Geeslin v. State, CR–16–980

• Citation: 533 S.W.3d 132
• Decision Date: 01 November 2017
• Docket Number: No. CR–16–980,CR–16–980
• Parties: James Christopher GEESLIN, Appellant v. STATE of Arkansas, Appellee
• Court: Court of Appeals of Arkansas

533 S.W.3d 132

James Christopher GEESLIN, Appellant

v.STATE of Arkansas, Appellee

No. CR–16–980

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: November 1, 2017

Cullen & Co., PLLC, Little Rock, by: Tim J. Cullen, for appellant.

Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., Little Rock, for appellee.

BART F. VIRDEN, Judge

The Faulkner County Circuit Court revoked appellant James Geeslin's suspended sentence upon finding that he had violated the conditions of his suspension by possessing a firearm. He was sentenced to twenty years' imprisonment. Geeslin raises two arguments on appeal: (1) the trial court had no authority to revoke his suspended sentence because there was no proof that he had received statutory notice of the conditions, and (2) the trial court should have stayed the revocation proceedings until after the adjudication of the related federal gun charges. We affirm.

I. Procedural History

On February 2, 2010, Geeslin pleaded guilty to six felonies, including aggravated residential burglary, terroristic act, possession of a firearm by a felon, and three counts of aggravated assault. In a judgment-and-commitment order dated February 2, 2010, Geeslin was sentenced to a total of twenty years in the Arkansas Department of Correction, and he received twenty years' suspended imposition of sentence (SIS) related to the possession-of-a-firearm conviction. The record contains a document entitled "Conditions of Suspension," which is dated February 2, 2010, and is signed by both Geeslin and the circuit judge. On July 7, 2010, the judgment-and-commitment order was amended to allow Geeslin more jail-time credit. The order was amended again on May 6, 2015. A different judgment-and-commitment-order form was used; the order contained minor changes; and a box was marked "no" next to whether "conditions of disposition or probation are attached."

Geeslin was released from prison in June 2015. In January 2016, he was arrested by the North Little Rock Police Department and later charged with being a felon in possession of a firearm. On February 9, 2016, the State filed a petition to revoke, alleging that Geeslin had violated the conditions of his suspension by "receiv[ing] new charges." On May 10, 2016, the United States District Court of the Eastern District of Arkansas indicted Geeslin for possessing firearms and ammunition. Following a revocation hearing on July 15, 2016, a judgment-and-commitment order was entered on July 19, 2016, revoking Geeslin's SIS and sentencing him to twenty years' imprisonment for possessing a firearm.

II. Revocation Hearing

At the hearing, Geeslin testified that after he had entered his plea on February 2, 2010, he was immediately transported to the Arkansas Department of Correction. He claimed that he had not seen a probation officer or any other officer of the court before being transported to prison and that no one had visited him in prison to review the conditions of his suspension. Geeslin admitted having signed the "Conditions of Suspension," but he insisted that he had not received a copy of those conditions. He acknowledged having received all of the other paperwork "but not [his] suspended imposition of sentence paperwork." He testified that he was unaware of the amended orders.

Deputy Don Fulmer with the Faulkner County Sheriff's Office testified that he started working as a bailiff part time in 2009 and full time in 2012 for Judge Clawson and Judge Reynolds. He testified that, although he had no personal recollection of having served Geeslin with a copy of the conditions of suspension, "[t]hey either get a copy in court of their judgment with all their paperwork when they plead guilty or they're given a copy at the jail. That's given to them in every case."

The trial court concluded that Geeslin had received adequate notice of the written conditions of his suspension at the time he entered his plea, as reflected by his signature on the written conditions. The trial court then proceeded with testimony related to Geeslin's arrest on January 1, 2016. Although Geeslin does not appear to challenge the sufficiency of the evidence with respect to his revocation, the following is a summary of the testimony regarding the new felon-in-possession-of-a-firearm charge.

Joshua Forney, a patrolman with the North Little Rock Police Department, was dispatched to a residence based on an anonymous complaint about a possible breaking or entering. He saw Geeslin standing next to the bed of a red Ford truck that had been backed into a driveway, and a pump-action shotgun was in plain view on the front seat of the truck. During a patdown of Geeslin's person, Forney found a .25–caliber handgun with a full magazine in Geeslin's "right rear pocket." In a front pocket of Geeslin's pants, Forney found another full magazine, a baggie containing ammunition for the handgun, and six shotgun shells. Forney said that he did not recall Geeslin's having worn a jacket that night and did not collect any jacket as evidence. Although the truck was not registered to Geeslin, Geeslin claimed that it belonged to him.

Geeslin's brother, Justin Geeslin, testified that he and his brother had come from Conway to gather their father's belongings at a residence a few blocks away from the residence where they were staying the night with friends. Justin said that he had driven the red Ford truck, which belonged to him, and that his brother had driven a white Chevrolet truck. Justin said that the shotgun belonged to their father and that he (Justin) had taken it from his father's residence and placed it under the front seat of the red truck. Justin further claimed that he had worn a green Carhartt jacket earlier that night and that he had placed in the jacket's pockets his mother's .25–caliber handgun and some shotgun shells from his father's residence. According to Justin, although his brother had his own jacket, for some unknown reason, Geeslin was wearing his (Justin's) jacket at the time of his arrest that night. Brandi Wallace, Geeslin's girlfriend, testified that she did not see Geeslin in possession of any firearms or ammunition, and she denied that Geeslin had worn a green Carhartt jacket that night.

III. Discussion

A. Sufficiency of the Evidence

To revoke probation or a suspended sentence, the burden is on the State to prove the violation of a condition of the probation or suspension by a preponderance of the evidence. Johnson v. State, 2014 Ark. App. 606, 447 S.W.3d 143. On appellate review, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Id. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for revocation of probation or suspension. Id. Thus, the burden on the State is not as great in a revocation hearing. Id. Furthermore, because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the trial court's superior position. Id.

Geeslin states that he "understands the unlikely success of reversing a revocation on a factual argument based on the standard of review." Geeslin states that, at most, he was in the vicinity of two firearms but was not in actual possession or control of them. He maintains that he was unaware of the presence of the firearms and that his proximity to them was accidental.

Even if Geeslin did not possess or control the shotgun, there was ample evidence that Geeslin was nevertheless in possession of the handgun and ammunition for both the handgun and the shotgun. According to Forney, he found the handgun and ammunition in the front and back pockets of Geeslin's pants. The trial court was not required to believe Justin's account, especially given the testimony from Forney that he did not recall Geeslin's having worn a green Carhartt jacket and from Wallace, who flatly denied that Geeslin had worn that jacket. To the extent that there is a challenge to the sufficiency of the evidence, we cannot say that the trial court's decision to revoke Geeslin's SIS was clearly against the preponderance of the evidence.

B. Notice of Conditions of Suspension

Arkansas Code Annotated section 5–4–303(g) (Supp. 2009) (currently codified at 5–4–303(e)(2) (Supp. 2015)) provides that, if the trial court suspends imposition of sentence, the court shall give the defendant a written statement explicitly setting forth the conditions under which he or she is being released. As a rule, criminal statutes are strictly construed with any doubts resolved in favor of the accused. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998).

Geeslin argues that he did not receive the required statutory notice of the conditions of his SIS in 2010. Geeslin maintains that, although he signed a document entitled "Conditions of Suspension," there was no indication that he had been provided with a copy of the document—his signature proves only that the document had been shown to him.¹ He contends that he also did not receive the conditions when the trial court twice amended the sentencing order. In fact, he contends that the second amended order "admits" that he did not receive notice because it indicates that the conditions were not attached to the order. He asserts that those amended orders superseded the original order and that it was incumbent on the State to serve him with notice of the amended orders and with the terms and conditions applicable to those orders.

The State must prove by a preponderance of the evidence that Geeslin received the statutorily required written notice of the conditions of his suspended sentence. See, e.g., Lambert v. State, 2013 Ark. App. 64, 426 S.W.3d 478. In Berry v. State, 2010 Ark. App. 217, 2010 WL 724318, this court held that the appellant's signature on the documents listing the conditions was sufficient to support the trial court's determination that the appellant knew, understood, and...