Corey Hobbs v. State of Arkansas

2020 Ark. App. 400

• Court: Court of Appeals of Arkansas
• Decided: September 16, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 400 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-09 08:31:56 DIVISION II Foxit PhantomPDF Version: No. CR-19-966 9.7.5

OPINION DELIVERED: SEPTEMBER 16, 2020 COREY HOBBS APPELLANT APPEAL FROM THE CLAY COUNTY CIRCUIT COURT, EASTERN DISTRICT V. [NO. 11PCR-15-95]

HONORABLE PAMELA STATE OF ARKANSAS HONEYCUTT, JUDGE APPELLEE AFFIRMED

ROBERT J. GLADWIN, Judge

Corey Hobbs appeals the revocation of his suspended imposition of sentence (SIS)

by the Clay County Circuit Court. He argues that the circuit court abused its discretion by

denying his motion for a continuance because he had insufficient time to prepare a defense.

We affirm.

I. Facts and Procedural History

On January 15, 2016, Hobbs entered a plea of guilty to charges of possession of a

controlled substance and possession of drug paraphernalia for which he was sentenced to

forty-two months’ imprisonment plus sixty months’ SIS, to run consecutively. Among the

terms and conditions of his SIS were requirements that he (1) not commit any other felony

criminal offenses; (2) report as directed by his Arkansas Community Correction (ACC)

supervising officer; and (3) not associate with known felons. On June 24, 2019, a supplemental petition to revoke Hobbs’s SIS was filed by the

State after its initial petition filed on June 7, alleging that Hobbs had (1) failed to live a law-

abiding life by receiving new criminal charges of possession of paraphernalia to manufacture,

etc., methamphetamine or cocaine; possession of drug paraphernalia to ingest, inhale, etc.;

and possession of a controlled substance Schedule VI less than four ounces; (2) failed to pay

fines and costs; (3) failed to pay monthly probation fees; (4) failed to maintain employment;

(5) been arrested for new felony and/or misdemeanor charges; (6) associated with known

felons.

On June 27, Hobbs first appeared for a probable-cause hearing. The circuit court

found that (1) there was probable cause to hold Hobbs on the petition to revoke, and (2)

Hobbs was not indigent and not entitled to court-appointed counsel. His revocation hearing

was set for July 12, but it was rescheduled for July 22. On July 22, Hobbs appeared and

advised the circuit court that he was suffering from kidney stones and provided a medical

statement by a physician that supported his claim. The public defender, Kirk Lonidier,

signed as attorney for Hobbs and stood with Hobbs as he explained his medical condition

to the circuit court. The same day, Hobbs also executed a voluntary statement in which he

admitted using methamphetamine and smoking “weed” six days earlier and having

previously failed a drug screen.

On July 25, the State filed an amended petition to revoke, alleging Hobbs had failed

to (1) live a law-abiding life; (2) be of good behavior and not violate any laws of the State

of Arkansas; (3) report as directed; (4) pass drug screens; (5) pay fines, cost, and fees; (6)

maintain employment; and (7) report a change of address. The petition further alleged that

2 Hobbs had committed two counts of possession of drug paraphernalia and one count of

possession of a controlled substance. The revocation hearing was rescheduled for July 29.

On July 29, Mr. Lonidier again appeared with Hobbs at the revocation hearing.

Hobbs complained to the circuit court that there had been some confusion regarding the

appointment of Mr. Lonidier and that he did not think he was “being represented properly.”

The circuit court proceeded with the revocation hearing, noting that the hearing scheduled

for July 22 had been continued due to Hobbs’s health and that the same witnesses who

appeared for that hearing currently were present and ready to testify.

At the conclusion of the hearing, the circuit court found that Hobbs had violated the

conditions of his SIS by (1) committing new criminal offenses; (2) associating with known

felons; and (3) failing to report as directed by his ACC supervising officer. Hobbs was

sentenced to four years in the Arkansas Department of Correction followed by two years of

SIS pursuant to a sentencing order filed on July 29. Hobbs filed a timely notice of appeal on

August 28.

II. Standard of Review

We review the denial of a request for continuance for abuse of discretion. Harmon v.

State, 2020 Ark. 217, at 8, 600 S.W.3d 586, 591; see also Thorne v. State, 269 Ark. 556, 560,

602 S.W.2d 886, 889 (1980). Every denial of a request for more time does not violate due

process or Constitutional mandates. Thorne, supra. Hobbs bears the burden of establishing

that the circuit court abused its discretion in denying the motion and that he suffered

prejudice amounting to a denial of justice. Harper v. State, 2019 Ark. App. 163, at 8, 573

S.W.3d 596, 601–02.

3 III. Discussion

Hobbs initially notes that the record in this case does not reflect a specific

appointment of the public defender, Mr. Lonidier, to his case. On the day of the revocation

hearing, the State indicated on the record that there was a scheduling order signed by the

public defender but acknowledged that it was unclear whether the appointment was

addressed on the docket sheet. Hobbs stated that he believed Mr. Lonidier had been

appointed the entire time but stated that when he went to the public defender’s office, he

was told that no appointment had been made. Hobbs then submitted to the circuit court

that he believed he was not being properly represented. Hobbs argues (1) that the circuit

court abused its discretion when it failed to definitively state and note in the record that

Mr. Lonidier had been appointed prior to the date of the revocation hearing, and further,

(2) that despite the late appointment, denied his request for a continuance of the hearing to

allow him to develop an appropriate defense.

Hobbs submits that before matters were put on the record, when the issue of the

appointment of the public defender was being discussed and the circuit court determined

that there had been an appointment, Mr. Lonidier then verbally requested that the matter

be continued. Hobbs urges that the circuit court abused its discretion in not allowing him

a continuance to allow for adequate time to prepare a proper defense.

We disagree and hold that Hobbs’s claim that the circuit court erred by denying his

motion to continue the revocation hearing is not preserved for appellate review. Hobbs

incorrectly asserts that Mr. Lonidier made an off-the-record motion to continue the hearing.

Hobbs’s claim is not preserved because the record indicates that no specific request for a

4 continuance was ever made on the record. The record reflects that Hobbs expressed to the

circuit court that he felt he was not being “properly represented”—this does not constitute

a request for a continuance. When appealing a revocation, procedural challenges must be

raised at trial in order to preserve the argument for appellate review. Justus v. State, 2019

Ark. App. 67, at 3, 568 S.W.3d 799, 800.

Affirmed.

VIRDEN and WHITEAKER, JJ., agree.

Skarda & Lonidier P.L.L.C., by: Kirk B. Lonidier, Clay County Deputy Public

Defender, for appellant.

Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.