Ingram v. State

• Decision Date: 04 November 2009
• Docket Number: No. CA CR 09–102.,CA CR 09–102.
• Citation: Ingram v. State, 2009 Ark. App. 729, 363 S.W.3d 6 (Ark. App. 2009)
• Parties: Michelle Lee INGRAM, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2009 Ark. App. 729

363 S.W.3d 6

Michelle Lee INGRAM, Appellant,

v.STATE of Arkansas, Appellee.

No. CA CR 09–102.

Court of Appeals of Arkansas.

Nov. 4, 2009.

Erwin L. Davis, Fayetteville, for appellant.

Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

M. MICHAEL KINARD, Judge.

Michelle [Ark. App. 1] Lee Ingram appeals from the revocation of her probation on the underlying charge of forgery in the second degree. Upon revocation, appellant was sentenced to five years' imprisonment. For reversal, appellant argues that her due-process rights were violated at the revocation hearing, that the court failed to place her under oath at the hearing, and that the court erred in sentencing her because there was no evidence against her. We affirm.

Appellant pleaded guilty to forgery in the second degree,¹ and she was sentenced to three years' probation in an order filed January 31, 2006. She was ordered to pay $150 in court costs, $500 in restitution to Benton County, and $2,677.65 in victim restitution at a rate of $55 per month, which included a $5 monthly collection fee. Conditions of appellant's probation included that she not use any controlled substance, that she submit to [Ark. App. 2] random drug tests, that she report as directed to her supervising officer, that she maintain gainful employment at all times, and that she pay restitution in regular monthly payments.

Appellant has had a series of problems complying with the conditions of her probation. The State first filed a revocation petition on February 5, 2007, alleging that appellant had tested positive for methamphetamine on several occasions; marijuana was found at her house during a home visit; she refused to submit to drug testing on two occasions; failed to report as directed to her probation officer; failed to maintain stable employment; failed to complete the substance abuse class recommended by her probation officer; failed to pay fines, fees, and costs as ordered by the court; and failed to notify her supervising officer of a residence change. An affidavit by appellant's probation officer regarding the alleged violations was filed the same day. An order filed February 7, 2007, indicates that appellant admitted the violations. Appellant was ordered to report and take drug tests weekly. A hearing was set for March 12, 2007.

The record reflects that appellant did not appear on March 12, and a summons was issued for her to appear on March 26, 2007. Appellant appeared on March 26 and again on May 14, 2007. On August 13, 2007, the court dismissed the State's petition to revoke, noting that appellant had “reported clean since February.”

The State filed another petition for revocation on June 10, 2008, alleging that appellant had failed to report to her probation officer or pay probation fees as ordered. An affidavit from appellant's probation officer was also filed. A hearing was set for September [Ark. App. 3] 2, 2008, and appellant “called in—very sick.” The hearing was reset for September 8, and appellant appeared on that date with her attorney and admitted the violations. Appellant explained her violations by stating that she had complications from pregnancy and caregiving responsibilities for a mother-in-law with advanced Alzheimer's disease and five children, making it impossible for her to report during business hours. The court declined to revoke her probation at that time, and another hearing was set for November 10, 2008. The State filed an amended petition for revocation on September 17, 2008, alleging that appellant had failed to report to her probation officer as ordered; failed to pay fines, fees, costs, and probation fees as ordered; failed to maintain employment; and had misled the court during the September 8, 2008 hearing by stating that she was currently employed at On the Border restaurant. Attached were the following three exhibits: (1) an affidavit of appellant's probation officer, which stated that appellant had only reported twice since her last revocation hearing and that appellant was currently $525 in arrears and had not made a payment since October 2006; (2) a payment ledger; and (3) a letter from a corporate investigator at Brinker International stating that appellant had not worked for On the Border since she was investigated for “unusual activity” (suspected theft) in late July 2008 and terminated after she admitted to various policy violations.

The State filed a second amended petition for revocation of appellant's probation on October 9, 2008. In this petition, the State alleged that appellant had failed to report as directed to her probation officer (referencing the affidavit filed June 10, 2008); that she had [Ark. App. 4] failed to pay probation fees as ordered by the court (referencing the affidavit filed June 10, 2008); that she had failed to maintain stable employment (referencing Exhibit C of the State's amended petition filed September 17, 2008); that she “misled” the court on September 8, 2008, when she stated that she was currently employed at On the Border restaurant in Rogers working 50+ hours per week, when in fact she had not been employed there since July 25, 2008 (referencing Exhibit C of the State's amended petition filed September 17, 2008); and that on September 23, 2008, she attempted to falsify/adulterate a drug test.

The revocation hearing was held on October 27, 2008. At the hearing, the court began by reading the State's petition and asking whether appellant admitted or denied the alleged violations. As to the failure-to-report violation, appellant admitted that she had missed three meetings but asserted that she had telephoned several times during that time period. As to the failure to pay, appellant admitted that she had failed to pay probation fees and attempted to explain it by saying that her probation officer told her she did not have to pay until the end of probation. As to the failure-to-maintain-employment allegation, appellant denied that she intentionally misled the court during the previous hearing. The allegation of attempting to falsify a drug test was discussed, and then a recess was taken so that the judge could review the transcript of the September hearing. Following the recess, the judge stated that appellant had lied to him in the September hearing when she told him that she was working at On the Border when in fact she had [Ark. App. 5] not worked there in months. The court asked if there was anything appellant wished to say before he pronounced sentence, and appellant was then given the opportunity to testify. Following her testimony, the State introduced into evidence the written account of the incident in which the vial of yellow liquid was found on appellant at the jail. The court revoked appellant's probation and sentenced her to five years in...