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2014 Ark. App. 673
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-557
Opinion Delivered December 3, 2014
ISMEAL LEAL
APPELLANT APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
[NO. CR-2006-660]
V.
HONORABLE JOHN N.
FOGLEMAN, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
This is the second time this appeal is before us. Initially, it was brought as a no-merit
appeal, and on January 15, 2014, we ordered rebriefing and denied counsel’s motion to
withdraw, see Leal v. State, 2014 Ark. App. 20. This time, appellant Ismeal Leal’s new
counsel has filed a merit appeal from the April 16, 2013 revocation of his probationary
sentence by the Crittenden County Circuit Court for which he was sentenced to three years’
imprisonment in the Arkansas Department of Correction. He argues that there was
insufficient evidence to support the revocation and that the circuit court should have
considered alternative sentences. We affirm.
On June 15, 2006, appellant entered a guilty plea to a charge of possession of a
controlled substance with intent to deliver and was sentenced to eight years’ probation and
ordered to pay $2250 in fines, costs, and fees. Conditions of his probation included that he
would pay fifty dollars per month beginning August 10, 2006, until the fines, costs, and fees
Cite as 2014 Ark. App. 673
were satisfied. In January 2007, appellant reported to his probation officer with an
interpreter, requesting to have his probation transferred to Tennessee. That request was
granted.
On January 4, 2011, the State filed a petition to revoke appellant’s probation alleging
that he (1) failed to pay fines, costs, and fees as directed; (2) failed to report to probation as
directed; (3) failed to pay probation fees; (4) failed to notify the sheriff and probation of his
current address and employment; (5) departed from an approved residence without
permission; and (6) departed from the jurisdiction without permission. At the March 26,
2013 revocation hearing, the circuit court granted a dismissal motion as to the State’s
allegations that appellant failed to report and departed both his residence and the jurisdiction
without permission. However, the circuit court determined that appellant had failed to pay
fines, costs, and fees as directed in violation of the terms of his probation, revoked it, and
sentenced him to three years’ imprisonment in the Arkansas Department of Correction
pursuant to an April 16, 2013 sentencing order. Appellant filed a timely notice of appeal on
March 28, 2013.
Pursuant to Arkansas Code Annotated section 16-93-308(d) (Repl. 2011), a circuit
court may revoke a defendant’s probation at any time during its pendency if the court finds
by a preponderance of the evidence that the defendant inexcusably failed to comply with a
condition of his probation. Denson v. State, 2012 Ark. App. 105. The State need only show
that the defendant committed one violation to sustain a revocation.
Id. Great deference is
given to the circuit court in determining the preponderance of the evidence because the
circuit court is in a superior position to determine the credibility of witnesses and to
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determine the weight to be given to their testimony.
Id. A revocation will not be reversed
unless the decision is clearly against the preponderance of the evidence.
Id.
I. Sufficiency of the Evidence
Appellant argues that there was no evidence presented that he violated his probation
in Tennessee and that he was in compliance with his Tennessee probation. The State
attempted to introduce a violation report from Tennessee, but it was not admitted. Mary
Marshall, appellant’s probation supervisor, acknowledged that appellant’s fees in Arkansas
stopped when he was transferred to Tennessee. Appellant submits that there is no evidence
that $850 was owed or that it was not paid in Tennessee, and that it is not his burden to
bring someone from the Tennessee probation office.
The State shoulders the ultimate burden of proving that the appellant’s failure to pay
was inexcusable. Scroggins v. State, 2012 Ark. App. 87,
389 S.W.3d 40. Inexcusable is
defined as incapable of being excused or justified; synonyms include unpardonable,
unforgivable, and intolerable. Barbee v. State,
346 Ark. 185,
56 S.W.3d 370 (2001). Just like
the appellant in Barbee relied upon the revenue office clerk’s information, appellant claims
that he relied upon the Tennessee probation office, and the State failed to prove that his
actions were inexcusable.
We hold that the State did prove by a preponderance of the evidence that appellant
violated his probationary conditions by failing to pay his fines, costs, and fees as required. Per
appellant’s conditions, he was required to make a monthly payment of fifty dollars toward
his fines, costs, and fees until those obligations were completed. Probation Officer Mary
Marshall confirmed that the probationary conditions were explained to and accepted by
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appellant. Marshall stated that appellant reported to her in January 2007 with an interpreter,
and at that time, his request to have his probation transferred to Tennessee was granted.
Amy Peyton, a Crittenden County Sheriff’s Office employee whose duties include
collecting probationers’ financial obligations, testified that in addition to the original order
to pay $2250 fines, costs, and fees, appellant had also been assessed a $720 transportation
charge for his transportation from Texas to Crittenden County. Peyton explained that
appellant had paid a total of $845 towards his debt since August 2006, that he had an
outstanding balance of $2565, and that he had not made a payment since September 2010.
Peyton testified that appellant had provided no explanation as to why he stopped making
payments.
Appellant did not rebut this evidence. Once the State introduced evidence of
nonpayment, the defendant bears the burden of going forward with some reasonable excuse
for his failure to pay. Amos v. State, 2011 Ark. App. 638. Here, the State introduced
evidence of nonpayment, and the burden of production shifted to appellant to offer a
reasonable excuse. Despite appellant’s probationary transfer to Tennessee in 2007, he
dutifully continued to make his monthly payments until September 2010. Appellant offered
nothing either to explain his subsequent nonpayment or to prove that he had become current
on his payments. Therefore, the circuit court did not err in considering his payment
delinquency as a basis for revocation.
II. Alternative Sentences
Appellant also contends that, pursuant to Arkansas Code Annotated section 16-93-309
(Repl. 2011), the circuit court should have continued his probation and not incarcerated
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him. He argues that the circuit court’s ruling violated his due-process rights and was
excessive under these facts.
This argument was not raised below. We have long held that a defendant who makes
no objection at the time sentence is imposed has no standing to complain of it. Pfeifer v.
State, 2012 Ark. App. 556. Thus, because this argument is being raised for the first time on
appeal, it not preserved for appellate review.
Alternatively, we hold that the judgment entered was lawful and is affirmed. If a court
revokes a suspension or probation, the court 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. Ark. Code Ann. § 16-93-308(g)(1)(A) (Repl.
2011). Possession of a controlled substance with intent to distribute, the crime for which
appellant received probation, is a Class C felony and carries a term of imprisonment of not
less than three years nor more than ten.
Ark. Code Ann. § 5-4-401(a)(4) (Repl. 2006). The
conditions of probation signed by appellant warned him that any violation could result in a
sentence of up to ten years’ imprisonment in the Arkansas Department of Correction and/or
a fine of up to $10,000. Because appellant was sentenced within the range allowed by the
applicable statutes, the revocation and sentence are affirmed.
Affirmed.
WALMSLEY and VAUGHT, JJ., agree.
Ogles Law Firm, P.A., by: John Ogles, for appellant.
Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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