Bryant v. State

• Decision Date: 21 September 2022
• Docket Number: CR-22-51
• Parties: JOSHUA BRYANT APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Court of Appeals

2022 Ark.App. 347

JOSHUA BRYANT APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-22-51

Court of Appeals of Arkansas, Division II

September 21, 2022

APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT [NO. 15CR-19-128] HONORABLE JERRY DON RAMEY, JUDGE

K. "Presley" Hager Turner, for appellant.

Leslie Rutledge, Att'y Gen., by: Clayton P. Orr, Ass't Att'y Gen., for appellee.

KENNETH S. HIXSON, JUDGE

Appellant Joshua Bryant appeals after the Benton County Circuit Court revoked his suspended imposition of sentence (SIS) on four counts of possession of a firearm by certain persons and sentenced him to serve an aggregate sentence of sixty months' imprisonment in the Arkansas Department of Correction. Appellant argues on appeal that the circuit court erred in finding that he willfully violated the conditions of his SIS. We affirm.

I. Relevant Facts

On October 7, 2019, appellant entered a negotiated plea of guilty to four counts of possession of a firearm by certain persons, a Class D felony, in violation of Arkansas Code Annotated section 5-73-103 (Supp. 2021). A sentencing order was filed on October 8, 2019. Appellant was sentenced to forty-eight months' SIS conditioned on the payment of his fines and fees at the rate of $60 per month beginning thirty days after release with subsequent payments made on the first day of each month thereafter.

On January 26, 2021, the State filed a petition to impose appellant's SIS based on its allegation that appellant had violated the terms and conditions of his SIS in that he had failed to pay his court-ordered fines and fees as directed by the sentencing order. After multiple continuances, a revocation hearing was held on July 21, 2021.

At the revocation hearing, the State admitted into evidence without objection copies of appellant's previous sentencing order, his guilty-plea statement, and the terms and conditions of his SIS. A certified copy of a ledger from the Conway County Circuit Clerk reflecting the payments appellant made toward his fines and fees was also admitted without objection. The ledger reflected that appellant had paid only $100 on April 19, 2021, and $40 on May 19, 2021. Therefore appellant had an accumulated unpaid balance of $1,740.

Appellant was the only witness to testify. He testified that he did not fully read the terms and conditions of his SIS, but he admitted that he understood he was required to make monthly payments toward his fines and fees. He also admitted that he had not made regular or even substantial payments since he had entered his negotiated plea in October 2019. He acknowledged that he had owed $1,880 and that he only recently paid a total of $140 in April and May 2021, four months after his arrest for violating the terms and conditions of his SIS. He further admitted that he did not make any further payments in June or July 2021, leaving an unpaid balance of $1,740.

In his defense, appellant claimed that he had been unable to pay his monthly financial obligations. He explained that he had been sporadically employed since October 2019 but that he had been "pretty much working for room and board, and, like, a place to live, and food in my belly." He testified that he had initially worked for a pawn shop but stated that he was paid only "$20 every other day or something like that, just for spending money and for cigarettes." He also testified that he had been homeless for the last year that his driver's license had been suspended, and that he did not have a vehicle. Appellant further explained that he had been hospitalized approximately a month and a half before the revocation hearing after he had been hit in the head with a pipe by the son of his former codefendant and former coworker. He also stated that he had contracted COVID-19 around July 10, 2021.

Despite his failure to pay his monthly financial obligations, appellant promised that he would begin making payments. Appellant alleged that he had recently moved in with his uncle and had "mend[ed] some bridges to get back into a stable environment." He testified that he was starting a new job the next day that would pay him $12 an hour and that he was enrolled in online technical classes starting that fall. He stated that his current expenses included only clothing and a monthly phone bill of $50. Further, he was awarded a grant to pay for his classes. Therefore, he estimated that he would be able to pay the remainder of his fines and fees within ten weeks if given the opportunity.

On cross-examination, appellant admitted that he had spent approximately $30 to $40 a week at times on cigarettes. Appellant further admitted that he previously had a job at a Twin Rivers Foods plant for two months before he voluntarily quit after his former coworker and roommate quit. He finally admitted that he had not tried to relocate somewhere near one of those plants to obtain further work.

After hearing oral argument, the circuit court issued the following relevant oral findings:

It has special considerations when you are looking at [payment issues] being the only element.

How it breaks down is after evidence of nonpayment, the burden shifts to the defendant to provide a reasonable excuse.

Looking at Arkansas Code Annotated 54-204, which states "that the Court must consider the defendant's employment status, earning ability, financial resources, willingness, and other circumstances regarding the ability to pay."

What the Court then looks at is the factors involving those matters. So, I am going to start off with credibility.

One of the jobs of the Court is to judge credibility. And I think the relevant matter to the Court was that it took the request by the State to determine that he had actually worked at Twin Rivers and had quit on his own decision. I understand there's the argument that there was a ride or whatever.

But I know that this morning I graduated a guy from Drug Court that rode his bicycle from Adkins to come to Court here, and to do things and participate in Drug Court. And made it through the Drug Court and graduated and expunged his stuff. So I know that a bicycle is possible in this area.

Then I look at modified effort to seek employment or borrow money. I don't have any evidence in front of me that all of these people you have talked about that would support you, that you have asked to borrow any money.

So then, I look at the effort to seek employment. When I'm looking at the testimony. The plea was accepted on October 7, 2019. The testimony to the Court was you were off work for a year and a half.

Well, if you have been off work for a year and a half backward, then there was a period that you were working from October 7, '19. And the record clearly reflects there are no payments made to during that period of time. Also, during the period of time he was working at Twin Rivers, there's no payments.

And the testimony in front of the Court that you could start tomorrow, and start earning money and making a job. Well, the question is, why didn't you do that yesterday? Why didn't you start yesterday? Why didn't you start last week? If it is so easy to start tomorrow, why hadn't that been done?

Then I'm looking at whether there was money spent on nonessential items. You spent money on cigarettes, and a telephone.

So clearly there's these issues in which the Court is going to find that you are willing -- that you had the ability to pay and to work. You just decided not to.

So the Court is going to find that you inexcusably violated the conditions of Suspended Imposition of Sentence.

I also show that you paid in April or May in 2021, but not in June. I understand the COVID issue was in July, but you skipped a month at that point, already.

So what I am going to do is, as I stated earlier, I am going to find that you -- I am going to find that the Court has carefully considered totality of the evidence before it. The credibility of

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