Makinson v. State

2018 Ark. App. 535, 564 S.W.3d 291
CourtCourt of Appeals of Arkansas
DecidedNovember 7, 2018
DocketNo. CR-18-352
StatusPublished

This text of 2018 Ark. App. 535 (Makinson 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
Makinson v. State, 2018 Ark. App. 535, 564 S.W.3d 291 (Ark. Ct. App. 2018).

Opinion

BART F. VIRDEN, Judge

The Crawford County Circuit Court revoked appellant Joseph Makinson's suspended imposition of sentence (SIS) upon finding that he had violated the terms and conditions of his suspended sentence by failing to pay child support, restitution, a fine, costs, and fees. He was sentenced to serve six months in the county jail. Makinson argues that the trial court erred in revoking his suspended sentence because his failure to make payments was not willful. We affirm as modified.

I. Procedural History

On June 10, 2016, Makinson pleaded guilty to nonsupport, a Class A misdemeanor, received a one-year SIS, and was ordered to pay $1,000 in restitution, along with a fine, costs, and fees. He was also ordered to resume paying child support as previously ordered in Case No. 17DR-08-46 as a term or condition of his SIS.

On August 8, 2016, the State filed a petition to revoke, alleging that Makinson had failed to make any payments toward his restitution, fine, costs, and fees, leaving a balance of $1,490. The State also alleged that Makinson had made no child-support payments since April 7, 2016.

On May 1, 2017, the trial court found Makinson guilty of violating the terms and conditions of his SIS, revoked his SIS, sentenced him to serve six months in the county jail followed by a six-month SIS, and ordered him to pay his restitution, fine, costs, and fees to the Crawford County Prosecuting Attorney's Office in installments of $65 a month beginning sixty days after his release from jail. Makinson was also ordered to resume paying child support as previously ordered in Case No. 17DR-08-46.

On August 17, 2017, the State filed another petition to revoke, alleging that Makinson had been released from jail on May 18, 2017, but that he had made no payments toward his restitution, fine, costs, and fees and that he had made only one child-support payment of $40 in June 2017, leaving an arrearage of $5,870.41. A hearing on the State's petition was held January 31, 2018.

II. Revocation Hearing

Lori Davis, an employee of the Office of Child Support Enforcement, testified that, from January 2017 to August 2017, Makinson had made only one payment of $40 and that he had made two similar payments in 2016. She said that the current child-support arrearages were $11,412.51.

Lisa Whetstine, the fine and restitution coordinator for the prosecuting attorney's office, testified that Makinson had made no payments toward his restitution, fine, costs, and fees, leaving a balance of $1,490.

Makinson testified that he works at Sonic and that his "take-home" pay is about $180 to $200 every two weeks. Makinson testified that he lives in a homeless community in Fayetteville. He said that the police had ordered him and others to leave the area several times and finally destroyed their tents. He said that he had to *294buy a new tent and "start all over again." Makinson testified that his money was spent supporting himself and "anyone who wanted to eat at camp." He also said that both Crawford and Sebastian Counties were taking child support out of his paycheck and that he had contacted his ex-wives who said that they had been receiving child support every two weeks. Makinson acknowledged that he had been ordered to begin making payments on his restitution, fine, costs, and fees sixty days after he was released from jail, which he thought was the end of May or first of June. On cross-examination, he conceded that he had been released on May 18, 2017, meaning that he should have begun making payments on July 18, 2017. According to Makinson, he had called the prosecutor's office on August 1, 2017, to find out when his payment was due and was told that a warrant had already been issued for his arrest.1 He stated that he had called again to set up a payment plan so that he could pay less because "something is better than nothing" but was told that nothing could be done because of the warrant.

At the conclusion of the hearing, the trial court revoked Makinson's SIS and sentenced him to serve six months in the county jail. The trial court also ordered Makinson to make payments on his child support, restitution, fine, costs, and fees. To the extent that the trial court ordered Makinson to make these payments "as a term and condition of suspended sentence," we note that the trial court did not suspend imposition of any sentence nor did it choose to extend the period of suspension. We thus modify the sentencing order to omit any reference to an SIS.

III. Standard of Review

Because the burden of proof in a revocation proceeding is less than that required to convict in a criminal trial, evidence that is insufficient for a conviction may be sufficient for a revocation. Collier v. State , 2013 Ark. App. 643. When the sufficiency of the evidence is challenged on appeal, we will not reverse the trial court's decision to revoke unless its findings are clearly against the preponderance of the evidence. Id. Because the determination of the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. Id. Only one violation is required to sustain a revocation. Vangilder v. State , 2018 Ark. App. 385, 555 S.W.3d 413.

When the alleged violation of conditions is a failure to make payments as ordered, the State has the burden of proving by a preponderance of the evidence that the failure to pay was inexcusable. Bohlman v. State , 2013 Ark. App. 162. The burden of proof does not shift from the State; however, once the State has introduced evidence of nonpayment, the burden of going forward does shift to the defendant to offer some reasonable excuse for the failure to pay. Id. If any assertion of inability to pay is made, the State can then carry its burden in various ways, e.g., it can undermine the probationer's credibility, or it can show a lack of effort, such as a failure to make bona fide efforts to seek employment or to borrow money to make payments. Id. In determining whether to revoke a suspended sentence for nonpayment, the court is required to consider the defendant's employment status, earning ability, financial resources, the willfulness of the defendant's failure to pay, and any other special circumstances that may have a bearing on the defendant's ability to pay.

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Related

Bearden v. Georgia
461 U.S. 660 (Supreme Court, 1983)
Phillips v. State
272 S.W.3d 123 (Court of Appeals of Arkansas, 2008)
Collier v. State
2013 Ark. App. 643 (Court of Appeals of Arkansas, 2013)
Vangilder v. State
555 S.W.3d 413 (Court of Appeals of Arkansas, 2018)

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Bluebook (online)
2018 Ark. App. 535, 564 S.W.3d 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/makinson-v-state-arkctapp-2018.