Lawrence v. State
| Decision Date | 06 May 2020 |
| Docket Number | No. CR-19-976,CR-19-976 |
| Citation | 2020 Ark. App. 285,600 S.W.3d 670 |
| Parties | Brent LAWRENCE, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
Beth Wright, for appellant.
Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.
Brent Lawrence appeals the Logan County Circuit Court's order revoking his suspended imposition of sentence (SIS) and sentencing him to seventy-two months’ confinement in the Arkansas Department of Correction (ADC). He argues that the circuit court erred in (1) revoking his SIS because the State failed to present sufficient evidence that he willfully violated the terms and conditions of his SIS regarding his payment of court-ordered fees, costs, and restitution; (2) finding he violated the terms of his SIS by not submitting himself to community service; and (3) allowing the State to admit the terms and conditions of his SIS because the conditions listed were terms of probation prohibited by state law and violated his right to due process and Arkansas law because they were not explicit. We find merit in Lawrence's first argument on appeal, and we reverse and dismiss.
On April 17, 2017, Lawrence pleaded guilty in the Logan Count Circuit Court to one count of residential burglary in case number 42BCR-2016-112. The circuit court sentenced him to seventy-two months in the ADC with an additional seventy-two-month SIS that, following his release from prison, was conditioned on his abiding by written rules of conduct, paying court costs and administrative fees, and making restitution to the victims. He was released on November 21, 2017, and was to begin his payments sixty days after his release.
On January 7, 2019, the State filed a petition to revoke Lawrence's SIS, alleging that he had failed to comply with its terms and conditions. The petition was subsequently amended on March 15 and again on June 27, citing as violations:
The allegation common to all three petitions was that Lawrence had inexcusably failed to pay the fines, costs, fees, or restitution associated with his SIS.
A hearing on the revocation petition was held on October 4. The State called Elaine Robertson, the Logan County circuit clerk, who authenticated the sentencing order related to the residential-burglary conviction and conditions of SIS that included the payment of fines, costs, administrative fees, and restitution, which were acknowledged by Lawrence when he entered his guilty plea.
The sentencing order was admitted into evidence without objection. The State attempted to admit the conditions of SIS, but Lawrence objected, stating they were improper under state law because they required him to submit to supervision, were in violation of his right to due process, and were in violation of Arkansas law. Lawrence argued that the State failed to provide clear, concise, and under the law, conditions that he could understand. The State responded that Lawrence had been represented by counsel and that he had signed a document stating that he would abide by those conditions. Lawrence's objection was overruled.
Leanna Jones, a deputy circuit clerk in charge of maintaining the records of payments in felony cases, testified that the records indicated Lawrence had made no payments toward the fees and restitution associated with his SIS since his release from prison on November 21, 2017. A third witness was called—Shelby Kiersey, one of Lawrence's burglary victims (married to Lawrence's great uncle)—who, over Lawrence's objection, testified that she had not received any restitution following Lawrence's release.
At the close of the State's case, defense counsel moved to dismiss the petition, arguing that the conditions of the SIS signed by Lawrence were illegal and unconstitutional in that he did not know which of the enumerated conditions applied to him. The State responded that Lawrence was represented be a licensed attorney who was capable of explaining those conditions and that the testimony before the circuit court constituted prima facia evidence that Lawrence had violated conditions of his SIS that have nothing to do with supervision. The motion was denied, and rather than specifically challenging the sufficiency of the evidence, Lawrence presented additional evidence.
Lawrence's medical provider, nurse practitioner Billy Noel, testified that Lawrence has uncontrolled type 1 diabetes
, hepatitis C, MRSA, congestive heart failure, and COPD and that his appearance was skeletal due to the wasting effects of the uncontrolled diabetes. Noel testified that he had not seen Lawrence on drugs or incapacitated in any way at his clinic visits. Further, Noel stated that he did not believe Lawrence would be capable of getting and maintaining a job because of his health problems—stating that he is in very poor health and limited in his life expectancy. He also testified that he had needed to provide free treatment to Lawrence on several occasions.
Lawrence testified about his physical infirmities, living conditions, inability to work, attempts to borrow money, being destitute, and lack of willfulness in his inability to pay the court-ordered fines, costs, fees, and restitution. He asserted that he wanted to pay his obligations but that he did not even have twenty dollars he could have paid to bond out.
The State asked Lawrence if he had ever tried to ask for community service, and he responded that community service did not qualify for restitution. The State then asked if he could have done community service, and he responded that he could do "very little, limited" but that he could have tried.
At the conclusion of the hearing, the circuit court noted that Lawrence had not only paid nothing toward his fees and restitution, he had made no attempt to do so. The circuit court found that Lawrence's failure to pay these costs was an inexcusable violation of conditions 15, 16, and 17 of the written conditions of SIS provided to him, stating:
The circuit court found Lawrence guilty based on his violation of conditions 15, 16, and 17, and sentenced him to seventy-two months’ confinement in the ADC. The sentencing order was filed of record on October 4, and a timely notice of appeal was filed of record on October 9.
We recently reiterated our standard of review in revocation cases:
A circuit court may revoke a defendant's probation if it finds by a preponderance of the evidence that the defendant has violated a condition of the probation. The State bears the burden of proof, but it need only prove that the defendant committed one violation of the conditions. Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation of probation. On appeal, we will defer to the circuit court's superior position in evaluating the credibility and weight of testimony presented at the hearing. A circuit court's finding in revocation proceedings will not be reversed on appeal unless it is clearly against the preponderance of the evidence.
Ruffin v. State , 2020 Ark. App. 179, at 3, 597 S.W.3d 151 (internal citations omitted).
A challenge to the sufficiency of the evidence at a hearing seeking to revoke a defendant's SIS may be raised for the first time in an appeal of a revocation in the absence of a motion to dismiss. See, e.g. , Barbee v. State , 346 Ark. 185, 188, 56 S.W.3d 370, 372 (2001).
Specifically, with respect to revocations based on failure to pay, we recently held:
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Dillard v. State
...we will affirm a trial court's revocation of a suspended sentence unless the decision is clearly against the preponderance of the evidence. Id. Furthermore, because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony......