2014 Ark. App. 310

ARKANSAS COURT OF APPEALS

DIVISION I
No. CR-13-760

Opinion Delivered: May 14, 2014

APPEAL FROM THE CRAWFORD
BRANDON MICHAEL ROGERS COUNTY CIRCUIT COURT
APPELLANT [NO. CR-2008-1 A]

V. HONORABLE GARY COTTRELL,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

RHONDA K. WOOD, Judge

Appellant Brandon Rogers argues that the circuit court erred in revoking his

suspended imposition of sentence by finding that his nonpayment of restitution, fines,

costs, and fees was willful and inexcusable. We find no error and affirm.

Rogers pleaded guilty to the charge of battery in the second degree and received a

suspended sentence of six years. As a part of his plea agreement, he was ordered to pay

restitution, fines, costs, and fees. The State filed a petition and an amended petition for

revocation alleging that Rogers ceased making payments on these obligations. After a

revocation hearing, the circuit court found that Rogers had inexcusably violated the

conditions of his suspended sentence by not paying his restitution, fines, costs, and fees.

A circuit court may revoke a defendant’s suspended imposition of sentence if it

finds by a preponderance of the evidence that the defendant has inexcusably failed to

comply with a condition of the suspension.

Ark. Code Ann. § 16-93-308

(d) (Supp. 2013).

2014 Ark. App. 310



Because this determination 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

157 S.W.3d 536

 (2004). Where the alleged violation is failure to make court-

ordered payments, the failure to pay must be inexcusable. Phillips v. State,

101 Ark. App. 190

272 S.W.3d 123

 (2008).       Once the State introduces proof of nonpayment, the

burden shifts to the defendant to provide a reasonable excuse for the failure to pay.

McGuire v. State,

2014 Ark. App. 52

.

       At Rogers’s revocation hearing, his entire file was made part of the record. The

State introduced evidence that, other than one exception, he had not made any payments

toward restitution, fines, costs, or fees in over three years. Rogers testified that he was

aware of these obligations, but contended he had trouble obtaining work due to his prison

record. He also admitted that he worked for a hotel in 2012 and was recently hired at

Burger King. Rogers claimed that he saved money from his new job and was planning to

use it along with his brother’s casino winnings to make a payment towards his arrearages,

but that the money was stolen from his car a few nights before the hearing.

       Due to the uncontroverted evidence that Rogers violated terms of his suspended

sentence, the question becomes whether his violation was inexcusable. The circuit court

found Rogers’s testimony self-serving and not credible. The court specifically mentioned

the fact that Rogers held two jobs and still failed to make any payments. Because we defer

to the circuit court’s superior position to determine issues of credibility, we cannot say

that the court was wrong to find that Rogers failed to meet his burden of showing a

reasonable excuse for his failure to pay. Therefore, we affirm.

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2014 Ark. App. 310



       Affirmed.

       WALMSLEY and BROWN, JJ., agree.

       Lisa-Marie Norris, for appellant.

       Dustin McDaniel, Attorney General, by: Nicana C. Sherman, Ass’t Att’y Gen., for

appellee.




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