Collins v. State

2015 Ark. App. 600, 474 S.W.3d 531, 2015 Ark. App. LEXIS 700
CourtCourt of Appeals of Arkansas
DecidedOctober 28, 2015
DocketCR-15-157
StatusPublished
Cited by1 cases

This text of 2015 Ark. App. 600 (Collins 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
Collins v. State, 2015 Ark. App. 600, 474 S.W.3d 531, 2015 Ark. App. LEXIS 700 (Ark. Ct. App. 2015).

Opinion

ROBERT J. GLADWIN, Chief Judge

11Appellant Jackie Collins appeals from the revocation of his probation by the Crit-tenden County Circuit Court. Appellant argues that the trial court’s findings that ,he violated two of the conditions of his probationary sentence are against the preponderance of the evidence. We affirm.

On January 31, 2005, appellant pleaded • guilty to burglary, a Class B felony, in the Crittenden County Circuit Court, case number CR-2004-1090, and was sentenced to forty-eight months’ probation. On July 7, 2005, the State filed a petition for revocation of probation, and on September 8, 2005, appellant pleaded guilty to the revocation and was sentenced to 120 months’ imprisonment in the Arkansas Department of Correction (ADC), with the imposition of an additional suspended sentence of 120 months.

Appellant was released on parole on November 4, 2008. ■ The State filed its petition for revocation of suspended sentence, on August 18, 2014,, alleging the following violations: |¾(1) failure to pay fines, costs, and fees as directed; (2) failure to notify sheriff of current address and employment; and (3) commission of residential burglary and theft of property. After a hearing on November 26, 2014, appellant was found to have violated two conditions of his probation, (1) failure to pay fines, costs, and fees, and (2) failure to lead .a law-abiding life, and was sentenced to 120 months in the ADC pursuant to a sentencing order filed on November 26, 2014. He filed a timely notice of appeal on December 9,2014.

In a revocation proceeding, the trial court must find by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspension or probation, and on appellate review, we do not reverse the trial court’s decision unless it is clearly against the preponderance of the evidence. Egger v. State, 2015 Ark. App. 471, 469 S.W.3d 811; Ark. Code Ann. § 16-93-308(d) (Supp. 2015). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation or suspended-sentence revocation. Id. Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial court’s •superior position. Id. Furthermore, the State need only prove that the ■ appellant committed one violation of the conditions in order.to revoke appellant’s sentence. Peals v. State, 2015 Ark. App. 1, 453 S.W.3d 151.

I. . Failure to Pay Costs, , Fines, and Fees

Where the alleged violation involves the failure to pay ordered amounts, and the State has introduced evidence of nonpayment, the burden shifts to the probationer to provide-a reasonable excuse for the failure to pay. Truitt v. State, 2015 Ark. App. 276, 2015 WL 1954067. It is the 1 ..¡probationer's obligation to, justify his failure to pay, and this shifting of the burden of production: provides an opportunity to explain the reasons for nonpayment. Id. The State,, however, shoulders the ultimate burden of proving that the probationer’s failure to pay was. inexcusable. Id.

Arkansas. Code Annotated section 16-93-308(d) states, “If a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspension or probation, the court may revoke the suspension or probation at any time prior to the expiration of the period of suspension or .probation.”

Condition number one of appellant’s conditions of suspended imposition of sentence required him to “pay all finés, court costs, and restitution.” Amy Peyton, the collector of fines for the Crittenden County Sheriffs Department, testifiéd that she received documentation reflecting the following fines and costs assessed against appellant: (1) $750 in. fines; ' (2) $750 in fees under the original conviction; and (3) $500 in costs and fees from the first revocation. Ms. Peyton testified that she had not received any payments from appellant since the first revocation hearing. She further stated that appellant had not contacted her at all since .2008 to apprise her of where he was working, where he was living, or when he would begin paying his fines and costs. A copy of the computer-generated account that is kept -at the sheriff s -office, along with the corresponding ledger sheet, and the criminal cost bill from the trial court reflecting the amounts that Ms. Peyton testified to were introduced into evidence without .objection.

|4AppelIant testified that,. upon his release on parole, he was employed with Delta Ice Service and Southland Greyhound Park. ■ Appellant acknowledged that, despite being able to pay his fines, he failed to do so. He testified that he “didn’t have no idea about [the fines]” and that he may have “lost [his] paperwork or something like that.” Appellant testified that' he was paying his parole fee. On cross-examination, appellant admitted that he had signed the conditions of suspended imposition of sentence. - He also testified that the required costs sounded “familiar.” Appellant conceded that he never called the sheriff s office to discuss his costs and fines and said he “never had no clue about that ... I was just thinking about parole fees.... ”

No testimony was offered through the parole officer, Ms. Mary Marshall, that he was.behind on his parole.payments, and appellant submits that his testimony was in harmony with that of Ms. Peyton in all respects. He maintains that his faithful payment of his parole fees, coupled with his evident ability and willingness to pay, constituted a “reasonable excuse” for his failure to pay. , .

We disagree. Through the testimony of Ms. Peyton and appellant, the State established that appellant violated the first condition of his suspension — that he pay all fines, costs, and-restitution — and this single violation justifies revocation. See Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Because the State offered evidence of nonpayment, the burden shifted to appellant to justify his failure- to pay. See Truitt, supra. As the case law makes clear, appellant’s alleged confusion over the owed amounts does not justify his nonpayment. See, e.g., Burkhart v. State, 2010 Ark. App. 462, at 5, 2010 WL 2195755 (holding that defendant’s alleged | ^confusion about her obligation to make payments did not constitute a sufficient excuse for her failure to pay).'

Additionally, we defer to the trial court’s superior position regarding questions of credibility and the weight to be given testimony and, after hearing the testimony of Ms. Peyton and appellant, the trial court found that appellant had violated the conditions of his suspended sentence by “never pay[ing] any money....” Therefore, the'trial court’s determination that appellant inexcusably failed to pay his costs, fines, and fees is not clearly against the preponderance of the evidence, and we affirm. ■

II. Commission of Theft

Additionally, appellant argues that the trial court clearly erred by finding that he committed theft, which was contrary to the preponderance of the evidence.

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Clark v. State
2016 Ark. App. 383 (Court of Appeals of Arkansas, 2016)

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Bluebook (online)
2015 Ark. App. 600, 474 S.W.3d 531, 2015 Ark. App. LEXIS 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-state-arkctapp-2015.