CourtListener 4441352•London v. State
Gesamter Gesetzestext
Cite as 2017 Ark. App. 585
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-17-75
JERRICK LONDON Opinion Delivered: November 8, 2017
APPELLANT APPEAL FROM THE ARKANSAS
COUNTY CIRCUIT COURT,
V. SOUTHERN DISTRICT
[NO. 01DCR-08-10]
STATE OF ARKANSAS
HONORABLE DAVID G. HENRY,
JUDGE
APPELLEE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Jerrick London appeals the Arkansas County Circuit Court’s order revoking his
suspended imposition of sentence (SIS) on the charge of delivery of cocaine, a Class Y
felony. He argues that there was insufficient proof that he inexcusably failed to pay as
ordered. We affirm.
London entered a negotiated plea of guilty in the circuit court on June 18, 2009. He
pled to delivery of cocaine, a Class Y felony. He was sentenced to an SIS of 240 months
with conditions that included payment of a $5,000 fine suspended upon compliance of all
terms and conditions, and also payment of costs at a rate of $75 a month.
The State first petitioned to revoke London’s SIS in December 2011, alleging that
he had violated the terms by failing to make any of the required monthly payments, being
arrested for robbery and failure to appear, and testing positive for phencyclidine (PCP).
Cite as 2017 Ark. App. 585
Upon motion of the State, the circuit court entered an order on October 10, 2014, nunc
pro tunc to August 1, 2012, dismissing the first petition without prejudice with the
requirement that the conditions of London’s suspended sentence be strictly enforced.
On November 19, 2014, the State filed a second petition to revoke London’s SIS,
re-alleging the allegations in the first petition to revoke. Additionally, the State alleged that
London had violated the conditions of his suspended sentence because he had been arrested
for public intoxication, loitering, and possession of instruments of crime. London was
arrested on the petition. However, based on his representations to the prosecutor that if
released he would receive disability income from which he would make payments toward
his fines and court costs and that he would report for the revocation hearing on April 27,
2016, he was released on February 24, 2016. London did not appear for the April 27 hearing.
At the revocation-and-failure-to-appear hearing on September 29, 2016, the only
violation addressed was London’s complete failure to pay fines and costs. 1 Both the State
and London stipulated that he had not made any payment on the fines and costs as ordered.
London’s suspended sentence was revoked, and the circuit court sentenced him to 10 years’
imprisonment in the Arkansas Department of Correction (ADC). This appeal followed.
To revoke probation or an SIS, the burden is on the State to prove the violation of
a condition of the probation or SIS by a preponderance of the evidence. Jones v. State, 355
Ark. 630, 144 S.W.3d 254 (2004). A circuit court may revoke an SIS if it finds by a
preponderance of the evidence that the defendant inexcusably failed to comply with a single
1
We note the sentencing order filed on October 5, 2016, contains the incorrect date
of the hearing as September 28, 2016.
2
Cite as 2017 Ark. App. 585
condition of his or her suspension. See Ark. Code Ann. § 16-93-308(d) (Supp. 2015). On
appellate review, the circuit court’s findings will be upheld unless they are clearly against
the preponderance of the evidence. Nelson v. State, 2010 Ark. App. 549. Because the
burdens are different, evidence that is insufficient for a criminal conviction may be sufficient
for revocation of probation or SIS. Id. Thus, the burden on the State is not as great in a
revocation hearing. Id.
Furthermore, because the determination of a preponderance of the evidence turns
on questions of credibility and weight to be given to the testimony, we defer to the circuit
court’s superior position. Id. Specifically, we have noted that “[t]he circuit court is not
required to believe the testimony of the defendant because he is the person most interested
in the outcome of the hearing.” Rhoades v. State, 2010 Ark. App. 730, at 3, 379 S.W.3d
659, 661.
If the alleged violation involves the failure to pay court ordered fines and costs, the
court may revoke the suspended sentence if it finds the defendant has failed to make a good-
faith effort to pay the obligation. Thompson v. State, 2009 Ark. App. 620. While the State
has the burden of proving that the failure to pay is inexcusable, once the State has introduced
evidence of nonpayment, the burden shifts to the defendant to provide a reasonable excuse
for his or her failure to pay. Id. This court reviews the sufficiency of the evidence supporting
revocation in the light most favorable to the State. E.g., Bohannon v. State, 2014 Ark. App.
434, at 5, 439 S.W.3d 735, 738.
In the instant case, both the State and London stipulated that he had not made any
payment of fines and costs as ordered. London testified that since he pled guilty in 2009, he
3
Cite as 2017 Ark. App. 585
had been disabled and unemployed and had either lived with his sister or been incarcerated
for probation violations on another criminal conviction. London also introduced a Social
Security Administration (SSA) letter dated August 24, 2015, that stated his date of disability
was June 18, 2014, and that his monthly disability benefit of $733 would resume on
September 1, 2015. The letter indicated that he had previously received disability payments,
but London denied having ever received any disability payments prior to 2016 and testified
that his disability payments were suspended while he was incarcerated.
London introduced his ADC “Pen Pack” to show that since he pled guilty in 2009,
he had been repeatedly incarcerated for violating the terms of his probation on a separate
conviction. He also denied ever having received a lump-sum disability payment retroactive
to the date of disability; however, he later equivocated, stating that he needed to “check on
that.”
London admitted to receiving disability payments after his release on February 24,
2016, until he was arrested in June 2016 on the revocation petition. While he also claimed
that he attempted to pay $20.00 in April 2016 and that the money order was returned to
him because he had mailed it to the wrong address, he did not introduce any evidence to
support this claim.
The circuit court found, as agreed and stipulated by the parties, that there had been
“absolutely no payments made on the obligation contained in the sentence.” The court also
found that although the record was unclear whether he had received disability income prior
to 2016 due to the periods of incarceration, it was undisputed that he did receive disability
income after his release in February 2016 but failed to make any payment.
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Cite as 2017 Ark. App. 585
Furthermore, the circuit court found London’s testimony that he did not receive a
lump-sum disability payment, retroactive to the date of disability, not credible. The circuit
court revoked London’s suspended sentence based on these findings. Moreover, as the State
asserts in its brief, the introduced SSA letter demonstrates that London was capable of
directing the SSA to mail his benefits check directly to him instead of making a direct deposit
into his bank account, negating London’s mental disability excuse.
We cannot say that the circuit court erred, because there was sufficient evidence to
support the court’s finding that London inexcusably violated a condition of his suspended
sentence. London did not present a reasonable excuse regarding his nonpayment of fines
and costs as ordered. There is also no evidence to support London’s argument that even if
he had received the SSA checks, his mental disabilities rendered him incapable of complying
with the order to make monthly payments. Accordingly, we affirm.
Affirmed.
GLADWIN and WHITEAKER, JJ., agree.
Knutson Law Firm, by: Gregg A. Knutson, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
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