Cite as 2024 Ark. App. 429 ARKANSAS COURT OF APPEALS DIVISION II NO. CR-24-56
Opinion Delivered September 18, 2024 CHARLES SHEALY APPEAL FROM THE CRAIGHEAD APPELLANT COUNTY CIRCUIT COURT, WESTERN DISTRICT V. [NO. 16JCR-22-566]
STATE OF ARKANSAS HONORABLE CHRIS THYER, JUDGE
APPELLEE AFFIRMED; REMANDED TO CORRECT SENTENCING ORDER
STEPHANIE POTTER BARRETT, Judge
Charles Shealy appeals an order of the Circuit Court of Craighead County finding
that he had violated the conditions of his suspended sentence and sentencing him to seventy-
two months in the Arkansas Division of Correction and placing him on an additional forty-
eight months’ suspended sentence. We affirm the revocation of his suspended sentence and
remand to correct the sentencing order.
On April 1, 2022, Charles Shealy was charged with possession of controlled
substance, methamphetamine, with intent to deliver, a Class C felony; possession of drug
paraphernalia; and possession of a misdemeanor amount of marijuana. On January 9, 2023,
Shealy pleaded guilty to possession of methamphetamine, more than two grams but less than
ten grams, and was sentenced to 120 days in jail and placed on sixty months’ suspended imposition of sentence (SIS). The charges of possession of drug paraphernalia and
possession of marijuana were dismissed pursuant to the plea agreement.
On March 1, 2023, less than sixty days after his plea of guilty to possession of
methamphetamine, Officer Greg Trout of the Jonesboro Police Department saw Shealy
riding a bicycle without a light at 11:00 p.m. in violation of Arkansas law. Shealy was stopped
for the violation, and Officer Trout asked him questions about his identity and whether he
was on probation or serving a suspended sentence. Shealy admitted to Officer Trout that he
was serving a suspended sentence, which was confirmed by a warrant check. The conditions
of Shealy’s suspended sentence gave Officer Trout authority to conduct a warrantless search
of his person and backpack. Officer Trout conducted a search of Shealy’s backpack and
found 0.9 grams of a crystal-like substance and a glass meth pipe with burn marks and
residue. A controlled-substance field test confirmed that the substance was
methamphetamine, and he was placed under arrest for possession of a controlled substance
and possession of drug paraphernalia.
A petition to revoke Shealy’s probation was filed on March 21, 2023, as the result of
the new charges of possession of methamphetamine, a Schedule II controlled substance, less
than two grams, a Class D felony; and possession of drug paraphernalia—namely, a glass
methamphetamine pipe, also a Class D felony. A hearing was held on the petition to revoke
on July 12, 2023. The circuit court took judicial notice of the case file, including Shealy’s
sentencing order and the signed terms and conditions of his suspended sentence. The
relevant terms of Shealy’s suspended sentence were that he must not commit a criminal offense punishable by imprisonment and must not use, sell, distribute, or possess any
controlled substance; and that he must submit his person, place of residence, motor vehicle,
or other property to search and seizure at any time, day or night, with or without a search
warrant, whenever requested by any supervising officer or law enforcement officer.
At the commencement of the hearing, Shealy made a motion for continuance arguing
that the court should defer disposition of the petition and give him an opportunity to
complete his rehabilitation. Shealy chose not to testify, and at the close of the State’s case,
he moved for directed verdict on the basis of what he argued was an extreme search and
failure to show by a preponderance of the evidence that he had violated the terms and
conditions of his suspended sentence. The circuit court denied the motion for directed
verdict, finding the State had established by a preponderance of the evidence that Shealy had
in his possession methamphetamine and drug paraphernalia and had proved Shealy had
inexcusably violated the terms and conditions of his suspended sentence. The court also
denied Shealy’s motion for a continuance to complete his drug rehabilitation. Shealy also
argued that he should have been given a jail sanction of 120 days rather than sentenced to
the Arkansas Division of Correction.
Shealy raised the following points on appeal: (1) that the State did not show by a
preponderance of the evidence that he had violated the terms and conditions of his
suspended sentence; (2) that the search was extreme and should be found unreasonable; (3)
that the court should have deferred sentencing until he could have completed drug rehabilitation; and (4) that he should have been given a jail sanction of no more than 120
days.
Upon review, at the close of all the evidence, Shealy moved for directed verdict,
arguing that the State had failed to show by a preponderance of the evidence that he had
inexcusably violated the terms and conditions of his suspended sentence. The motion was
denied by the circuit court. Motions for directed verdict are challenges to the sufficiency of
the evidence. Benson v. State, 357 Ark. 43, 160 S.W.3d 341 (2004); Holland v. State, 2017
Ark. App. 49, 510 S.W.3d 311. A preponderance of the evidence is convincing evidence
that is more probably accurate and true when weighed against the evidence opposed to it.
E.g., Sivils v. State, 2021 Ark. App. 198, at 3, 623 S.W.3d 138, 140. A circuit court may
revoke a defendant’s probation or suspended sentence prior to expiration if the court finds
that the defendant inexcusably failed to comply with a condition of his or her probation.
Ark. Code Ann. § 16-93-308 (Repl. 2016); Miller v. State, 2011 Ark. App. 554, 386 S.W.3d
65. Evidence that would be insufficient for a new criminal conviction may be sufficient for
the revocation of probation. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001).
Arkansas Code Annotated section 16-93-308(d) provides that a court may revoke a probation
if the court finds by a preponderance of the evidence that the defendant has inexcusably
failed to comply with a condition of his probation. It is the State’s burden to prove a
violation. Yarberry v. State, 2021 Ark. App. 265. In this case, Shealy entered a plea of guilty
to possession of methamphetamine on January 9, 2023, and was sentenced to sixty months’
suspended imposition of sentence. Less than sixty days after his sentencing, he was arrested again for possession of 0.9 grams of methamphetamine and drug paraphernalia. Officer
Trout testified that Shealy had in his possession a white crystalline substance he recognized
as methamphetamine and that was verified by a drug field test as methamphetamine as well
as a glass pipe with burn marks and residue commonly used to smoke methamphetamine.
Possession of methamphetamine and drug paraphernalia are offenses punishable by
imprisonment, which was sufficient to show by a preponderance of the evidence that Shealy
had inexcusably violated the terms and conditions of his suspended sentence.
When Shealy was detained by Officer Trout, he was asked to identify himself, and he
provided his name to the officer and admitted he was under supervision on a suspended
sentence.
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Cite as 2024 Ark. App. 429 ARKANSAS COURT OF APPEALS DIVISION II NO. CR-24-56
Opinion Delivered September 18, 2024 CHARLES SHEALY APPEAL FROM THE CRAIGHEAD APPELLANT COUNTY CIRCUIT COURT, WESTERN DISTRICT V. [NO. 16JCR-22-566]
STATE OF ARKANSAS HONORABLE CHRIS THYER, JUDGE
APPELLEE AFFIRMED; REMANDED TO CORRECT SENTENCING ORDER
STEPHANIE POTTER BARRETT, Judge
Charles Shealy appeals an order of the Circuit Court of Craighead County finding
that he had violated the conditions of his suspended sentence and sentencing him to seventy-
two months in the Arkansas Division of Correction and placing him on an additional forty-
eight months’ suspended sentence. We affirm the revocation of his suspended sentence and
remand to correct the sentencing order.
On April 1, 2022, Charles Shealy was charged with possession of controlled
substance, methamphetamine, with intent to deliver, a Class C felony; possession of drug
paraphernalia; and possession of a misdemeanor amount of marijuana. On January 9, 2023,
Shealy pleaded guilty to possession of methamphetamine, more than two grams but less than
ten grams, and was sentenced to 120 days in jail and placed on sixty months’ suspended imposition of sentence (SIS). The charges of possession of drug paraphernalia and
possession of marijuana were dismissed pursuant to the plea agreement.
On March 1, 2023, less than sixty days after his plea of guilty to possession of
methamphetamine, Officer Greg Trout of the Jonesboro Police Department saw Shealy
riding a bicycle without a light at 11:00 p.m. in violation of Arkansas law. Shealy was stopped
for the violation, and Officer Trout asked him questions about his identity and whether he
was on probation or serving a suspended sentence. Shealy admitted to Officer Trout that he
was serving a suspended sentence, which was confirmed by a warrant check. The conditions
of Shealy’s suspended sentence gave Officer Trout authority to conduct a warrantless search
of his person and backpack. Officer Trout conducted a search of Shealy’s backpack and
found 0.9 grams of a crystal-like substance and a glass meth pipe with burn marks and
residue. A controlled-substance field test confirmed that the substance was
methamphetamine, and he was placed under arrest for possession of a controlled substance
and possession of drug paraphernalia.
A petition to revoke Shealy’s probation was filed on March 21, 2023, as the result of
the new charges of possession of methamphetamine, a Schedule II controlled substance, less
than two grams, a Class D felony; and possession of drug paraphernalia—namely, a glass
methamphetamine pipe, also a Class D felony. A hearing was held on the petition to revoke
on July 12, 2023. The circuit court took judicial notice of the case file, including Shealy’s
sentencing order and the signed terms and conditions of his suspended sentence. The
relevant terms of Shealy’s suspended sentence were that he must not commit a criminal offense punishable by imprisonment and must not use, sell, distribute, or possess any
controlled substance; and that he must submit his person, place of residence, motor vehicle,
or other property to search and seizure at any time, day or night, with or without a search
warrant, whenever requested by any supervising officer or law enforcement officer.
At the commencement of the hearing, Shealy made a motion for continuance arguing
that the court should defer disposition of the petition and give him an opportunity to
complete his rehabilitation. Shealy chose not to testify, and at the close of the State’s case,
he moved for directed verdict on the basis of what he argued was an extreme search and
failure to show by a preponderance of the evidence that he had violated the terms and
conditions of his suspended sentence. The circuit court denied the motion for directed
verdict, finding the State had established by a preponderance of the evidence that Shealy had
in his possession methamphetamine and drug paraphernalia and had proved Shealy had
inexcusably violated the terms and conditions of his suspended sentence. The court also
denied Shealy’s motion for a continuance to complete his drug rehabilitation. Shealy also
argued that he should have been given a jail sanction of 120 days rather than sentenced to
the Arkansas Division of Correction.
Shealy raised the following points on appeal: (1) that the State did not show by a
preponderance of the evidence that he had violated the terms and conditions of his
suspended sentence; (2) that the search was extreme and should be found unreasonable; (3)
that the court should have deferred sentencing until he could have completed drug rehabilitation; and (4) that he should have been given a jail sanction of no more than 120
days.
Upon review, at the close of all the evidence, Shealy moved for directed verdict,
arguing that the State had failed to show by a preponderance of the evidence that he had
inexcusably violated the terms and conditions of his suspended sentence. The motion was
denied by the circuit court. Motions for directed verdict are challenges to the sufficiency of
the evidence. Benson v. State, 357 Ark. 43, 160 S.W.3d 341 (2004); Holland v. State, 2017
Ark. App. 49, 510 S.W.3d 311. A preponderance of the evidence is convincing evidence
that is more probably accurate and true when weighed against the evidence opposed to it.
E.g., Sivils v. State, 2021 Ark. App. 198, at 3, 623 S.W.3d 138, 140. A circuit court may
revoke a defendant’s probation or suspended sentence prior to expiration if the court finds
that the defendant inexcusably failed to comply with a condition of his or her probation.
Ark. Code Ann. § 16-93-308 (Repl. 2016); Miller v. State, 2011 Ark. App. 554, 386 S.W.3d
65. Evidence that would be insufficient for a new criminal conviction may be sufficient for
the revocation of probation. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001).
Arkansas Code Annotated section 16-93-308(d) provides that a court may revoke a probation
if the court finds by a preponderance of the evidence that the defendant has inexcusably
failed to comply with a condition of his probation. It is the State’s burden to prove a
violation. Yarberry v. State, 2021 Ark. App. 265. In this case, Shealy entered a plea of guilty
to possession of methamphetamine on January 9, 2023, and was sentenced to sixty months’
suspended imposition of sentence. Less than sixty days after his sentencing, he was arrested again for possession of 0.9 grams of methamphetamine and drug paraphernalia. Officer
Trout testified that Shealy had in his possession a white crystalline substance he recognized
as methamphetamine and that was verified by a drug field test as methamphetamine as well
as a glass pipe with burn marks and residue commonly used to smoke methamphetamine.
Possession of methamphetamine and drug paraphernalia are offenses punishable by
imprisonment, which was sufficient to show by a preponderance of the evidence that Shealy
had inexcusably violated the terms and conditions of his suspended sentence.
When Shealy was detained by Officer Trout, he was asked to identify himself, and he
provided his name to the officer and admitted he was under supervision on a suspended
sentence. Officer Trout verified he was serving a suspended sentence and conducted a search
of Shealy and his backpack. Shealy argued that the search was extreme since the officer did
not have any reason to suspect that he possessed contraband on the basis of his stop for not
having a light on his bicycle. Arkansas Code Annotated section § 5-4-303(a)(1) (Supp. 2023)
provides that “[i]f a court suspends imposition of sentence on a defendant or places him or
her on probation, the court shall attach such conditions as are reasonably necessary to assist
the defendant in leading a law-abiding life.” The conditions of suspended sentence included
prohibitions on possessing controlled substances and committing any offense punishable by
imprisonment. Such suspicionless searches are reasonable under the law applicable to
Shealy’s suspended sentence and are constitutionally permissible. Johnson v. State, 2023 Ark.
App. 509, 679 S.W.3d 444. In United States v. Knights, 534 U.S. 112 (2001), the Supreme
Court held that the warrantless-search condition imposed on a probationer by the court was permissible because it encouraged “the hope that he will successfully complete probation
and be integrated back into the community” while also addressing the “concern, quite
justified, that he will be more likely to engage in criminal conduct than an ordinary member
of the community.” Id. at 120–21; see also Clingmon v. State, 2021 Ark. App. 107, 620 S.W.3d
184 (holding that, under Samson v. California, 547 U.S. 843, 850 (2006), warrantless search
of parolee’s residence did not require any reasonable suspicion and did not violate his
constitutional rights). In this case, Officer Trout did not conduct a search of Shealy or his
backpack until Shealy admitted that he was serving a suspended sentence, which Officer
Trout verified prior to the search. Upon searching Shealy’s backpack, officer Trout found a
glasses case containing 0.9 grams of a white crystalline substance that he recognized as
methamphetamine and drug paraphernalia consisting of a glass methamphetamine pipe with
burn marks and residue. A field test confirmed the white crystalline substance as
methamphetamine. We find that the warrantless search of Shealy’s backpack was
constitutionally permissible based on both Arkansas and federal case law for persons on
probation or suspended sentences.
Shealy requested that the court defer the disposition of the case to allow him to
complete his drug rehabilitation that he allegedly started four weeks prior to the revocation
hearing. Our standard of review from the denial of a continuance is well settled. A circuit
court shall grant a continuance only upon a showing of good cause and shall consider “not
only the request or consent of the prosecuting attorney or defense counsel, but also the
public interest in prompt disposition of the case.” Ark. R. Crim. P. 27.3 (2023); Hill v. State, 2015 Ark. App. 587, 473 S.W.3d 556. When a motion for continuance is based on a lack
of time to prepare, the reviewing court considers the totality of the circumstances. Hill, supra.
Here, Shealy did not allege that he did not have time to prepare for the hearing but sought
to have a continuance to purportedly continue a drug-rehabilitation treatment program. It
is within the circuit court’s discretion to grant or deny a motion for continuance, and this
court will not reverse the circuit court’s decision absent a clear abuse of discretion. Id. In
addition, an appellant must also demonstrate that he suffered prejudice that amounts to a
denial of justice because of the ruling on the motion for a continuance. Id. Shealy argued
he was prejudiced because “there was not consideration taken to allow him to finish the drug
rehabilitation program.” He concludes that “the rehabilitative nature of the justice system
was not upheld.” Other than counsel’s arguments, Shealy did not provide any evidence that
he was currently enrolled in a drug-treatment program or provide any progress reports that
would show “good cause” for a continuance on these grounds. A circuit court’s decision to
grant or deny a continuance will not be reversed absent an abuse of discretion amounting to
a denial of justice. Dye v. State, 2019 Ark. App. 234, 576 S.W.3d 73. An abuse of discretion
occurs when the circuit court acts improvidently or thoughtlessly, without due consideration.
Milner v. Luttrell, 2011 Ark. App. 297, 384 S.W.3d 1. We find no abuse of discretion in the
denial of additional time to complete drug rehabilitation because Shealy presented no proof
as to his status in a drug-rehabilitation program.
Shealy also argued he should be given a jail sanction of not more than 120 days as an
alternative sentence and be placed back on his suspended sentence rather than sentenced to the Arkansas Division of Correction. In a revocation proceeding, the circuit court has
discretion in sentencing and is authorized to impose any sentence that it could have
originally imposed. Perkins v. State, 2024 Ark. App. 169, 686 S.W.3d 569. A defendant who
is sentenced within the statutory range and short of the maximum sentence cannot establish
prejudice. Id. The decision to allow alternative sentencing is reviewed for an abuse of
discretion, which is a high threshold requiring that a circuit court act improvidently,
thoughtlessly, or without due consideration. Winston v. State, 2024 Ark. App. 24, 683
S.W.3d 195; Kennedy v. State, 2024 Ark. App. 382. The court took into consideration
Shealy’s two prior violent felony convictions and the fact that it had been less than sixty days
from the date of his conviction for possession of methamphetamine. After arguments of
counsel regarding the alternative sentence, the circuit court imposed a sentence of seventy-
two months in the Arkansas Division of Correction with a suspended sentence of forty-eight
months after his release. We find that the circuit court did not abuse its discretion in
denying Shealy’s request for an alternative sentence, considering his past criminal history
and the fact that this offense occurred less than sixty days after he was placed on a suspended
sentence on the original charge of possession of methamphetamine. Jefferies v. State, 2022
Ark. App. 359.
In reviewing the sentencing order, we take notice sua sponte that the sentence
imposed on Shealy is illegal on its face because the sentence exceeds the statutory maximum
for the offense for which he was convicted when added to the 120 days imposed previously.
Upon revocation, Shealy may be resentenced to imprisonment for a period that, when added to the term of imprisonment that was previously imposed, does not exceed ten years. Ward
v. State, 2016 Ark. 8, 479 S.W.3d 9. In this case, the first sentencing order imposed 120
days in jail; Thus, upon revocation, appellant’s sentence, when combined with his previous
sentence imposed of 120 days’ imprisonment, could not exceed ten years. Yet, appellant was
sentenced to 72 months’ imprisonment and an additional 48 months’ SIS (a total of ten
years) not accounting for his previous imposed sentence of 120 days’
imprisonment. Accordingly, I recommend that we remand for resentencing. See Stanley v.
State, 2022 Ark. App. 298, at 2-3.
Affirmed; remanded to correct sentencing order.
WOOD and HIXSON, JJ., agree.
Terry Goodwin Jones, for appellant.
Tim Griffin, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.