Charles Shealy v. State of Arkansas

Cite as 2024 Ark. App. 429
ARKANSAS COURT OF APPEALS
DIVISION II
NO. CR-24-56

Opinion Delivered September 18, 2024
CHARLES SHEALY
APPEAL FROM THE CRAIGHEAD
APPELLANT COUNTY CIRCUIT COURT, WESTERN
DISTRICT
V. [NO. 16JCR-22-566]

STATE OF ARKANSAS HONORABLE CHRIS THYER,
JUDGE

APPELLEE AFFIRMED; REMANDED TO
CORRECT SENTENCING
ORDER

STEPHANIE POTTER BARRETT, Judge

Charles Shealy appeals an order of the Circuit Court of Craighead County finding

that he had violated the conditions of his suspended sentence and sentencing him to seventy-

two months in the Arkansas Division of Correction and placing him on an additional forty-

eight months’ suspended sentence. We affirm the revocation of his suspended sentence and

remand to correct the sentencing order.

On April 1, 2022, Charles Shealy was charged with possession of controlled

substance, methamphetamine, with intent to deliver, a Class C felony; possession of drug

paraphernalia; and possession of a misdemeanor amount of marijuana. On January 9, 2023,

Shealy pleaded guilty to possession of methamphetamine, more than two grams but less than

ten grams, and was sentenced to 120 days in jail and placed on sixty months’ suspended
imposition of sentence (SIS). The charges of possession of drug paraphernalia and

possession of marijuana were dismissed pursuant to the plea agreement.

On March 1, 2023, less than sixty days after his plea of guilty to possession of

methamphetamine, Officer Greg Trout of the Jonesboro Police Department saw Shealy

riding a bicycle without a light at 11:00 p.m. in violation of Arkansas law. Shealy was stopped

for the violation, and Officer Trout asked him questions about his identity and whether he

was on probation or serving a suspended sentence. Shealy admitted to Officer Trout that he

was serving a suspended sentence, which was confirmed by a warrant check. The conditions

of Shealy’s suspended sentence gave Officer Trout authority to conduct a warrantless search

of his person and backpack. Officer Trout conducted a search of Shealy’s backpack and

found 0.9 grams of a crystal-like substance and a glass meth pipe with burn marks and

residue. A controlled-substance field test confirmed that the substance was

methamphetamine, and he was placed under arrest for possession of a controlled substance

and possession of drug paraphernalia.

A petition to revoke Shealy’s probation was filed on March 21, 2023, as the result of

the new charges of possession of methamphetamine, a Schedule II controlled substance, less

than two grams, a Class D felony; and possession of drug paraphernalia—namely, a glass

methamphetamine pipe, also a Class D felony. A hearing was held on the petition to revoke

on July 12, 2023. The circuit court took judicial notice of the case file, including Shealy’s

sentencing order and the signed terms and conditions of his suspended sentence. The

relevant terms of Shealy’s suspended sentence were that he must not commit a criminal
offense punishable by imprisonment and must not use, sell, distribute, or possess any

controlled substance; and that he must submit his person, place of residence, motor vehicle,

or other property to search and seizure at any time, day or night, with or without a search

warrant, whenever requested by any supervising officer or law enforcement officer.

At the commencement of the hearing, Shealy made a motion for continuance arguing

that the court should defer disposition of the petition and give him an opportunity to

complete his rehabilitation. Shealy chose not to testify, and at the close of the State’s case,

he moved for directed verdict on the basis of what he argued was an extreme search and

failure to show by a preponderance of the evidence that he had violated the terms and

conditions of his suspended sentence. The circuit court denied the motion for directed

verdict, finding the State had established by a preponderance of the evidence that Shealy had

in his possession methamphetamine and drug paraphernalia and had proved Shealy had

inexcusably violated the terms and conditions of his suspended sentence. The court also

denied Shealy’s motion for a continuance to complete his drug rehabilitation. Shealy also

argued that he should have been given a jail sanction of 120 days rather than sentenced to

the Arkansas Division of Correction.

Shealy raised the following points on appeal: (1) that the State did not show by a

preponderance of the evidence that he had violated the terms and conditions of his

suspended sentence; (2) that the search was extreme and should be found unreasonable; (3)

that the court should have deferred sentencing until he could have completed drug
rehabilitation; and (4) that he should have been given a jail sanction of no more than 120

days.

Upon review, at the close of all the evidence, Shealy moved for directed verdict,

arguing that the State had failed to show by a preponderance of the evidence that he had

inexcusably violated the terms and conditions of his suspended sentence. The motion was

denied by the circuit court. Motions for directed verdict are challenges to the sufficiency of

the evidence. Benson v. State, 357 Ark. 43, 160 S.W.3d 341 (2004); Holland v. State, 2017

Ark. App. 49, 510 S.W.3d 311. A preponderance of the evidence is convincing evidence

that is more probably accurate and true when weighed against the evidence opposed to it.

E.g., Sivils v. State, 2021 Ark. App. 198, at 3, 623 S.W.3d 138, 140. A circuit court may

revoke a defendant’s probation or suspended sentence prior to expiration if the court finds

that the defendant inexcusably failed to comply with a condition of his or her probation.

Ark. Code Ann. § 16-93-308 (Repl. 2016); Miller v. State, 2011 Ark. App. 554, 386 S.W.3d

65. Evidence that would be insufficient for a new criminal conviction may be sufficient for

the revocation of probation. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001).

Arkansas Code Annotated section 16-93-308(d) provides that a court may revoke a probation

if the court finds by a preponderance of the evidence that the defendant has inexcusably

failed to comply with a condition of his probation. It is the State’s burden to prove a

violation. Yarberry v. State, 2021 Ark. App. 265. In this case, Shealy entered a plea of guilty

to possession of methamphetamine on January 9, 2023, and was sentenced to sixty months’

suspended imposition of sentence. Less than sixty days after his sentencing, he was arrested
again for possession of 0.9 grams of methamphetamine and drug paraphernalia. Officer

Trout testified that Shealy had in his possession a white crystalline substance he recognized

as methamphetamine and that was verified by a drug field test as methamphetamine as well

as a glass pipe with burn marks and residue commonly used to smoke methamphetamine.

Possession of methamphetamine and drug paraphernalia are offenses punishable by

imprisonment, which was sufficient to show by a preponderance of the evidence that Shealy

had inexcusably violated the terms and conditions of his suspended sentence.

When Shealy was detained by Officer Trout, he was asked to identify himself, and he

provided his name to the officer and admitted he was under supervision on a suspended

sentence. Officer Trout verified he was serving a suspended sentence and conducted a search

of Shealy and his backpack. Shealy argued that the search was extreme since the officer did

not have any reason to suspect that he possessed contraband on the basis of his stop for not

having a light on his bicycle. Arkansas Code Annotated section § 5-4-303(a)(1) (Supp. 2023)

provides that “[i]f a court suspends imposition of sentence on a defendant or places him or

her on probation, the court shall attach such conditions as are reasonably necessary to assist

the defendant in leading a law-abiding life.” The conditions of suspended sentence included

prohibitions on possessing controlled substances and committing any offense punishable by

imprisonment. Such suspicionless searches are reasonable under the law applicable to

Shealy’s suspended sentence and are constitutionally permissible. Johnson v. State, 2023 Ark.

App. 509, 679 S.W.3d 444. In United States v. Knights, 534 U.S. 112 (2001), the Supreme

Court held that the warrantless-search condition imposed on a probationer by the court was
permissible because it encouraged “the hope that he will successfully complete probation

and be integrated back into the community” while also addressing the “concern, quite

justified, that he will be more likely to engage in criminal conduct than an ordinary member

of the community.” Id. at 120–21; see also Clingmon v. State, 2021 Ark. App. 107, 620 S.W.3d

184 (holding that, under Samson v. California, 547 U.S. 843, 850 (2006), warrantless search

of parolee’s residence did not require any reasonable suspicion and did not violate his

constitutional rights). In this case, Officer Trout did not conduct a search of Shealy or his

backpack until Shealy admitted that he was serving a suspended sentence, which Officer

Trout verified prior to the search. Upon searching Shealy’s backpack, officer Trout found a

glasses case containing 0.9 grams of a white crystalline substance that he recognized as

methamphetamine and drug paraphernalia consisting of a glass methamphetamine pipe with

burn marks and residue. A field test confirmed the white crystalline substance as

methamphetamine. We find that the warrantless search of Shealy’s backpack was

constitutionally permissible based on both Arkansas and federal case law for persons on

probation or suspended sentences.

Shealy requested that the court defer the disposition of the case to allow him to

complete his drug rehabilitation that he allegedly started four weeks prior to the revocation

hearing. Our standard of review from the denial of a continuance is well settled. A circuit

court shall grant a continuance only upon a showing of good cause and shall consider “not

only the request or consent of the prosecuting attorney or defense counsel, but also the

public interest in prompt disposition of the case.” Ark. R. Crim. P. 27.3 (2023); Hill v. State,
2015 Ark. App. 587, 473 S.W.3d 556. When a motion for continuance is based on a lack

of time to prepare, the reviewing court considers the totality of the circumstances. Hill, supra.

Here, Shealy did not allege that he did not have time to prepare for the hearing but sought

to have a continuance to purportedly continue a drug-rehabilitation treatment program. It

is within the circuit court’s discretion to grant or deny a motion for continuance, and this

court will not reverse the circuit court’s decision absent a clear abuse of discretion. Id. In

addition, an appellant must also demonstrate that he suffered prejudice that amounts to a

denial of justice because of the ruling on the motion for a continuance. Id. Shealy argued

he was prejudiced because “there was not consideration taken to allow him to finish the drug

rehabilitation program.” He concludes that “the rehabilitative nature of the justice system

was not upheld.” Other than counsel’s arguments, Shealy did not provide any evidence that

he was currently enrolled in a drug-treatment program or provide any progress reports that

would show “good cause” for a continuance on these grounds. A circuit court’s decision to

grant or deny a continuance will not be reversed absent an abuse of discretion amounting to

a denial of justice. Dye v. State, 2019 Ark. App. 234, 576 S.W.3d 73. An abuse of discretion

occurs when the circuit court acts improvidently or thoughtlessly, without due consideration.

Milner v. Luttrell, 2011 Ark. App. 297, 384 S.W.3d 1. We find no abuse of discretion in the

denial of additional time to complete drug rehabilitation because Shealy presented no proof

as to his status in a drug-rehabilitation program.

Shealy also argued he should be given a jail sanction of not more than 120 days as an

alternative sentence and be placed back on his suspended sentence rather than sentenced to
the Arkansas Division of Correction. In a revocation proceeding, the circuit court has

discretion in sentencing and is authorized to impose any sentence that it could have

originally imposed. Perkins v. State, 2024 Ark. App. 169, 686 S.W.3d 569. A defendant who

is sentenced within the statutory range and short of the maximum sentence cannot establish

prejudice. Id. The decision to allow alternative sentencing is reviewed for an abuse of

discretion, which is a high threshold requiring that a circuit court act improvidently,

thoughtlessly, or without due consideration. Winston v. State, 2024 Ark. App. 24, 683

S.W.3d 195; Kennedy v. State, 2024 Ark. App. 382. The court took into consideration

Shealy’s two prior violent felony convictions and the fact that it had been less than sixty days

from the date of his conviction for possession of methamphetamine. After arguments of

counsel regarding the alternative sentence, the circuit court imposed a sentence of seventy-

two months in the Arkansas Division of Correction with a suspended sentence of forty-eight

months after his release. We find that the circuit court did not abuse its discretion in

denying Shealy’s request for an alternative sentence, considering his past criminal history

and the fact that this offense occurred less than sixty days after he was placed on a suspended

sentence on the original charge of possession of methamphetamine. Jefferies v. State, 2022

Ark. App. 359.

In reviewing the sentencing order, we take notice sua sponte that the sentence

imposed on Shealy is illegal on its face because the sentence exceeds the statutory maximum

for the offense for which he was convicted when added to the 120 days imposed previously.

Upon revocation, Shealy may be resentenced to imprisonment for a period that, when added
to the term of imprisonment that was previously imposed, does not exceed ten years. Ward

v. State, 2016 Ark. 8, 479 S.W.3d 9. In this case, the first sentencing order imposed 120

days in jail; Thus, upon revocation, appellant’s sentence, when combined with his previous

sentence imposed of 120 days’ imprisonment, could not exceed ten years. Yet, appellant was

sentenced to 72 months’ imprisonment and an additional 48 months’ SIS (a total of ten

years) not accounting for his previous imposed sentence of 120 days’

imprisonment. Accordingly, I recommend that we remand for resentencing. See Stanley v.

State, 2022 Ark. App. 298, at 2-3.

Affirmed; remanded to correct sentencing order.

WOOD and HIXSON, JJ., agree.

Terry Goodwin Jones, for appellant.

Tim Griffin, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.