Von Holt v. State

Cite as 2017 Ark. App. 314

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-870

Opinion Delivered May 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 1 and was sentenced 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 deliver, 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 or entering and to pay a $100 fee for his public defender.

The State petitioned to revoke appellant’s suspended sentence on December 30,

1
Four counts of breaking or entering, one count of possession of methamphetamine
with intent to deliver, and one count of possession of drug paraphernalia.
Cite as 2017 Ark. App. 314

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 paraphernalia, 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 purchase 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

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Cite as 2017 Ark. App. 314

later test positive for methamphetamine, 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, appellant had been ordered to

pay restitution to the victims of his original breaking-or-entering conviction along with a

fee for his public defender. 2 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 since 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 conditions of his suspended

sentence. Primarily, appellant argues that the State failed to establish by a preponderance of

the evidence a prima facie case that appellant was trafficking methamphetamine.

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.

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Cite as 2017 Ark. App. 314

As a second point on appeal, appellant asserts that the State did not adequately prove

that his failure to pay restitution and public-defender fees was willful 3 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, 355 Ark. 630, 633, 144 S.W.3d 254, 255 (2004); Ark. Code Ann. §

5-4-309(d) (Supp. 2003). On appeal, a trial court’s revocation of a suspended sentence will

be affirmed unless the decision is clearly against the preponderance of the evidence. Jones,

355 Ark. at 633, 144 S.W.3d at 255; Simington v. State, 2016 Ark. App. 514. The State’s

burden of proof for revocation of a suspended sentence—preponderance of the evidence—

is lower than that required to sustain a criminal conviction. Jones, 355 Ark. at 633, 144

S.W.3d at 255. Therefore, evidence that is insufficient for a criminal conviction may be

sufficient for revocation of a suspended sentence. Id., citing Bradley v. State, 347 Ark. 518,

65 S.W.3d 874 (2002). Where multiple SIS violations are alleged, a trial court’s revocation

will be affirmed if the evidence is sufficient to establish that the appellant violated any one

condition of the suspended imposition of sentence. Simington, 2016 Ark. App. 514, at 3

(citing Doyle v. State, 2009 Ark. App. 94, at 4, 302 S.W.3d 607, 609); Cheshire v. State, 80

Ark. App. 327, 331, 95 S.W.3d 820 (2003).

At the revocation hearing, the State presented multiple grounds for revocation:

3
Appellant’s counsel raised this argument below when moving for a directed verdict.

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Appellant had committed offenses of trafficking of a controlled substance, possession of a

controlled substance with purpose to deliver, possession of drug paraphernalia, conspiracy

to deliver methamphetamine, and failure 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 evidence, 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 profile 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 a reasonable excuse

for his failure to pay. See Robertson v. State, 2015 Ark. App. 113, at 2; Bohannon v. State,

2014 Ark. App. 434, 439 S.W.3d 735.

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 evidence. Therefore, we must affirm.

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Cite as 2017 Ark. App. 314

Were we to reach the allegations relating to methamphetamine and drug

paraphernalia, we would also affirm. Detective Napier testified that when they executed 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

Napier 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 a 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, 2016 Ark. App. 176, at 6 (citing Reyes v. State,

2015 Ark. App. 55, 454 S.W.3d 279). “If we hold that a trial court’s sentence was illegal

and that the error had nothing to do with guilt, but only with the illegal sentence, we can

correct the sentence in lieu of remanding.” Id. (citing Walden v. State, 2014 Ark. 193, at 3,

433 S.W.3d 864, 867).

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Cite as 2017 Ark. App. 314

The original sentencing order shows that appellant was given 60 months in the ADC

for his breaking-or-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 sentence 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 illegal. 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-month sentence on the breaking-or-entering convictions.

Affirmed as modified.

GRUBER, C.J., and HIXSON, 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.

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