L.C. Kennedy, Jr. v. State of Arkansas
2021 Ark. App. 413
Ark. Ct. App.2021Background
- L.C. Kennedy pleaded guilty in 2016 to three hot-check offenses and was placed on five years’ probation in three cases with written conditions (no new offenses, report to probation officer, notify address changes, $35 monthly fee, $10,649.63 restitution/costs in $125 monthly installments).
- The State filed a motion to revoke all three probations in May 2017, alleging new hot checks, failure to report, failure to notify change of address, failure to pay supervision fees, and failure to pay restitution/costs.
- Revocation hearings began March 15, 2019; probation officer testified Kennedy had not reported and had made no payments since placement on probation. The State’s proffered hot-check evidence was excluded at trial.
- On April 23, 2019 the trial court expressly stated, “I find you guilty of violating the conditions of your probation,” but postponed sentencing to give Kennedy time to pay.
- Sentencing proceeded in stages through July and October 2020; on October 29, 2020 the court sentenced Kennedy to 24 months in a regional facility (concurrent) followed by a four-year suspended imposition of sentence (SIS) for each revocation.
- On appeal Kennedy argued the court never made a finding of violation before sentencing and also briefly argued the court failed to provide a written statement of reasons for revocation; the Court of Appeals found the record shows an earlier finding of guilt and affirmed the revocations but modified the judgment to remove any requirement that Kennedy report to a probation officer while on SIS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court made the requisite finding of probation violation before imposing sentence | Kennedy: court never found willful violation or revoked probation prior to sentencing; sentencing without a finding denied due process | State: record shows the trial court expressly found Kennedy guilty at the April 23, 2019 hearing and repeatedly confirmed that finding; written judgment also reflects the finding | Court: Affirmed — the record demonstrates the trial court found violations before sentencing |
| Whether failure to provide a written statement of the evidence/reasons (Ark. Code Ann. § 16-93-307(b)(5)) required reversal | Kennedy: revocations should be reversed for lack of written statement explaining evidence and reasons | State: issue was not raised below | Court: Not preserved for appeal; issue forfeited |
| Whether the sentence illegally required reporting to a probation officer during suspended sentence | Kennedy: (not the primary argument on appeal) | State/Court: trial court included reporting condition but statutory scheme distinguishes probation (supervised) from SIS (not supervised) | Court: Modified sentence sua sponte to delete any requirement that Kennedy report to a probation officer while on SIS |
Key Cases Cited
- Yarberry v. State, 2021 Ark. App. 265 (preponderance standard governs proof of probation violation)
- Muhammed v. State, 2021 Ark. 129 (court may correct an illegal sentence sua sponte)
- Bangs v. State, 310 Ark. 235 (probation supervision cannot follow imprisonment; suspension differs from probation)
- Lane v. State, 2015 Ark. App. 672 (issues not raised below are not preserved for appeal)
- Harness v. State, 352 Ark. 335 (distinction and limits between probation and SIS/supervision)