Mundell v. State

2015 Ark. App. 554

• Court: Court of Appeals of Arkansas
• Decided: October 7, 2015
• Docket: CR-15-132
• Status: Published

Opinion

Cite as 2015 Ark. App. 554

ARKANSAS COURT OF APPEALS DIVISION III No. CR-15-132

JASON MUNDELL Opinion Delivered OCTOBER 7, 2015 APPELLANT APPEAL FROM THE CRAWFORD V. COUNTY CIRCUIT COURT [NO. 17CR-2013-444]

STATE OF ARKANSAS HONORABLE GARY COTTRELL, APPELLEE JUDGE

REVERSED AND DISMISSED

DAVID M. GLOVER, Judge

Jason Mundell pled guilty to first-degree criminal mischief on April 10, 2014. The

trial court withheld imposition of sentence for one year and, among other things, ordered

Jason to perform thirty days of community service. On May 8, 2014, the State filed a petition

to revoke, alleging Jason had violated the terms and conditions of his suspended sentence

with his failure to comply with the conditions of his community service by failing a drug test.

Following a hearing on the petition, the trial court found Jason had violated the conditions

of his suspended sentence, revoked the suspension, and sentenced him to ninety days in the

Crawford County Detention Center, suspending an additional nine months. Jason appeals

from the revocation of his suspended sentence. As his sole point of appeal, he contends the

trial court erred in determining that he had inexcusably violated a term or condition of his

suspended sentence. The State concedes error, and we agree. We therefore reverse and

dismiss. Cite as 2015 Ark. App. 554

The April 10, 2014 order is the only written statement setting out the conditions for

Jason’s suspended sentence. He was ordered to pay restitution, a fine, court costs, a booking

fee, administrative fees, and to have no offensive contact with Horace Pruitt. The order

conditioned his suspension on good behavior and the performance of thirty days’ community

service at the Crawford County Courthouse.

The May 8, 2014 petition to revoke alleges Jason had failed to comply with the terms

and conditions of his community service by failing a drug test, and his conduct was in

violation of the terms and conditions of the suspended sentence. However, as argued by

Jason, there was nothing demonstrating he was given any notice that the community-service

supervisor would require him to stop taking his prescription pain medication in order to

perform the community service. While he did not actually fail a drug test, Jason agreed that

he would fail the test if he took it because of his prescription medication, which was an

opiate. Jason was told of the requirement that he not be on any prescription drugs on the

first day of his community service, by the supervisor of community service.

It is undisputed Jason suffers from a debilitating joint disease, ankylosing spondylitis,

which involves the deterioration of his cartilage, and he has been prescribed pain opiates

since he was sixteen years old. When he appeared for community service, the supervisor told

him the workplace was 100% drug free, including prescription medication, and he would

have to stop taking the medication to complete the community service. That requirement

was not a written condition of his suspended sentence and doing so would cause debilitating

pain. Moreover, the only violation alleged in the petition to revoke was a “failed drug test.”

2 Cite as 2015 Ark. App. 554

The State concedes error in this case based upon our opinion in Schubert v. State, 2013

Ark. App. 698. The facts are very similar, even involving the same community-service

supervisor. Our court concluded in Schubert that the additional requirement regarding

prescription medications was not an adequate basis for revocation. We see no credible way

to distinguish the instant case from Schubert. Therefore, we agree with the State’s concession

of error and reverse and dismiss the trial court’s revocation of Jason’s suspended sentence.

Reversed and dismissed.

VIRDEN and VAUGHT, JJ., agree.

Lisa-Marie Norris, for appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.