Case Information
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-870 Opinion Delivered Mаy 17, 2017 FRANKIE DEWAYNE VON HOLT APPEAL FROM THE SEBASTIAN APPELLANT COUNTY CIRCUIT COURT, FORT SMITH DISTRICT V. [NOS. 66CR-08-486 & 66CR-08-790] STATE OF ARKANSAS HONORABLE STEPHEN TABOR, APPELLEE JUDGE
AFFIRMED AS MODIFIED N. MARK KLAPPENBACH, Judge
Frankie Dewayne Von Holt appeals the Sebastian County Circuit Court’s revocation of his suspended imposition of sentence (SIS). In July 2008, appellant Von Holt pled guilty to six felony offenses and was sentenсed to concurrent terms of five years in the Arkansas Department of Correction (ADC) for breaking or entering, five years in the ADC with an additional ten-year SIS for possession of methamphetamine with intent to delivеr, and five years in the ADC with an additional five-year SIS for possession of drug paraphernalia. Under the terms and conditions of the SIS, appellant was ordered to pay restitution to the victims of the breaking оr entering and to pay a $100 fee for his public defender.
The State petitioned to revoke appellant’s suspended sentence on December 30, 2015, asserting that appellant had violated the terms and conditions of the SIS by (1) committing new offenses of trafficking of a controlled substance, possession of a controlled substance with purpose to deliver, possession of drug paraphernаlia, and conspiracy to deliver methamphetamine; and (2) failing to pay restitution and public defender fees.
A revocation hearing was held on August 24, 2016 regarding violation of appellant’s SIS. The trial court heard testimony on appellant’s charges that were the result of a controlled buy conducted by Fort Smith Police on December 22, 2015. On that day, police officers used a confidential informant to рurchase methamphetamine at the residence of Curtis Jones. Shortly after the confidential informant entered Jones’s residence, appellant arrived in a truck registered in his name. Appellant, Jones, and the informant were all inside the residence for less than ten minutes, after which the informant returned to police with a bag of a substance that field-tested positive for methamphetamine. Police obtained and executed a search warrant within one hour of the controlled buy.
Approaching the residence with the search warrant, police encountered Jones and appellant outside, leaning against appellant’s truck and talking. The men were detained and searched. Although Detective Napier of the Fort Smith Police Department testified that the audio recording of the controlled buy showed that the actual delivery occurred before appellant entered the residence and that the only conversation was between appellant and Jones, police discovered the $200 in recorded bills—the “buy money”—in appellant’s pocket. During the search, police discovered and photographed multiple bags of what would
later test positive for methаmphetamine, along with a small amount of marijuana and paraphernalia including a pipe and digital scale. The methamphetamine, divided into bags and stuffed into an upholstery cleaning wipes container, was found inside a pair of rubber boots in the bed of the truck.
At the hearing, the trial court also heard testimony regarding another ground for revocation. As part of the terms and conditions of his SIS, appеllant had been ordered to pay restitution to the victims of his original breaking-or-entering conviction along with a fee for his public defender. The petition asserted appellant’s failure to pay these fees over the past year as a second and independent ground for revocation. The State presented evidence that appellant had not made a restitution payment sincе July 29, 2015 and still owed over $10,000.
Appellant moved for a directed verdict at the close of the testimony, which was denied. The trial court found that appellant had violated the terms and conditions of his SIS and sentenced him to an aggregate term of twenty-five years in the ADC.
Appellant argues that the trial court erred in ruling that there was sufficient evidence to show that appellant inexcusably violated the terms and сonditions of his suspended sentence. Primarily, appellant argues that the State failed to establish by a preponderance of the evidence a prima facie case that appеllant was trafficking methamphetamine. As a second point on appeal, appellant asserts that the State did not adequately prove that his failure to pay restitution and public-defender fеes was willful and therefore failed to prove that appellant had violated that condition of his SIS.
To revoke a suspended sentence, the State bears the burden of proving by a
preponderance of the evidence that the defendant violated a condition of the suspended
sentence.
Jones v. State
,
At the revocation hearing, the State presented multiple grounds for revocation:
Appellant had committed offenses of trafficking of а controlled substance, possession of a
controlled substance with purpose to deliver, possession of drug paraphernalia, conspiracy
to deliver methamphetamine, and failurе to pay restitution and public-defender fees.
With revocation of a suspended sentence, it is well established that the State need
only prove, by a preponderance of the evidencе, that the defendant failed to comply with
any one term of the suspended sentence. Here, a preponderance of the evidence supports
all grounds alleged by the State for revocation. Appellant’s “Restitution Case Profile,”
entered into evidence without objection at the revocation hearing, shows that appellant did
not make any restitution payments after July 29, 2015. The profilе also shows appellant’s
outstanding balance of $100 for his public defender. The State presented this evidence of
nonpayment, and the burden of proof shifted to appellant to provide а reasonable excuse
for his failure to pay.
See Robertson v. State
,
Not only did appellant fail to offer an excuse for nonpayment, he seemed to misunderstand the burden of proof, essentially asserting that the State had the burden to show that his nonpayment was willful. As discussed above, this is not the correct standard. Additionally, appellant’s argument on this point is vague and cites no authority and is therefore meritless. Under the appropriate standard of review, we do not believe the trial court’s ruling that appellant inexcusably failed to pay his required fees is clearly against the preponderance of the evidenсe. Therefore, we must affirm.
Were we to reach the allegations relating to methamphetamine and drug paraphernalia, we would also affirm. Detective Napier testified that when they exeсuted the search warrant at Jones’s residence, they discovered in appellant’s pockets the $200 in marked bills that had been given to the confidential informant to purchase drugs. Detective Napiеr testified that they also discovered the rubber boot containing bags of methamphetamine in the bed of appellant’s truck directly below where appellant was leaning. Also in appellant’s truck, Napier testified, the officers discovered Ziploc bags, digital scales, a pill bottle containing various types of pills, and paraphernalia associated with measuring drugs. Arkansas State Crime Lab chemist Nick Dawson testified that he tested the items from the truck, which tested positive for 248.5 grams of methamphetamine along with other controlled substances. This is enough to prove the allegations of trafficking and possession of a controlled substance and drug paraphernalia beyond a preponderance of the evidence. Therefore, we affirm.
Although we affirm the revocation, we must address а sentencing issue in this case.
“The issue of an illegal sentence cannot be waived by the parties and may be addressed for
the first time on appeal.”
Valencia v. State
,
The original sentencing order shows that appellant was given 60 months in the ADC for his breaking-оr-entering convictions. This was not a suspended sentence, and appellant served the prison sentence. On the revocation sentencing order, however, the trial court “revoked” this sentencе and reinstated a 48-month sentence on the breaking-or-entering convictions. Because the original 60-month sentence was not suspended, this new sentence on the breaking-or-entering convictions is illegаl. A sentence that is not suspended cannot be revoked. Because this court may correct an illegal sentence on appeal sua sponte, we vacate appellant’s new 48-mоnth sentence on the breaking-or-entering convictions.
Affirmed as modified.
G RUBER , C.J., and H IXSON , J., agree.
The Burns Law Firm, PLLC , by: Meagan Burns , for appellant.
Leslie Rutledge , Att’y Gen., by: Rachel Kemp , Ass’t Att’y Gen., for appellee.
Notes
[1] Four counts of breaking or entering, one count of possession of methamphetamine with intent to deliver, and one count of possession of drug рaraphernalia.
[2] Appellant was required to pay $50 per month beginning 90 days after his release from the 60-month sentence for breaking or entering, in addition to a $100 public-defender fee.
[3] Appellant’s counsel raised this argument below when moving for a directed verdict.