Hart v. State

Cite as 2017 Ark. App. 434

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-16-856

OLIVER W. HART III Opinion Delivered: September 13, 2017
APPELLANT
APPEAL FROM THE MILLER
V. COUNTY CIRCUIT COURT
[NO’S. 46CR-02-162, 46CR-02-570,
STATE OF ARKANSAS AND 46CR-03-627]
APPELLEE
HONORABLE KIRK JOHNSON,
JUDGE

AFFIRMED

RITA W. GRUBER, Chief Judge

This revocation case has returned to us after correction and supplementation of the

record and rebriefing. Hart v. State, 2017 Ark. App. 130 (Hart I). As detailed in our opinion

in Hart I, appellant’s probation was revoked in three cases after the circuit court found that

he had violated all three conditions alleged in the State’s petition to revoke: committed a

drug offense; inexcusably failed to pay court-ordered financial obligations; and possessed a

controlled substance, possessed drug paraphernalia, and tested positive for controlled

substances on four occasions during March, June, and July 2014. On appeal, appellant argues

that the evidence was insufficient to revoke his probation and that the circuit court erred in

denying his motion to dismiss the revocation petition for failure to provide him a

preliminary hearing. We affirm the orders of the circuit court.

Appellant pleaded guilty in the three cases on appeal on April 7, 2009. All three cases

involved manufacturing, delivering, or possessing a controlled substance and possession of
Cite as 2017 Ark. App. 434

drug paraphernalia. In December 2013, appellant requested that supervision of his probation

be transferred to Texas, which was done. In connection with the transfer, he signed an

application to transfer, which included his statement that he would comply with the terms

and conditions of supervision placed on him in Arkansas. One of the conditions of his

probation was that he make monthly court-ordered payments to the Miller County Circuit

Clerk.

On August 27, 2014, appellant was arrested in Texarkana, Texas, for possession of

drug paraphernalia and possession of a controlled substance. His Texas supervisor informed

appellant’s Arkansas probation officer of this arrest, and petitions for revocation were filed

in the three cases alleging that appellant had failed to pay court-ordered obligations and had

committed an offense against the laws of this or any other state. After the Texas supervisor

provided information to the Arkansas probation officer regarding appellant’s four failed drug

screens, the petitions were amended to include the allegation that appellant had possessed,

used, sold, or distributed a controlled substance, narcotic drug, or drug paraphernalia. The

court subsequently revoked appellant’s probation, finding that he had violated all three of

the conditions.

I. Sufficiency of the Evidence

Appellant’s first point on appeal is that the evidence was insufficient to revoke his

probation on any of the violations alleged in the petition and found by the circuit court. A

circuit court may revoke a defendant’s probation at any time prior to the expiration of the

period of probation if it finds by a preponderance of the evidence that the defendant has

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inexcusably failed to comply with a condition of his probation. Ark. Code Ann. § 16-93-

308(d) (Repl. 2016). When the sufficiency of the evidence is challenged on appeal from an

order of revocation, this court will not reverse the circuit court’s decision to revoke unless

it is clearly against the preponderance of the evidence. Owens v. State, 2009 Ark. App. 876,

at 6, 372 S.W.3d 415, 419. Because the determination of a preponderance of the evidence

turns on questions of credibility and the weight to be given testimony, we defer to the

circuit court’s superior position. Richardson v. State, 85 Ark. App. 347, 349, 157 S.W.3d

536, 538 (2004). Finally, the State need only show that the appellant committed one

violation in order to sustain a revocation. Id.

We turn first to the evidence regarding appellant’s failure to pay court-ordered fines.

When the alleged violation is a failure to make payments as ordered, it is the State’s burden

to prove that the failure to pay was inexcusable; once the State has introduced evidence of

nonpayment, the burden of going forward shifts to the defendant to offer some reasonable

excuse for failing to pay. Reyes v. State, 2012 Ark. App. 358, at 5. Appellant’s Arkansas

probation officer testified that when appellant submitted his application to transfer probation

to Texas, he signed a statement outlining his duties regarding the conditions of his probation,

one of them being his obligation to make court-ordered monthly payments to the Miller

County Circuit Clerk. Testimony established that appellant had made no payments on these

fines from the time he was placed on probation on April 7, 2009. At trial, he asserted that

he had made payments to the State of Texas for his Texas supervision fees and that he

thought this constituted payment on his Arkansas fines and costs. The court specifically

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found appellant’s testimony not credible because he had never made payments on his court-

ordered obligations, even for the five years that he resided in Arkansas, and because his

Arkansas probation officer testified that he had specifically told appellant that he was still

obligated to make the payments to the Miller County Circuit Clerk even after his transfer

to Texas. Further, the transfer documents state that he is required to comply with the terms

and conditions placed on him in Arkansas, which include payments to the Miller County

Circuit Clerk of all fines, fees, and costs. The circuit court, as trier of fact, was entitled to

assess appellant’s explanation for his failure to pay and conclude that his nonpayment was

not excusable. We defer to the circuit court here and hold its finding is not clearly against

the preponderance of the evidence. Because the State need only show that the appellant

committed one violation in order to sustain a revocation, we decline to address the other

bases for the court’s revocation. Richardson, 85 Ark. App. at 349, 157 S.W.3d at 538.

II. Preliminary Hearing

For his second point on appeal, appellant contends that the circuit court erred by

denying his motion to dismiss the revocation. His motion alleged that the court had failed

to provide a preliminary hearing pursuant to Ark. Code Ann. § 16-93-307(a), and that it

should therefore dismiss the petition. That statute provides that a defendant arrested for

violation of probation is entitled to a preliminary hearing “to determine whether there is

reasonable cause to believe that he or she has violated a condition” of probation. Id. The

hearing is to be held “as soon as practicable after arrest.” Id. A preliminary hearing is not

required if the defendant waives the hearing, the revocation is based on the defendant’s

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commission of an offense for which he has been tried and found guilty, or the revocation

hearing is held promptly after the arrest in the judicial district where the alleged violation

occurred or where the defendant was arrested. Ark. Code Ann. § 16-93-307(d) (Repl.

2016). It is within the circuit court’s discretion to grant or deny a motion to dismiss.

McClanahan v. State, 2010 Ark. 39, at 3, 358 S.W.3d 900, 901–02. When a court’s ruling

on a matter is discretionary, we will not reverse unless there has been an abuse of that

discretion. Id.

A brief recitation of the procedural history is helpful on this point. Appellant was

arrested on probation-revocation warrants on December 20, 2014. He had a first appearance

on December 23, 2014; his next court date was set for January 6, 2015. He appeared with

counsel on January 6 and requested a continuance until January 20, 2015, which the court

granted. He appeared with different counsel on January 20 and sought a continuance until

February 10, 2015. On February 10, he appeared and requested a transfer of the case to a

different division where the other two petitions were scheduled. On February 17, 2015, he

appeared with new counsel and again sought a continuance, which was granted until April

27, 2015, with a pretrial date of April 14, 2015. On April 14, 2015, appellant did appear for

the pretrial conference but again sought and was granted a continuance until July 27, 2015.

On July 27, appellant sought and was granted a continuance until October 26, 2015, because

he had filed a federal lawsuit against his counsel, who then requested to withdraw. On

September 29, 2015, new counsel was appointed, and appellant sought a continuance until

February 22, 2016. Again, on February 22, appellant sought and was granted a continuance

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until March 22, 2016. On March 1, 2016, appellant filed a motion to dismiss for failure to

provide a preliminary hearing since he was incarcerated. A hearing was set on the motion

for April 5, 2016. At appellant’s request, that hearing was continued until May 17, 2016.

At the hearing on May 17, appellant’s counsel argued that the only appropriate

remedy for failure to have a preliminary hearing was dismissal of the petition to revoke. At

that point, the court held a preliminary hearing at which appellant’s Arkansas probation

officer testified about appellant’s violation of the conditions of probation: that appellant had

been arrested in Texas in August 2014 and charged with possession of a controlled substance

for being found in possession of methamphetamine, Viagra, and hydrocodone; that appellant

had failed several drug tests; and that appellant had not made any court-ordered payments

to Miller County despite his having been informed of the continuing obligation to do so

when his probation was transferred to Texas in January 2014. One of the officers at the

scene of appellant’s arrest in August 2014 also testified about the circumstances surrounding

the arrest. Appellant testified, admitting that he had never asked for a preliminary hearing

before his motion in March 2016, more than a year after being arrested for probation

violations. At the close of the hearing, the court found that there was reasonable cause to

hold a revocation hearing and set the hearing for June 14, 2016.

The court entered an order on June 14, 2016, denying appellant’s motion to dismiss.

The court found that a magistrate had made a determination of probable cause when it

issued the warrant for appellant’s arrest on the probation violations. The court also found

that appellant had waived the right to a preliminary hearing by failing to request one until

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more than a year after his arrest and by seeking continuance after continuance rather than

requesting a preliminary hearing. The court noted that the first revocation hearing was

scheduled within thirty days of his arrest but that appellant had filed for a continuance instead

of seeking a preliminary hearing or proceeding to the merits of the revocation. The court

found that the delays had been caused by appellant, and a preliminary hearing had been held

as soon as practicable after his request. Finally, the circuit court found that appellant had

failed to demonstrate prejudice from the delay in holding a preliminary hearing.

We agree with the circuit court that appellant waived his right to have a preliminary

hearing before the preliminary hearing was held on May 17, 2016. The initial revocation

hearing was set to take place within thirty days of appellant’s arrest. Appellant asked and was

granted nine transfers or continuances from January 6, 2015, through May 17, 2016, when

the court held a preliminary hearing at appellant’s request. He never requested a preliminary

hearing, although he repeatedly requested continuances; rather, he filed a motion to dismiss

for failure to have a preliminary hearing over a year after his arrest. Appellant’s failure to

either request a hearing or object to the timeliness of such a hearing for more than a year

constitutes a waiver. See Lane v. State, 2015 Ark. App. 672, at 4–5 (holding appellant waived

right to demand that revocation hearing be held within sixty days as required by statute

where he failed to object to timeliness during the sixty-day period). Further, when appellant

raised the issue, the circuit court promptly held a preliminary hearing and found that

reasonable cause existed to pursue the revocation. The revocation hearing was held a month

later. Appellant must be able to demonstrate prejudice resulting from any failure to adhere

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to the statute. See Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988). Appellant failed to

demonstrate how the delay, which the circuit court determined was caused by his repeated

requests for continuances, prejudiced him. Accordingly, we hold that the circuit court did

not abuse its discretion by denying appellant’s motion to dismiss the revocation.

Affirmed.

ABRAMSON and HARRISON, JJ., agree.

Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.

Leslie Rutledge, Att’y Gen., by: Ashley Priest, Ass’t Att’y Gen., for appellee.

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