Patterson v. State

Cite as 2017 Ark. App. 359

ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-16-988

Opinion Delivered May 31, 2017

ANGELA R. PATTERSON APPEAL FROM THE POINSETT
COUNTY CIRCUIT COURT
APPELLANT [NO. 56CR-12-314]
V.
HONORABLE JOHN N. FOGLEMAN,
STATE OF ARKANSAS JUDGE

APPELLEE AFFIRMED

DAVID M. GLOVER, Judge

Appellant Angela Patterson appeals the Poinsett County Circuit Court’s revocation

of her probation, arguing that the sole condition for revocation was not expressly set out in

the terms of her probation. We affirm the revocation of her probation.

In October 2013, Patterson pleaded guilty to possession of drug paraphernalia, a Class

D felony, and was placed on two years’ probation. In February 2015, the State filed a

petition to revoke her probation, alleging Patterson had violated the terms of her probation

by testing positive for amphetamines on four occasions and marijuana on two occasions and

by admitting to using Soma on one occasion; by testing positive for alcohol on two

occasions; by failing to report for scheduled probation-office visits on four occasions; and

by failing to report for counseling on eight occasions. After a hearing on the petition to

revoke, the circuit court revoked Patterson’s probation specifically on her failure to report

for counseling assessment on February 11, 2015, and sentenced her to two years in a regional
Cite as 2017 Ark. App. 359

correction facility. Patterson appeals, arguing the circuit court erred in revoking her

probation on a condition not expressly set out in the written terms of her probation.

A trial court may revoke a defendant’s probation at any time prior to the expiration

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

inexcusably failed to comply with a condition of his or her probation. Kidwell v. State, 2017

Ark. App. 4, 511 S.W.3d 341. The State has the burden of proving a condition of probation

has been violated; proof of only one violation must be shown to sustain a revocation. Baney

v. State, 2017 Ark. App. 20, 510 S.W.3d 799. The trial court’s findings are affirmed on

appellate review unless they are clearly against the preponderance of the evidence. Id. The

appellate courts defer to the trial court’s superior position to determine credibility and the

weight to be accorded testimony. Kidwell, supra.

Patterson argues on appeal, citing Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980),

that the probation condition on which the trial court revoked her probation was not in

writing and therefore cannot form the basis for revocation. Specifically, Patterson focuses

on the allegation in the State’s petition for revocation that states, “Condition #15 Program

Participation – Patterson failed to report for counseling/assessments on . . . 2/11/2015.”

Condition 15 in the written terms of Patterson’s probation states, “You must participate in,

and are obligated for the expense of, any community based programs (such as NA and AA)

deemed necessary by any supervising officer.” Patterson argues this condition does not

expressly state a single absence from a community-based program would equate to the

revocable action of failing to participate and therefore cannot form the basis for revocation.

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Cite as 2017 Ark. App. 359

Reviewing the written terms of Patterson’s probation, as well as the State’s allegation

in the petition for revocation, it is clear the State erroneously misnumbered the allegation

in which it alleged Patterson failed to report for counseling, as that term of probation is

contained in condition 14, which provides, “You must submit to, and are obligated for the

expense of, any non-residential rehabilitative, medical, counseling, or psychiatric program

deemed necessary by your supervising officer, for such period of time as may be

recommended by the treating institution or person.” At the revocation hearing, Michael

Jones, Patterson’s supervising probation officer, testified Patterson was scheduled to report

to drug counseling on February 11, 2015, but failed to do so. Patterson offered no reason

for missing the February 11 drug-counseling appointment, and it was considered an

unexcused absence. Officer Jones’s unrebutted testimony supports the trial court’s

revocation of Patterson’s probation based on the State’s allegation that she failed to submit

to counseling as mandated by the written terms of her probation requiring her to submit to

any counseling deemed necessary by her probation officer.

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Benjamin W. Bristow, for appellant.

Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.

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