Scroggins v. State

• Decision Date: 25 January 2012
• Docket Number: No. CA CR 11–768.,CA CR 11–768.
• Citation: 2012 Ark. App. 87,389 S.W.3d 40
• Parties: Terry Lee SCROGGINS, Appellant v. STATE Of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2012 Ark. App. 87

389 S.W.3d 40

Terry Lee SCROGGINS, Appellant

v.STATE Of Arkansas, Appellee.

No. CA CR 11–768.

Court of Appeals of Arkansas.

Jan. 25, 2012.

Johnathan D. Dial, Sr., Little Rock, for appellant.

Dustin McDaniel, Atty. Gen., Vada Berger, Little Rock, for appellee.

DAVID M. GLOVER, Judge.

[Ark. App. 1]On May 26, 2009, appellant Terry Lee Scroggins pled guilty to the underlying offense of violating Arkansas's hot-check law and was sentenced to three years' probation, $150 in costs, $305 in fines, and $250 in DNA fees. A restitution judgment in the amount of $347.37 was also entered and ordered payable in installments of $45 per month, plus $5 per month per Act 1262, to begin July 1, 2009. Scroggins was given credit for seventeen days in jail at $40 per day. The conditions of his probation included paying the ordered costs, fines, restitution, and fees. On October 12, 2010, the State filed a petition to revoke Scroggins's probation, alleging his possession of firearms. Following a hearing, the trial court revoked his probation and sentenced him to five years in the Arkansas Department of Correction. Scroggins appeals, contending that 1) the trial court erred in ruling he violated a condition of his probation because the State failed to introduce the terms and [Ark. App. 2]conditions of his probation into evidence at the revocation hearing, and 2) the revocation is procedurally void and clearly against the preponderance of the evidence. We affirm.

For his first point of appeal, Scroggins contends that the State did not meet its burden of proving that he violated the terms and conditions of his probation because it failed to introduce the terms and conditions into evidence. We disagree.

The State argues preliminarily that this argument was not properly preserved because Scroggins did not raise it until after the trial court had made its decision and sentenced him. Scroggins counters that 1) the argument was raised, in effect, during the hearing, and 2) more importantly, because the argument challenges the sufficiency of the evidence, it was not necessary to raise it below.

We have examined the portion of the record that appellant relies on in taking the position that his argument was raised during the hearing. Briefly, Scroggins's objection was that the deputy clerk of the Logan County Sheriff's Department was not a relevant witness to testify about whether Scroggins was ordered to make regular payments, noting, “That's in the Court's file; she has no knowledge, cannot testify to that.” Later in his argument, he contended, “If she [is not] tying records or numbers of the probation revocation to the payments, she's not a relevant witness.” The objection was overruled. It was not until after the trial court had revoked Scroggins's probation and sentenced him to five years in prison that Scroggins contended no conditions of probation were placed into evidence by the State, and that “[t]hey haven't proved what he violated. They just said he hadn't paid.” We have concluded that the objection raised during the hearing, i.e.,[Ark. App. 3]prior to revocation and sentencing, does not encompass the argument Scroggins makes to us in this appeal. Consequently, in order to determine whether the point he raises on appeal is properly before us, we must examine whether his challenge is a procedural one, and thus barred because it was not raised in a timely fashion below, or whether it involves the sufficiency of the evidence supporting his revocation, and thus not barred by his failure to timely raise it below. We have concluded that the issue is more in the nature of a hybrid procedural/sufficiency challenge, which allows us to address it in this appeal, but that there is no basis for reversal of the revocation.

Four cases decided by our court help set the framework for our decision: Nelson v. State, 84 Ark.App. 373, 141 S.W.3d 900 (2004); Whitener v. State, 96 Ark.App. 354, 241 S.W.3d 779 (2006); Costes v. State, 103 Ark.App. 171, 287 S.W.3d 639 (2008); Thomas v. State, 2010 Ark. App. 650, 2010 WL 3783705. In Nelson, our court concluded that Nelson's argument that the State failed to prove that he had been given a copy of the conditions of probation was a procedural one that had to be raised below. In Whitener, the argument differed from that presented in Nelson, in that Whitener argued that the State's failure to introduce the terms and conditions of her probation at the hearing amounted to a failure of the sufficiency of the evidence supporting her revocation. Our court determined that “[Whitener's] argument that the terms and conditions of probation were not introduced into evidence amounts to a procedural objection, and appellant did not raise this issue at the revocation hearing. This court will not consider issues raised for the first time on appeal.” 96 Ark.App. at 357, 241 S.W.3d at 782. It is important to note, however, as Scroggins argues [Ark. App. 4]here, that the conditions violated in Whitener were violations of law and that the opinion emphasizes that fact: “Because our statutory law requires that every probationary sentence contain the condition that the probationer not violate the law, and because everyone is presumed to know the law, it was not necessary for the State to introduce into evidence the probationary condition that appellant not violate the law.” Id.

In Costes, our court explained:

Appellant inserts a comment in her argument that the State failed to enter into evidence the conditions of her suspension upon which to establish any violation. The State correctly notes that this argument is raised for the first time on appeal and is consequently not preserved for review. [Citing Whitener.] Whether there is proof that a probationer received written conditions of probation is a procedural matter, and not one of the sufficiency of the evidence, because the purpose of providing the conditions in writing is to prevent confusion on the probationer's part. [Citing Nelson.] Moreover, appellant concedes in her brief to us that “possession of methamphetamine and possession of drug paraphernalia would, if supported by sufficient evidence, constitute violations of her conditions of suspended sentence.” Furthermore, the record contains the file-marked written conditions to which appellant agreed in order to receive a suspended sentence.

The dissenting judge in this case believes that our court should overrule Whitener, supra, for the same reasons stated in his dissent to Whitener. That case was decided by a five-to-one majority. Appellant has not asked that we revisit that precedent nor does she cite that case in her brief, instead focusing her argument on the sufficiency of the proof, as have we. We adhere to the established case law.

103 Ark.App. at 175, 287 S.W.3d at 642–43. The Costes opinion does not emphasize—as was done in Whitener—that the alleged breaches of conditions involved violations of the law, but it is important to note that they did.

[Ark. App. 5]In Thomas, with no real discussion, our court rejected the argument that not introducing the terms and conditions into evidence constituted a failure of proof on the revocation. Our court merely stated:

Thomas contends that since the State did not introduce the terms and conditions of his suspended sentence, the court had “no basis from which to conclude that [he] had violated a term of suspension.” The State correctly notes that Thomas has waived this argument. An argument that the terms and conditions of probation were not introduced into evidence is a procedural one that is waived if not raised at the revocation hearing. [Citing Whitener.] Because Thomas failed to raise this argument at the trial level, we do not address it.

2010 Ark. App. 650, at 2–3, 2010 WL 3783705.Whitener was cited in support, but, once again, the probation violations in Thomas also involved violations of law.

Here, the State did not pursue at the revocation hearing the firearms violations alleged in the petition to revoke. If violationsof the law had been presented as the violation of Scroggins's probation conditions, Whitener would clearly control. Rather, the only proof presented at the revocation hearing involved Scroggins's failure to pay. The parties have not provided us with legal authority that addresses this precise situation, and our research has not revealed any. Accordingly, this case presents an issue that seems to be of first impression. We briefly considered attempting to certify the issue to our supreme court, but because our line of cases have somewhat portended our decision in this regard, we decided not to certify.

While we acknowledge that the trial court must be aware of the terms and conditions of probation in order to determine whether they have been violated, we do not agree with Scroggins's argument that failure to actually, formally introduce the conditions [Ark. App. 6]into evidence at a revocation hearing amounts to a failure of proof. We have recognized many times that it is not necessary to adhere strictly to the rules of evidence in a revocation hearing, just as it is not necessary to formally move for a directed verdict at the close of the evidence in a revocation hearing. As mentioned previously, the Costes opinion does not seem to rely on the distinctions among condition violations, i.e., whether they involve violations of the law or not. Moreover, the opinion notes the presence of the conditions in the record that was before the trial court at the hearing. Consequently, in addressing the issue before us in the instant case, we have reasoned that in the vast majority of revocation cases, the terms and conditions will be before the trial court as part of the record because that is the whole purpose of the hearing—to determine if the terms and conditions have been violated. In situations in which the terms and conditions are not part of the record, the actual terms and conditions of the probation will undoubtedly...