, 600 S.W.3d 670

• Court: Court of Appeals of Arkansas
• Decided: May 6, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 285

Reason: I attest to the ARKANSAS COURT OF APPEALS accuracy and integrity of this DIVISION III document No. CR-19-976 Date: 2021-07-07 12:02:00 Foxit PhantomPDF Version: 9.7.5 OPINION DELIVERED: MAY 6, 2020

BRENT LAWRENCE APPEAL FROM THE LOGAN APPELLANT COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. 42BCR-16-112] V. HONORABLE JERRY D. RAMEY, JUDGE STATE OF ARKANSAS APPELLEE REVERSED AND DISMISSED

ROBERT J. GLADWIN, Judge

Brent Lawrence appeals the Logan County Circuit Court’s order revoking his

suspended imposition of sentence (SIS) and sentencing him to seventy-two months’

confinement in the Arkansas Department of Correction (ADC). He argues that the circuit

court erred in (1) revoking his SIS because the State failed to present sufficient evidence that

he willfully violated the terms and conditions of his SIS regarding his payment of court-

ordered fees, costs, and restitution; (2) finding he violated the terms of his SIS by not

submitting himself to community service; and (3) allowing the State to admit the terms and

conditions of his SIS because the conditions listed were terms of probation prohibited by

state law and violated his right to due process and Arkansas law because they were not

explicit. We find merit in Lawrence’s first argument on appeal, and we reverse and dismiss. I. Facts and Procedural History

On April 17, 2017, Lawrence pleaded guilty in the Logan County Circuit Court to

one count of residential burglary in case number 42BCR-2016-112. The circuit court

sentenced him to seventy-two months in the ADC with an additional seventy-two-month

SIS that, following his release from prison, was conditioned on his abiding by written rules

of conduct, paying court costs and administrative fees, and making restitution to the victims.

He was released on November 21, 2017, and was to begin his payments sixty days after his

release.

On January 7, 2019, the State filed a petition to revoke Lawrence’s SIS, alleging that

he had failed to comply with its terms and conditions. The petition was subsequently

amended on March 15 and again on June 27, citing as violations:

a. The Defendant as of March 1, 2019 has failed to pay the following fees:1

l. Court Cost $150.00 (Condition 16)

2. Restitution $3,760.00 (Part of Condition 15)

3. DNA Fee $250.00 (Part of Condition 15)

b. The Defendant as of April 19, 2019 is $344.00 delinquent in Supervision fees.

c. The Defendant on or about November 08, 2018 failed to report as directed.

d. The Defendant Failed to Appear on or about the following days:

1. April 1, 2019

2. June 7, 2019

e. The Defendants whereabouts are currently unknown.

1 Condition 17 states that fines, costs, and restitution shall be paid $60 per month beginning sixty days after release with subsequent payments due on the first of each month thereafter.

2 The allegation common to all three petitions was that Lawrence had inexcusably failed to

pay the fines, costs, fees, or restitution associated with his SIS.

A hearing on the revocation petition was held on October 4. The State called Elaine

Robertson, the Logan County circuit clerk, who authenticated the sentencing order related

to the residential-burglary conviction and conditions of SIS that included the payment of

fines, costs, administrative fees, and restitution, which were acknowledged by Lawrence

when he entered his guilty plea.

The sentencing order was admitted into evidence without objection. The State

attempted to admit the conditions of SIS, but Lawrence objected, stating they were

improper under state law because they required him to submit to supervision, were in

violation of his right to due process, and were in violation of Arkansas law. Lawrence argued

that the State failed to provide clear, concise, and under the law, conditions that he could

understand. The State responded that Lawrence had been represented by counsel and that

he had signed a document stating that he would abide by those conditions. Lawrence’s

objection was overruled.

Leanna Jones, a deputy circuit clerk in charge of maintaining the records of payments

in felony cases, testified that the records indicated Lawrence had made no payments toward

the fees and restitution associated with his SIS since his release from prison on November

21, 2017. A third witness was called—Shelby Kiersey, one of Lawrence’s burglary victims

(married to Lawrence’s great uncle)—who, over Lawrence’s objection, testified that she had

not received any restitution following Lawrence’s release.

3 At the close of the State’s case, defense counsel moved to dismiss the petition, arguing

that the conditions of the SIS signed by Lawrence were illegal and unconstitutional in that

he did not know which of the enumerated conditions applied to him. The State responded

that Lawrence was represented be a licensed attorney who was capable of explaining those

conditions and that the testimony before the circuit court constituted prima facia evidence

that Lawrence had violated conditions of his SIS that have nothing to do with supervision.

The motion was denied, and rather than specifically challenging the sufficiency of the

evidence, Lawrence presented additional evidence.

Lawrence’s medical provider, nurse practitioner Billy Noel, testified that Lawrence

has uncontrolled type 1 diabetes, hepatitis C, MRSA, congestive heart failure, and COPD

and that his appearance was skeletal due to the wasting effects of the uncontrolled diabetes.

Noel testified that he had not seen Lawrence on drugs or incapacitated in any way at his

clinic visits. Further, Noel stated that he did not believe Lawrence would be capable of

getting and maintaining a job because of his health problems—stating that he is in very poor

health and limited in his life expectancy. He also testified that he had needed to provide free

treatment to Lawrence on several occasions.

Lawrence testified about his physical infirmities, living conditions, inability to work,

attempts to borrow money, being destitute, and lack of willfulness in his inability to pay the

court-ordered fines, costs, fees, and restitution. He asserted that he wanted to pay his

obligations but that he did not even have twenty dollars he could have paid to bond out.

The State asked Lawrence if he had ever tried to ask for community service, and he

responded that community service did not qualify for restitution. The State then asked if he

4 could have done community service, and he responded that he could do “very little,

limited” but that he could have tried.

At the conclusion of the hearing, the circuit court noted that Lawrence had not only

paid nothing toward his fees and restitution, he had made no attempt to do so. The circuit

court found that Lawrence’s failure to pay these costs was an inexcusable violation of

conditions 15, 16, and 17 of the written conditions of SIS provided to him, stating:

All right. Mr. Lawrence, here’s the Court’s position. I’ve listened to the case; I’ve looked at the exhibits. And I understand the arguments. But there is one thing that really caught my attention. During the cross examination, you were asked, “could you have done community service?” And your answer was, “yes, I could have, I just didn’t.” And then there was another question about the time frames on the payments. And there was no action at all. I mean, I hear these a lot. And the one thing I’m always looking for is somebody to try. Ten dollars a month, five dollars a month, community service, do something. And the problem is you’ve done nothing.

Even though you have got medical conditions, I understand that. Diabetes is pretty prevalent issue in today’s society. That’s not an issue one way or the other, but the fact is you didn’t do anything. And based on that I’m going to find that the State has met its burden. I’m going to find that you inexcusably violated Conditions 15, 16, and 17 of the Conditions of [SIS], which are payment of fines, costs, fees, restitution. And I am going to find you guilty on that. I will sentence you to 72 months in the [ADC], with credit for 70 days that you spent incarcerated pending adjudication of this matter. You will have the underlying fines, costs, fees, and restitution that you had when you were initially sentenced. And you will make your payments at the rate of $50.00 per month, plus the $10.00 monthly admin fee to begin within 60 days of your release from [ADC].

The circuit court found Lawrence guilty based on his violation of conditions 15, 16,

and 17, and sentenced him to seventy-two months’ confinement in the ADC. The

sentencing order was filed of record on October 4, and a timely notice of appeal was filed

of record on October 9.

II. Standard of Review and Applicable Law

We recently reiterated our standard of review in revocation cases:

5 A circuit court may revoke a defendant’s probation if it finds by a preponderance of the evidence that the defendant has violated a condition of the probation. The State bears the burden of proof, but it need only prove that the defendant committed one violation of the conditions. Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation of probation. On appeal, we will defer to the circuit court’s superior position in evaluating the credibility and weight of testimony presented at the hearing. A circuit court’s finding in revocation proceedings will not be reversed on appeal unless it is clearly against the preponderance of the evidence.

Ruffin v. State, 2020 Ark. App. 179, at 5–6, 597 S.W.3d 151, 154–55 (internal citations

omitted).

A challenge to the sufficiency of the evidence at a hearing seeking to revoke a

defendant’s SIS may be raised for the first time in an appeal of a revocation in the absence

of a motion to dismiss. See, e.g., Barbee v. State, 346 Ark. 185, 188, 56 S.W.3d 370, 372

(2001).

Specifically, with respect to revocations based on failure to pay, we recently held:

When the alleged violation involves the failure to pay court-ordered restitution, after the State has introduced evidence of nonpayment, the burden shifts to the defendant to provide a reasonable excuse for his or her failure to pay. [Bohannon v. State, 2014 Ark. App. 434, 439 S.W.3d 735]. It is the defendant’s obligation to justify his or her failure to pay, and this shifting of the burden of production provides an opportunity to explain the reasons for nonpayment. Id. If he or she asserts an inability to pay, then the State must demonstrate that the probationer did not make a good-faith effort to pay. Williams v. State, 2019 Ark. App. 437, at 3, 586 S.W.3d 208. Ultimately, the State has the burden of proving that the defendant’s failure to pay was inexcusable. Id.

Arkansas Code Annotated section 5-4-205(f)(3) provides that in determining whether to revoke based on failure to pay, the court must consider the defendant’s employment status, earning ability, financial resources, the willfulness of the failure to pay, and any other special circumstances that may have a bearing on the defendant’s ability to pay. Ark. Code Ann. § 5-4-205(f)(3)(A)–(E) (Supp. 2017). While the statute governing revocations requires the circuit court’s consideration of certain factors in determining whether a party’s inability to pay is inexcusable, the statute does not require explicit findings of fact on those factors. Springs v. State, 2017 Ark. App. 364, at 5, 525 S.W.3d 490, 493. In Hanna v. State, 2009 Ark. App. 809, at 6, 372 S.W.3d 375, 379, we explained that the State can carry its burden of proving

6 willful nonpayment in several ways: (1) by undermining the probationer’s credibility; (2) by showing the probationer’s lack of effort; (3) by showing that a probationer failed to make a bona fide effort to seek employment or borrow money; or (4) by showing that the probationer is spending money on something nonessential or illegal instead of paying restitution. See also Williams, supra; Joseph v. State, 2019 Ark. App. 276, at 5, 577 S.W.3d 55, 59.

Young v. State, 2019 Ark. App. 580, at 5–6, 591 S.W.3d 385, 388–89.

III. Discussion

A. Sufficiency of the Evidence Supporting Revocation

Lawrence was alleged to have not made a payment in accordance with his SIS

conditions document; an allegation that he does not dispute. Lawrence does not dispute that

he failed to pay as ordered. It is also undisputed that Lawrence presented significant evidence

in support of his reasonable excuse for nonpayment. The issue on appeal is whether the

State refuted Lawrence’s evidence of his good-faith inability to pay. Arkansas Code

Annotated section 5-4-205(f)(2) (Supp. 2019) states that the court may revoke if the

defendant has not made a good-faith effort to comply with the order. In determining

whether to revoke any form of conditional release for a failure to pay restitution, the court

“shall consider” the defendant’s employment status, earning ability, financial resources, the

willfulness of the failure to pay, and any other special circumstances that may have bearing

on the defendant’s ability to pay. Ark. Code. Ann. § 5-4-205(f)(3)(A)–(E); see also Young,

supra; Hanna, supra. This court has held that this “inquiry reflects the delicate balance

between the acceptability and indeed the wisdom, of considering all relevant factors when

determining an appropriate sentence for an individual and the impermissibility of

imprisoning a defendant solely because of his lack of financial resources.” Hanna, 2009 Ark.

App. 809, at 4, 372 S.W.3d at 378.

7 Lawrence addressed the above-referenced factors in Hanna through his testimony

and that of his medical provider. Lawrence produced evidence of his inability to work based

on his uncontrollable diabetes and MRSA/staph infection, including undergoing surgery

for MRSA in April 2018. He explained that he had applied at the local chicken plant and

was turned down for work because of his criminal charges and for being sick and not able

to work. Lawrence testified that he underwent hernia surgery—for one large and five small

ones—which resulted in forty-one clips being placed in his stomach in September 2018. He

explained that the surgery has affected his ability to work in that he is not allowed to lift

anything. Lawrence testified that his uncontrolled diabetes has damaged his hands and feet

to such an extent that he can no longer feel them.

Lawrence testified that he has no home and that he had lived with his parents upon

release from prison until they lost their home. He detailed how, after his parents lost their

home, they were homeless—living under a bridge, eating from a dumpster, with no way to

get to court. Lawrence explained that he had made efforts to borrow the money from his

parents and his aunt. Lawrence testified that he did not have the twenty dollars he needed

to bond out after his arrest and that during the seventy-four days he had been in jail, he had

not even had a dollar for commissary.

Lawrence’s medical provider, Noel, testified regarding Lawrence’s multiple serious

health issues. Noel noted that he had not seen Lawrence under the influence of drugs or

incapacitated in any way during his clinic visits. Further, Noel testified that he did not

believe Lawrence would be capable of getting and maintaining a job because of his health

problems. He also explained that he had to provide free treatment to Lawrence on several

occasions because of his lack of financial resources.

8 The State’s efforts to satisfy the Hanna requirement to undermine or diminish

Lawrence’s credibility through cross-examination consisted primarily of questioning as to

why he did not perform community service, which was not an obligation of the conditions

of his SIS. In Hanna, 2009 Ark. App. 809, at 6, 372 S.W.3d at 379, we listed the ways in

which the State can meet its burden of production. The State can attempt to undermine the

probationer’s credibility, which is a matter for the circuit court to assess. Here, the circuit

court made no indication that either Lawrence or Noel lacked credibility. The State can

also meet its burden by showing that Lawrence failed to make bona fide efforts to seek

employment or to borrow money. But here, Lawrence presented undisputed evidence that

he did make bona fide efforts to seek employment, which were unavailing because of his

health issues, and to borrow money—from relatives who were themselves destitute. The

State can also meet its burden by showing that Lawrence has been spending his money on

something illegal or nonessential instead of paying restitution. Here, not only did the State

fail to do so, but Lawrence specifically testified that he had no money for lodging, food,

bond, or even commissary while in jail. Noel likewise refuted a suggestion that Lawrence

spent money on drugs, testifying that he saw no indication of drug use during his treatment

of Lawrence.

Lawrence notes that the actual definition of “inexcusable” adopted by this court in

Springs v. State, 2017 Ark. App. 364, at 4, 525 S.W.3d 490, 493, is “incapable of being

excused or justified—Syn. unpardonable, unforgiveable, intolerable.” Lawrence argues that

the circuit court clearly found against the preponderance of the evidence in finding his

failure to pay was inexcusable. We agree; accordingly, we hold that the circuit court

9 committed reversible error because the State failed to meet its burden to prove Lawrence’s

willful and inexcusable failure to pay.

Just as in Hanna, supra, the State offered no evidence of Lawrence’s other sources of

income, assets, or expenses because there were none. It is undisputed that Lawrence was

homeless, seriously ill, and eating out of dumpsters. Therefore, similar to Hanna, the defect

is in the proof itself, not only in the findings on the proof. The failure of the State’s proof

requires that this court reverse the revocation order and dismiss the petition. See Hanna,

2009 Ark. App. 809, at 9, 372 S.W.3d at 381 (citing Wilcox v. State, 99 Ark. App. 220, 222,

258 S.W.3d 785, 787 (2007)).

Although Lawrence also argues that the circuit court erred when it relied on his lack

of community service as a basis for the revocation, we note that the circuit court did not base

the revocation on his failure to do community service. Finally, because we are reversing and

dismissing the revocation, we need not address Lawrence’s argument that the terms and

conditions of his SIS were confusing, unconstitutional, and violative of Arkansas law because

they did not explicitly state what conditions Lawrence had to abide by to stay out of prison.

We do point out that Lawrence was represented by counsel, and he and his counsel signed

and acknowledged the conditions and sentencing order. Moreover, his testimony during

the revocation hearing indicates that he understood the nuances of his sentence.

Reversed and dismissed.

WHITEAKER and BROWN, JJ., agree.

Beth Wright, for appellant.

Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.