Rhonda Lynn Hogue v. State of Arkansas

2024 Ark. App. 443, 698 S.W.3d 415

• Court: Court of Appeals of Arkansas
• Decided: September 25, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 443 ARKANSAS COURT OF APPEALS DIVISION III No. CR-23-79

RHONDA LYNN HOGUE Opinion Delivered September 25, 2024

APPELLANT APPEAL FROM THE DREW COUNTY CIRCUIT COURT V. [NO. 22CR-21-277]

STATE OF ARKANSAS HONORABLE ROBERT B. GIBSON III, APPELLEE JUDGE

REVERSED AND DISMISSED

ROBERT J. GLADWIN, Judge

Rhonda Lynn Hogue (“Hogue”) appeals the revocation of her probation in the Drew

County Circuit Court. This matter is back after an opinion entered on November 1, 2023,

wherein this court denied defense counsel’s motion to withdraw and no-merit brief pursuant

to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(b) (2023),

and ordered that a merit brief be filed. See Hogue v. State, 2023 Ark. App. 490. We reverse

and dismiss.

I. Background Facts

On August 15, 2022, Hogue entered a negotiated plea of guilty to the felony offenses

of second-degree battery and tampering with physical evidence. On the same day, the circuit

court signed both the order and the conditions of supervised probation. Hogue also signed and agreed to the conditions of probation on August 15. The guilty plea and order and

conditions of supervised probation were filed of record on August 17. The conditions

included that Hogue was required within seventy-two hours to contact her probation intake

officer to complete the required paperwork, obtain reporting instructions, and provide a

DNA sample. On August 18, the sentencing order was filed of record.

On August 31, the State filed a revocation petition alleging that Hogue had violated

a condition of her probation. A violation report was attached to the petition, stating that

on August 17, Hogue failed to report as directed; thus, she had violated a condition of her

supervised probation. The report specifically stated that Hogue was given an intake

appointment for 9:30 a.m. on August 17. Importantly, the alleged violation occurred at 9:30

a.m. on August 17; the order and conditions of probation were filed at 10:00 a.m. on August

17; and the sentencing order was filed on August 18.

A revocation hearing was held on October 31, and the court found that Hogue had

violated the condition of her probation to report for intake within seventy-two hours.

Further, the circuit court noted that Hogue did not appear before the court until nearly a

month after a warrant for absconding had been issued. Consequently, the court sentenced

Hogue to sixty months in the Arkansas Division of Correction with an additional sixty-

month suspended imposition of sentence (SIS). The sentencing order was filed on

November 2. Hogue filed a timely notice of appeal on November 11. On March 19, 2023,

counsel filed a no-merit brief and a motion to be relieved as appellate counsel. On November

1, 2023, this court denied counsel’s motion to withdraw and ordered that a merit brief be

2 filed in light of recent precedent in Townsend v. State, 2023 Ark. App. 356, 676 S.W.3d 1.

This appeal followed.

II. Standard of Review

The Arkansas Supreme Court has held that an order is not effective until it is entered

of record. Hewitt v. State, 362 Ark. 369, 371, 208 S.W.3d 185, 186 (2005). Furthermore,

until a guilty plea and resulting sentence are memorialized as a sentencing order and entered

into the record, there is not an effective judgment of conviction. Bradford v. State, 351 Ark.

394, 404, 94 S.W.3d 904, 910 (2003).

III. Discussion

Hogue argues on appeal that her revocation amounted to an illegal sentence because

it was based on conduct that occurred prior to entry of the sentencing order; thus, her

revocation must be reversed and dismissed. The State maintains that Hogue is correct and

thereby concedes error. Consequently, the State agrees that the circuit court lacked

jurisdiction to revoke Hogue’s probation and that her revocation should be reversed.

This case is controlled by our precedent in Townsend, wherein this court reversed the

appellant’s SIS because it was based on alleged violations that occurred prior to entry of the

sentencing order. 2023 Ark. App. 356, at 6, 676 S.W.3d at 4. Importantly, this court

explained that while Townsend’s SIS commenced upon pronouncement in the courtroom,

it could not be revoked unless the sentencing order was entered of record. Id. This court’s

decision in Burnett v. State, 2018 Ark. App. 220, is also controlling and the facts are strikingly

similar to those here. In Burnett, the appellant appealed the revocation of her probation for

3 acts committed hours before the sentencing order was entered; the State conceded error, and

this court reversed and dismissed the revocation. Id.

Here, the only violation Hogue was alleged to have committed occurred the day

before entry of the sentencing order. Hogue failed to report for her scheduled intake on

August 17, 2022, at 9:30 a.m., and the sentencing order was filed on August 18, 2022.

According to precedent, the circuit court erred by revoking Hogue’s probation for conduct

that occurred before that probation was imposed.

IV. Conclusion

For the above-stated reasons, we reverse and dismiss Hogue’s probation revocation.

Reversed and dismissed.

VIRDEN and MURPHY, JJ., agree.

Tim Cullen, for appellant.

Tim Griffin, Att’y Gen., by: A. Evangeline Bacon, Ass’t Att’y Gen., for appellee.