Opinion
CACR05-95
Opinion Delivered January 11, 2006
Appeal from the Crittenden County Circuit Court, [CR-2002-647], Honorable C. David Burnett, Circuit Judge, Affirmed; Motion Granted.
Appellant, Robert Lee Turner, pleaded guilty to the offense of theft of property and was sentenced to supervised probation for a period of five years. His judgment and commitment order in that case was filed on September 18, 2002. In March 2003, the State filed its petition to revoke appellant's probation, and that petition was amended on September 1, 2004. Following a hearing, appellant's probation was revoked, and he was sentenced to fifteen years in the Arkansas Department of Correction.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw, and an accompanying brief, asserting that the appeal is wholly without merit. Appellant has filed pro se points of appeal, to which the State has responded. We grant counsel's motion to withdraw, and we affirm the revocation of appellant's probation.
To revoke probation or a suspension, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). The State bears the burden of proof but needs only to prove that the defendant committed one violation of the conditions. Id. When appealing a revocation, the appellant has the burden of showing that the trial court's findings are clearly against the preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Id. 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 trial judge's superior position. Id.
The first petition to revoke, filed in March 2003, set out the following alleged violations: 1) failure to pay fines and costs; 2) failure to report as directed; 3) failure to pay probation fees; 4) failure to notify sheriff and probation of current address and employment. The amended petition to revoke, filed on September 1, 2004, added the alleged violations of failure to appear and committing the offenses of burglary, theft, and theft by deception. The trial court did not allow the State to put forth evidence on the amended petition to revoke. Rather, the trial court revoked appellant's probation on its findings that appellant violated his probation by his failure to pay fines, costs, and fees; that he failed to report to probation officers as directed; and that he failed to advise officers of his place of employment and proper address. The court went on to state, "The primary reason is a willful failure to report to Probation Office as directed and the cavalier attitude that he can report whenever he feels like it." We have concluded that there is no clear error in the trial court's findings.
Paragraph One of appellant's conditions of probation provides: "The defendant shall pay all fines, court costs, and restitution as provided in the Court's Judgment and Disposition Order or Judgment and Commitment Order[.]" Paragraph Eight provides: "The defendant shall promptly notify Probation Officer and Sheriff of any change of address or employment[.]" Paragraph Nine provides: "If on probation, the defendant shall cooperate with Probation Officer and report to him/her as directed and permit him/her to visit at the defendant's home, place of employment, or elsewhere."
At the revocation hearing, Sharika Lewis, who is employed by the Department of Community Correction, testified that when she "inherited" Robert Lee Turner on December 16, 2003, she found in his probation file a violation report of February 16, 2003, from his previous probation officer. Ms. Lewis reported that the previous probation officer indicated in her earlier report: 1) that appellant went on probation September 18, 2002, did his intake on September 23, 2002, and had not been back; 2) that he was given an appointment for October 21, 2002, but did not report; 3) that she had sent him a letter December 26, 2002, to report January 10, 2003, and he didn't report; 4) that she tried to call his number and it was disconnected; 5) that she called his mother's home phone and left a message for him to report February 6, 2003, and to bring $125 in delinquent probation fees; 6) that she also called the phone number of two aunts and asked them to give appellant the same message; 7) that on February 6, 2003, an uncle showed up with $125; 8) that a person who identified himself as appellant called, gave some phone numbers, and was told to report on February 14, 2003; however, appellant did not show up for that appointment.
Ms. Lewis testified that when she received appellant as a probationer on December 16, 2003, it was after he had been arrested on the revocation petition. She said that he reported that day, but did not pay on his fees, and said that he would try "to get something in on his fine and costs." She stated that she saw him again on January 12, 2004; that he did not make a payment at that time; that he was not working; and that he told her he was taking care of his aunt and uncle. She said that his next scheduled appointment was for January 21, 2004, and that he failed to report. She said that she received his report on February 12, 2004, and that she next saw him on February 17, 2004, at which time he had a $50 money order. She explained that the last time she received a monthly report from appellant was on May 14, 2004; that a home visit was conducted on June 23, 2004, at which time she spoke with the aunt with whom appellant was allegedly living; and that the aunt told her that she had not seen him in a couple of months and that he had not been doing anything for them. Ms. Lewis stated that she had two addresses in West Memphis for appellant, one on Cornell Street (the aunt and uncle's house) and one on Ninth Street. She stated that she never found him at either address. She said that the last time she got something on his fees was February 17, 2004, when he paid $50; that he currently owed $275; that she had reviewed the terms and conditions of his probation with appellant; and that he was aware that he had to pay his fines and costs.
Appellant also testified at the revocation hearing. He stated that when he went on probation in 2002, he was not married and was unemployed; that he did odd jobs to make $20-$25 here and there; that he had a plumbing background but that it was hard to find employment in that field because of his felony conviction; that he actively sought employment every day; and that he "did good" to make $200 to $300 a month. He explained that when he went on probation, some relatives let him stay with them and that he paid for food and helped out with living expenses. He stated that he would not wilfully fail to pay his fine if he had the means to pay it.
Appellant explained that the two addresses were his grandmother's house on Ninth Street and his aunt and uncle's house on Cornell Street. He stated that he agreed to take care of them for room and board and that another uncle told him he would pay $125 on his probation fees. He explained that when he first went on probation, his probation officer was Paul Thomas; that he went to stay with his grandmother for about a month; that he then stayed with his mother in Memphis; that Paul Thomas gave him passes to go to Memphis; that the only way his mother's telephone numbers could have been disconnected was if she moved and had a different number; and that the probation office knew how to get in contact with him.
Appellant testified that when he tried to call, "Paul Thomas no longer worked there or something, and I never did know who my probation officer was." He stated that "the allegations about all the times I didn't report is not totally accurate." He said that he knew he had an obligation to report and that he tried his best to do so. He said that if he did not report, there was a reason, "such as if my uncle had an emergency and had to go to the hospital, I would call her to let her know what happened and she would give me another date and I would make that report." He said that on several occasions, Ms. Lewis called the house where he was staying with his aunt and uncle, and she would give him another date. He said that from December 2003 until May or June 2004, he had tried to report like he was supposed to do; that he paid on his fees when he had the money; and that the addresses he gave the probation officer were good. He told the court that he "came into a rough spot" where he just did not have the money, and given another opportunity, he would try to make payments when he could.
In short, though Ms. Lewis did testify that appellant's reporting was satisfactory between December 16, 2003 and May 2004, a period of five months or less, she also reported that appellant's records showed that he failed to report from his intake on September 23, 2002, until he was arrested on December 16, 2003, on a revocation petition. In addition, she testified that he had not continued to report after May 2004. Appellant offered excuses, but it was the trial court's role to judge matters of credibility. See Richardson v. State, supra.
For his first pro se point of appeal, appellant contends that the trial court's finding that he willfully failed to report to his probation officer conflicted with the probation officer's testimony and that he was given a biased hearing. This point has been adequately addressed in the previous discussion.
For his second pro se point, appellant contends that his attorney did not represent him effectively. Appellant did not raise this issue below and is therefore barred from raising it on appeal. As this court explained in Alexander v. State, 55 Ark. App. 148, 154, 934 S.W.2d 927, 930 (1996):
In regard to appellant's pro se argument that his counsel was ineffective, we do not consider ineffective assistance of counsel as a point on direct appeal unless that issue has been considered by the trial court. Edwards v. State, supra. Even constitutional arguments cannot be raised for the first time on appeal. See Wetherington v. State, 319 Ark. 37, 42, 889 S.W.2d 34, 37 (1994). And, as the State notes in its brief, if the appellant should wish to raise an ineffective-assistance-of-counsel claim, he may do so in a petition pursuant to Arkansas Rule of Criminal Procedure 37. See, e.g., Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993).
For his third pro se point, appellant contends that when he received the five years' probation, the stipulations for a violation of its terms did not consist of five to twenty years in the Arkansas Department of Correction. Appellant is wrong. On the second page of appellant's conditions of probation, he was warned that a possible consequence of violating any of the conditions could result in his "imprisonment at hard labor in the Arkansas Department of Correction for not less than 5 years, nor more than 20 years, and by a fine not exceeding $15,000." The document is signed by appellant.
For his fourth pro se point, appellant contends that the court "mainly used the old petition and what occurred before October 2003 to revocate me." It is difficult to understand what appellant is arguing under this point, but he appears to assert that his revocation was based upon the original petition, which he asserts was served on him in October 2003, while the revocation hearing occurred almost a year later in October 2004. Arkansas Code Annotated section 5-4-309(d) (Supp. 2001) provides:
If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.
Thus, this point is wholly without merit and could not serve as a basis for reversal.
For his last pro se point, appellant contends that fifteen years in the Arkansas Department of Correction for not reporting to his probation officer "was in excess and a harsh judgment." The problem with his argument is that the fifteen-year sentence relates back to his conviction for the offense of felony theft of property, and it could have been imposed by the court when he originally pleaded guilty to that offense. Arkansas Code Annotated section 5-4-309(f)(1)(A) (Supp. 2003) provides:
If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he or she was found guilty.
As a Class B felony, the sentencing range for this offense is five to twenty years. Ark. Code. Ann. § 5-4-401 (Repl. 1997). The fifteen-year sentence imposed by the trial court falls within that range.
Based upon our review of the entire record and the briefs presented, we conclude that there has been sufficient compliance with Rule 4-3(j) such that an appeal of appellant's probation revocation would be wholly without merit. Accordingly, counsel's motion to be relieved is granted, and the revocation of appellant's probation is affirmed.
Affirmed; motion granted.
HART and BAKER, JJ., agree.