Hogue v. State

2013 Ark. App. 638

• Court: Court of Appeals of Arkansas
• Decided: November 6, 2013
• Docket: CR-12-1123
• Status: Published

Opinion

Cite as 2013 Ark. App. 638

ARKANSAS COURT OF APPEALS DIVISION II No. CR-12-1123

Opinion Delivered November 6, 2013

JOSHUA E. HOGUE APPEAL FROM THE JOHNSON APPELLANT COUNTY CIRCUIT COURT [NO. CR-2011-11] V. HONORABLE WILLIAM M. PEARSON, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; MOTION TO BE RELIEVED GRANTED

ROBIN F. WYNNE, Judge

Joshua Hogue appeals from the revocation of his probation. His counsel has filed a

motion to be relieved as counsel and a no-merit brief pursuant to Anders v. California, 386

U.S. 738 (1967), and Rule 4-3(k)1 of the Rules of the Arkansas Supreme Court and Court

of Appeals on the ground that the appeal is wholly without merit. Hogue has filed pro se

points for reversal, and the State has filed a response brief. We affirm and grant counsel’s

motion.

On July 22, 2011, Hogue pled guilty to possession of a controlled substance with

intent to deliver (marijuana) (a Class C felony), possession of drug paraphernalia (a Class C

felony), and possession of a firearm by certain persons (a Class D felony). He was sentenced

1 Counsel erroneously cites Rule 4-3(j), which governs the preparation of briefs for indigent appellants, rather than Rule 4-3(k). Cite as 2013 Ark. App. 638

to eighty-four months’ probation for possession of drug paraphernalia and sixty months’

probation for each of the other two counts; he was also fined $850 and assessed various costs

and fees, as well as a monthly probation fee of $25, to be paid in regular monthly payments

of $65 beginning August 22, 2011. Hogue signed an acknowledgment of his conditions of

probation, which included the requirements that he not commit a criminal offense

punishable by imprisonment and that he make regular monthly payments in the amount of

$65.

On August 14, 2012, the State filed a petition for revocation, alleging that Hogue had

violated the conditions of his probation by failing to pay fines, probation fees, and court costs

and by committing a criminal offense punishable by imprisonment. At the revocation

hearing on September 7, 2012, Hogue’s probation officer, Wendy Phillips, testified that she

personally went over the written conditions of probation with Hogue. Regarding his

required payments, Phillips testified that she requested that the court waive Hogue’s

probation fee, so he was required to pay $40 a month on his fine and court costs, beginning

August 2011. She testified that he had not made any payments. Phillips further testified that

during a conference that included her supervisor, Hogue, and herself, Hogue admitted that

he was selling drugs to make money. She was present when an arrest warrant was executed

on Hogue.

Shannon Holman of the Fifth Judicial District Drug Task Force testified that on

August 3, 2012, he executed an arrest warrant on Hogue for one count of delivery of

methamphetamine. He stated that during the arrest at a residence in Lamar, Hogue was

found in a bedroom, lying directly on top of a .38 caliber revolver, which was stolen, and

2 Cite as 2013 Ark. App. 638

next to a bag that contained a syringe with methamphetamine inside. After the arrest, Hogue

was Mirandized and signed a Miranda form. Hogue stated that he had used

methamphetamine about four days earlier. He also stated that he did not know where the

gun came from.

Next, Hogue testified that during the period of time that he failed to pay, he was

physically unable to work after he had been run over by a pickup truck—resulting in his left

leg being “ripped off”; having a carbon fiber hip put in; having four titanium plates put in

his lower left leg; having a plastic ankle put in; and having a titanium plate put in his forehead

and a steel mesh sinus cavity put in. He testified that he was still unable to work but had

been unable to obtain disability benefits after being denied twice because he was in jail and

missed appointments. He admitted to making the statement on August 8 that he was living

as a drug dealer, but he claimed that he was being a “smart aleck” and did not mean it as a

truthful statement.

At the conclusion of the hearing, the court found that Hogue had violated the

conditions of his probation by failing to pay as ordered and committing the new criminal

offenses of selling drugs and being a felon in possession of a firearm. In an order entered on

September 26, 2012, the court revoked Hogue’s probation and sentenced him to ten years

in the Arkansas Department of Correction on the Class C felonies and six years on the Class

D felony, to run concurrently. This appeal followed.

In the appellant’s brief, counsel asserts that there are no meritorious grounds for

reversal. Counsel correctly points out that there were no objections made during the

revocation hearing, and the only adverse ruling is therefore the revocation decision itself.

3 Cite as 2013 Ark. App. 638

In a revocation hearing, the State is obligated to prove by a preponderance of the evidence

a violation of a term or condition of the defendant’s probation. Scroggins v. State, 2012 Ark.

App. 87, at 9, 389 S.W.3d 40, 45. The State’s burden is not as great in a revocation hearing

as it is in a criminal proceeding; therefore, evidence that is insufficient for a criminal

conviction may be sufficient for revocation. Cannon v. State, 2010 Ark. App. 698, 379

S.W.3d 561. We do not reverse a trial court’s findings on appeal unless they are clearly

against the preponderance of the evidence. Id.

Here, we agree that there was sufficient evidence from which the trial court could

have found by a preponderance of the evidence that Hogue had violated the conditions of

his probation. The testimony of the arresting officer placed Hogue in possession of a firearm

and within arm’s reach of methamphetamine. Although Hogue testified and offered reasons

for his failure to pay, the court was not required to find that his failure to pay was justifiable.

Hogue makes the following arguments in his pro se points: 1) trial counsel was

ineffective for failing to challenge the petition for revocation that was undated and signed in

the name of the deputy prosecuting attorney; 2) Hogue was twice placed in jeopardy when

the court entered its order that entered findings of guilt to the original charges and

resentenced him; 3) the written judgment does not reflect the sentence that was announced

in open court; and 4) trial counsel was ineffective for failing to subpoena Hogue’s medical

and mental-health records in relation to the head injury that he suffered in a near-fatal car

accident.

First, the two points in which Hogue argues that his trial counsel was ineffective were

not raised below. It is well settled that our appellate courts will not consider ineffective

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assistance as a point on direct appeal unless that issue has been considered by the trial court.

Ratchford v. State, 357 Ark. 27, 31, 159 S.W.3d 304, 306–07 (2004). Therefore, we do not

address those arguments.

Next, we agree with the State that Hogue’s double-jeopardy argument is without

merit. Revocation proceedings are not considered a stage of a criminal prosecution and,

thus, do not subject a criminal defendant to double jeopardy. Walton v. State, 2013 Ark. 265,

at 4.

Finally, Hogue argues that the written judgment does not reflect the sentence that the

judge stated at the revocation hearing, specifically regarding his financial obligations. As the

State points out, even if there were a discrepancy between the court’s pronouncement of

sentence from the bench and the written judgment, a circuit court retains jurisdiction and

may modify its pronounced sentence prior to entry of the sentencing order. Marshall v. State,

2010 Ark. 500 (citing Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003)).

Affirmed; motion to be relieved as counsel granted.

GLOVER and VAUGHT, JJ., agree.

John C. Burnett, for appellant.

Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.