Summary
In Lanfair v. State, 2013 Ark. App. 51, we held that a probationer's excuse for failing to report was not reasonable when the probationer did not maintain a stable address, had access to transportation, could have asked for directions to the probation office, and could have had his probation transferred to the county in which he was living.
Summary of this case from Cory v. StateOpinion
CACR12-398
01-30-2013
ALPHONSO LANFAIR APPELLANT v. STATE OF ARKANSAS APPELLEE
Digby Law Firm, by: Dustin McDaniel, Att'y Gen., by:
APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT, [NO. CR10-203]
HONORABLE JERRY D. RAMEY, JUDGE
AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Alphonso Lanfair appeals the circuit court's revocation of his probation. Because there was sufficient evidence to support revocation, we affirm.
On January 25, 2011, Lanfair pled guilty to two counts of possession of a controlled substance. He was sentenced to five years' probation and ordered to pay a $2500 fine plus court costs. Lanfair's conditions of probation required payment of costs and fines, reporting as directed to his supervising officer, notifying his supervising officer in advance of any change in address or employment, and paying a $25 monthly supervision fee.
On December 20, 2011, the State filed a petition to revoke Lanfair's probation. A hearing was held on February 1, 2012. Renae Hall, Lanfair's probation officer, testified that Lanfair was advised of the terms and conditions of his probation. Lanfair violated those terms by failing to report; failing to maintain stable employment or residence; and failing to pay his fines, costs, and supervision fees as required. More specifically, she testified that Lanfair only reported to her office one time—on March 11, 2011. At that time, he requested to have his probation supervision transferred to Pulaski County so that he could live with his mother. However, Lanfair's request was denied because he did not have a stable residence in Pulaski County and was living in Jackson County. Lanfair then contacted Hall and requested his supervision be transferred to Jackson County. Hall complied. However, this request was denied because he did not have a stable residence in Jackson County. Lanfair informed the Jackson County probation officer that he was moving to Pulaski County to live with his sister. The last time Hall talked with Lanfair, he was living with his wife and children in an unapproved residence in Newport, Arkansas. Hall stated that Lanfair had informed her that he could not report in Conway County because he had transportation problems. Each time she spoke with him, he reported that he was at his sister's house in Pulaski County.
Hall also testified that Lanfair had failed to complete his community service obligations and had been arrested for public intoxication. As the trial court did not revoke Lanfair's probation on these grounds, we do not address them.
All other contacts had been by telephone.
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Regarding his failure to make payments, Hall testified that Lanfair was required to begin making $75 payments on his court costs and fines in February 2011, but had yet to make any payments. He also had made only two $25 payments toward his probation fees, despite being ordered to make those payments monthly. She stated that Lanfair had informed her that he had been looking for employment, but had been unable to find work.
Lanfair testified at the hearing. He admitted that he had made only two payments since his probation began. He testified that he had been working for Temp Services in Sherwood, Arkansas, but that the work was not consistent. He only made $35 to $40 a day when working. This income was not enough to make the required payments. He testified that he was initially living with his mother and sister and was being financially supported by his father. He stated that his father had attempted to make payments for him, but a computer glitch had prevented the payments. He stated he was unaware of the problem, or he would have made other arrangements. He further asserted that he did not have any extra money because he was supporting his unemployed wife and his five children. He stated that he had only recently obtained steady employment doing carpentry work for a pastor in Jackson County.
Lanfair also admitted that he had not reported to Hall in person but had reported by phone. He explained that he had difficulty finding transportation. He stated that neither he nor his wife had a vehicle at that time and that his license had been suspended. He admitted that his sister had a vehicle and could have taken him to report to Hall, but contended that his family was not familiar with the area, which made it difficult for him to get there. He stated that he had a friend take him to his appointment once, but his friend had charged him $50, which he could not afford. He testified that, if he had been living in Conway County, he would have complied with the reporting requirements. Despite his previous statements to the contrary, he later stated he did not have any family support and that it was difficult to get to the probation office to report.
At the conclusion of the hearing, the trial court found that the State had met its burden of proving that Lanfair had inexcusably violated the conditions of his probation. The trial court found that Lanfair had failed to pay his fines and costs, failed to maintain a stable and approved residence, failed to report to his supervising officer as required, and failed to pay required probation fees. The court found that Lanfair's excuses for nonperformance were not reasonable and, thus, he had failed to put forth sufficient evidence to excuse his nonperformance. The court sentenced him to concurrent ten-year sentences on each count. It is from this ruling that Lanfair appeals. He contends that his failure to satisfy the conditions of his probation was due to his indigency and homelessness, and therefore could not form the basis for revocation.
A sentence of probation may be revoked if a trial court finds by a preponderance of the evidence that a defendant has inexcusably failed to comply with a condition of his probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2011); Denson v. State, 2012 Ark. App. 105. We give great deference to the trial court in determining the preponderance of the evidence because the trial judge is in a superior position to determine the credibility of witnesses and to determine the weight to be given their testimony. Denson, supra. The State has the burden of proof by the preponderance of the evidence but needs to prove only one violation; we will not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence. Williams v. State, 2012 Ark. App. 447. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Knotts v. State, 2012 Ark. App. 121.
Lanfair admittedly failed to abide by the terms and conditions of his probation, particularly with respect to his obligation to report to his probation officer in person. However, citing Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d 735 (1990), Lanfair argues that the trial court erred in finding that his failure to report to his probation officer was inexcusable. He notes that, like Baldridge, he did not live in the county in which he was required to report and that he lacked the transportation or the financial resources necessary to obtain transportation to report in person to his probation officer. But unlike Baldridge, Lanfair admitted that his sister, with whom he was living, had a vehicle and could have taken him to see Hall. He further asserted that he was unable to report because his family was not familiar with the area, and it was difficult for him to get there. This, however, would not prevent Lanfair from reporting as he could have easily obtained directions to the probation office. Moreover, Lanfair made his ability to report more difficult by his changing of residences. If he had maintained a stable residence, his probation could have been transferred to the county of his residence. Under these facts, we cannot say that the trial court clearly erred in finding that Lanfair inexcusably failed to comply with a condition of his probation. Because the State is only required to prove one violation of the terms and conditions of a defendant's probation in order to support a revocation of that probation, it is not necessary for us to consider Lanfair's other arguments regarding the trial court's finding that he violated the terms and conditions of his probation by failing to make required payments or failure to maintain a stable residence.
Affirmed.
GLOVER and VAUGHT, JJ., agree.
Digby Law Firm, by: Bobby R. Digby, II, for appellant.
Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.