Cite as 2013 Ark. App. 613
ARKANSAS COURT OF APPEALS DIVISION II No. CR-13-318
Opinion Delivered October 30, 2013
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT LEROY HASKINS SMITH DISTRICT APPELLANT [NOS. CR-02-659, CR-02-893, CR-08- 154, CR-12-249] V. HONORABLE J. MICHAEL FITZHUGH, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
ROBIN F. WYNNE, Judge
Leroy Haskins appeals from the revocation of his suspended sentences by the Sebastian
County Circuit Court. He argues that the trial court erred by denying his motion to dismiss
and by denying his motion for a continuance. We disagree and affirm.
In August 2003, appellant pled guilty to possession of methamphetamine, possession
of drug paraphernalia, possession of marijuana, and obtaining a controlled substance by fraud.
He was sentenced to two years’ imprisonment and eight years’ suspended imposition of
sentence. As a condition of his suspended sentence, appellant was required to refrain from
violating any federal, state, or municipal law. In June 2010, appellant pled guilty to possession
of marijuana with intent to deliver and possession of drug paraphernalia. He was sentenced
to five years’ imprisonment and five years’ suspended imposition of sentence. The terms and Cite as 2013 Ark. App. 613
conditions of his suspended imposition of sentence required him to refrain from violating any
federal, state, or municipal law and pay a $100 public-defender fee. In April 2012, appellant
pled guilty to charges of possession of drug paraphernalia and possession of hydrocodone. He
was sentenced to two years’ imprisonment and four years’ suspended imposition of sentence.
He was again required to refrain from violating any federal, state, or municipal law as part of
the terms and conditions of his suspended imposition of sentence.
The State filed a petition to revoke on January 22, 2013, in which it alleged that
appellant violated the terms and conditions of his suspended sentences by committing the
offense of delivery of methamphetamine on two occasions and failing to pay his public-
defender fee. The hearing on the petition to revoke was held on March 6, 2013.
Approximately one minute before the hearing was set to begin, appellant requested a
continuance in order to replace his public defender with a private attorney. The State
objected to the continuance, stating that it had five officers who had been subpoenaed and
were present to testify. Although appellant stated that he had hired another attorney, the clerk
of the court informed the trial judge that no entry of appearance had been filed. The trial
court denied the motion, stating that the petition was filed on January 22, 2013, the hearing
had been set on February 15, 2013, the continuance was not requested until one minute
before the hearing was set to begin, and the court believed appellant was manipulating the
system.
Detective Donnie Ware with the Fort Smith Police Department testified that he and
other investigators used a confidential informant to purchase methamphetamine from
2 Cite as 2013 Ark. App. 613
appellant on October 29, 2012. The informant was searched and provided a wire transmitter
and hidden camera. Detective Ware maintained sight of the informant for ninety-five percent
of the trip to appellant’s location. The informant arrived at a residence identified as belonging
to appellant’s mother where a brief conversation took place between appellant and the
informant in the driveway of the residence, after which the informant left. After the
encounter with appellant, the informant had a substance determined to be methamphetamine
in his possession. During the transaction, Detective Ware could not see the participants, but
he could hear the deal over the wire. The informant remained in his sight for the entire trip
back to the meeting location. Detective Ware testified that the same sequence of events
occurred on October 31, 2012.
Sergeant Joe Lawson with the Fort Smith Police Department testified that he was
present at the scene of the transaction on October 29. He saw appellant in front of the house
at the time of the transaction and saw appellant driving a car that had been parked in front of
the residence. The State presented no evidence regarding appellant’s alleged failure to pay his
public-defender fee.
After the State’s case, appellant made a motion to dismiss, arguing that the State failed
to make a prima facie case that he was the one involved in the delivery of the
methamphetamine. The trial court denied the motion. At the conclusion of the hearing, the
trial court found by a preponderance of the evidence that appellant violated the terms of his
suspended sentences. The trial court sentenced appellant to a total of twenty-two years’
imprisonment and sixteen years’ suspended imposition of sentence. This appeal followed.
3 Cite as 2013 Ark. App. 613
Appellant’s first point on appeal is that the trial court erred by denying his motion to
dismiss because the State failed to prove that he committed the offense of delivery of
methamphetamine. In order to prevail on a petition to revoke, the State must prove by a
preponderance of the evidence that the defendant inexcusably violated at least one condition
of his probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2011); Coupey v. State, 2013 Ark.
App. 446. We will reverse an order of revocation only if the trial court’s findings are clearly
against the preponderance of the evidence, and we defer to the trial court’s superior
opportunity to assess witness credibility in determining where the preponderance of the
evidence lies. Coupey, supra.
Appellant argues that the State failed to meet its burden of proof because none of the
witnesses who testified identified appellant as a participant in the transaction, and the
confidential informant did not testify. Appellant contends that the facts in this case are very
similar to those presented in Slater v. State, 2011 Ark. App. 213, 382 S.W.3d 771. In Slater,
we held that the evidence was insufficient to support the defendant’s conviction for delivery
of cocaine. Our holding in Slater was based on the fact that the informant did not testify at
trial, neither of the surveillance officers saw the drug buy take place, no camera recorded the
buy, the audio recording did not evidence any exchange between any of the men recorded,
the informant came into contact with more than one potential seller, and the informant was
out of officer view when he was inside a shop with an unidentified person before the
defendant ever appeared on the scene.
4 Cite as 2013 Ark. App. 613
This case is distinguishable from Slater. Slater involved a conviction for delivery of a
controlled substance; this case is an appeal from a revocation. The State’s burden of proof in
a revocation proceeding is less than that required to convict in a criminal trial, and evidence
that is insufficient for a conviction thus may be sufficient for a revocation of probation.
Mahomes v. State, 2013 Ark. App. 215, __ S.W.3d __. Also, in this case, although the
informant did not testify, a detective heard the transaction take place over a wire, there was
only one potential seller at the location, which was a house belonging to appellant’s mother,
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Cite as 2013 Ark. App. 613
ARKANSAS COURT OF APPEALS DIVISION II No. CR-13-318
Opinion Delivered October 30, 2013
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT LEROY HASKINS SMITH DISTRICT APPELLANT [NOS. CR-02-659, CR-02-893, CR-08- 154, CR-12-249] V. HONORABLE J. MICHAEL FITZHUGH, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
ROBIN F. WYNNE, Judge
Leroy Haskins appeals from the revocation of his suspended sentences by the Sebastian
County Circuit Court. He argues that the trial court erred by denying his motion to dismiss
and by denying his motion for a continuance. We disagree and affirm.
In August 2003, appellant pled guilty to possession of methamphetamine, possession
of drug paraphernalia, possession of marijuana, and obtaining a controlled substance by fraud.
He was sentenced to two years’ imprisonment and eight years’ suspended imposition of
sentence. As a condition of his suspended sentence, appellant was required to refrain from
violating any federal, state, or municipal law. In June 2010, appellant pled guilty to possession
of marijuana with intent to deliver and possession of drug paraphernalia. He was sentenced
to five years’ imprisonment and five years’ suspended imposition of sentence. The terms and Cite as 2013 Ark. App. 613
conditions of his suspended imposition of sentence required him to refrain from violating any
federal, state, or municipal law and pay a $100 public-defender fee. In April 2012, appellant
pled guilty to charges of possession of drug paraphernalia and possession of hydrocodone. He
was sentenced to two years’ imprisonment and four years’ suspended imposition of sentence.
He was again required to refrain from violating any federal, state, or municipal law as part of
the terms and conditions of his suspended imposition of sentence.
The State filed a petition to revoke on January 22, 2013, in which it alleged that
appellant violated the terms and conditions of his suspended sentences by committing the
offense of delivery of methamphetamine on two occasions and failing to pay his public-
defender fee. The hearing on the petition to revoke was held on March 6, 2013.
Approximately one minute before the hearing was set to begin, appellant requested a
continuance in order to replace his public defender with a private attorney. The State
objected to the continuance, stating that it had five officers who had been subpoenaed and
were present to testify. Although appellant stated that he had hired another attorney, the clerk
of the court informed the trial judge that no entry of appearance had been filed. The trial
court denied the motion, stating that the petition was filed on January 22, 2013, the hearing
had been set on February 15, 2013, the continuance was not requested until one minute
before the hearing was set to begin, and the court believed appellant was manipulating the
system.
Detective Donnie Ware with the Fort Smith Police Department testified that he and
other investigators used a confidential informant to purchase methamphetamine from
2 Cite as 2013 Ark. App. 613
appellant on October 29, 2012. The informant was searched and provided a wire transmitter
and hidden camera. Detective Ware maintained sight of the informant for ninety-five percent
of the trip to appellant’s location. The informant arrived at a residence identified as belonging
to appellant’s mother where a brief conversation took place between appellant and the
informant in the driveway of the residence, after which the informant left. After the
encounter with appellant, the informant had a substance determined to be methamphetamine
in his possession. During the transaction, Detective Ware could not see the participants, but
he could hear the deal over the wire. The informant remained in his sight for the entire trip
back to the meeting location. Detective Ware testified that the same sequence of events
occurred on October 31, 2012.
Sergeant Joe Lawson with the Fort Smith Police Department testified that he was
present at the scene of the transaction on October 29. He saw appellant in front of the house
at the time of the transaction and saw appellant driving a car that had been parked in front of
the residence. The State presented no evidence regarding appellant’s alleged failure to pay his
public-defender fee.
After the State’s case, appellant made a motion to dismiss, arguing that the State failed
to make a prima facie case that he was the one involved in the delivery of the
methamphetamine. The trial court denied the motion. At the conclusion of the hearing, the
trial court found by a preponderance of the evidence that appellant violated the terms of his
suspended sentences. The trial court sentenced appellant to a total of twenty-two years’
imprisonment and sixteen years’ suspended imposition of sentence. This appeal followed.
3 Cite as 2013 Ark. App. 613
Appellant’s first point on appeal is that the trial court erred by denying his motion to
dismiss because the State failed to prove that he committed the offense of delivery of
methamphetamine. In order to prevail on a petition to revoke, the State must prove by a
preponderance of the evidence that the defendant inexcusably violated at least one condition
of his probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2011); Coupey v. State, 2013 Ark.
App. 446. We will reverse an order of revocation only if the trial court’s findings are clearly
against the preponderance of the evidence, and we defer to the trial court’s superior
opportunity to assess witness credibility in determining where the preponderance of the
evidence lies. Coupey, supra.
Appellant argues that the State failed to meet its burden of proof because none of the
witnesses who testified identified appellant as a participant in the transaction, and the
confidential informant did not testify. Appellant contends that the facts in this case are very
similar to those presented in Slater v. State, 2011 Ark. App. 213, 382 S.W.3d 771. In Slater,
we held that the evidence was insufficient to support the defendant’s conviction for delivery
of cocaine. Our holding in Slater was based on the fact that the informant did not testify at
trial, neither of the surveillance officers saw the drug buy take place, no camera recorded the
buy, the audio recording did not evidence any exchange between any of the men recorded,
the informant came into contact with more than one potential seller, and the informant was
out of officer view when he was inside a shop with an unidentified person before the
defendant ever appeared on the scene.
4 Cite as 2013 Ark. App. 613
This case is distinguishable from Slater. Slater involved a conviction for delivery of a
controlled substance; this case is an appeal from a revocation. The State’s burden of proof in
a revocation proceeding is less than that required to convict in a criminal trial, and evidence
that is insufficient for a conviction thus may be sufficient for a revocation of probation.
Mahomes v. State, 2013 Ark. App. 215, __ S.W.3d __. Also, in this case, although the
informant did not testify, a detective heard the transaction take place over a wire, there was
only one potential seller at the location, which was a house belonging to appellant’s mother,
and the individual who met with the informant at the location of the sale was identified as
appellant. The trial court’s finding that appellant violated the terms of his suspended sentences
by committing the offense of delivery of methamphetamine was not against the
preponderance of the evidence. We affirm on this point.
Appellant’s second point on appeal is that the trial court violated his right to choice of
counsel by denying his motion for a continuance. We review the grant or denial of a motion
for continuance under an abuse-of-discretion standard. Smith v. State, 2012 Ark. App. 613.
Our supreme court has stated that, once competent counsel has been obtained, any request
for a change in counsel must be balanced against the public’s interest in the prompt
dispensation of justice. Arroyo v. State, 2013 Ark. 244, __ S.W.3d __. The right to counsel
may not be manipulated or subverted to obstruct the orderly procedures of the court, or to
interfere with the fair, efficient, and effective administration of justice, particularly when a
change of counsel is made on the eve of trial, primarily for the purpose of delay, and without
making any effort to obtain substitute counsel. Id. In each situation the court must look at
5 Cite as 2013 Ark. App. 613
the particular circumstances of the case at bar, and the issue must be decided on a case-by-case
basis. Id. Factors to be considered by the circuit court include whether there was adequate
opportunity for the defendant to employ counsel; whether other continuances have been
requested and granted; the length of the requested delay; whether the requested delay is for
legitimate reasons; whether the motion for a continuance was timely filed; whether the
defendant contributed to the circumstances giving rise to the request for a continuance;
whether the reason for the discharge of existing counsel was solely for the purpose of
obtaining a continuance; and whether the request was consistent with the fair, efficient, and
effective administration of justice. Id.
In this case, appellant did not ask for a continuance until immediately before the
hearing on the petition to revoke was set to begin, despite the fact that he had been aware of
the hearing date for several weeks. Appellant’s public defender did not provide a reason why
appellant was dissatisfied with her representation. Appellant indicated to his public defender
that he had hired another attorney, but there was no proof that this was the case and no entry
of appearance had been made by any other attorney, despite the immediacy of the hearing.
The State had subpoenaed five officers who were present and prepared to testify. In light of
these circumstances, the trial court concluded that appellant was merely attempting to
manipulate the system by requesting a continuance. We hold that the denial of appellant’s
motion did not constitute an abuse of discretion and affirm on this point as well.
Affirmed.
GLOVER and VAUGHT, JJ., agree.
Snively Law Firm, by: Nick Churchill, for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.