Collins v. State, CA CR 08-1513 (Ark. App. 6/17/2009)

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Anthony COLLINS Appellant, v. STATE of Arkansas Appellee.

CA CR 08-1513

Court of Appeals of Arkansas, Division IV.

Opinion Delivered June 17, 2009

Appeal from the Jefferson County Circuit Court, [No. CR-2006-1047-1, CR-2006-0134-1, CR-2005-0900-1], Honorable Berlin C. Jones, Judge.

Affirmed.

LARRY D. VAUGHT, Chief Judge

Anthony Collins appeals from the judgment and commitment order entered by the Jefferson County Circuit Court revoking his drug-court probation in three separate cases. On appeal, Collins contends that there was insufficient evidence supporting the trial court's finding that he inexcusably violated the terms and conditions of his probation. He also contends that the sentence imposed by the trial court was illegal. We affirm.

In September 2005, Collins was charged with one count of theft of property and four counts of forgery in case number CR 2005-900. Thereafter, in February 2006, Collins was charged with theft of property and six counts of forgery in case number CR 2006-134. On August 30, 2006, a judgment and commitment order was entered reflecting that Collins pled guilty to all crimes comprising case numbers CR 2005-900 and CR 2006-134. He was sentenced to a total of sixty months' probation and ordered to pay a fine, court costs, restitution, and fees. Collins was also ordered to participate in drug treatment and perform community service.

In November 2006, Collins was charged with one count of theft of property and four counts of fraudulent use of a credit card in case number CR 2006-1047. Thereafter, in March 2007, the State filed a petition to revoke Collins's probation in case numbers CR 2005-900 and CR 2006-134. Collins pled guilty to the allegations that he violated his probation in CR 2005-900 and CR 2006-134 and to the charges alleged in case number CR 2006-1047, and on April 18, 2007, a judgment and commitment order was filed, sentencing Collins to a total of forty-eight months' drug-court probation. He was also ordered to pay a fine, court costs, restitution, and fees, and participate in drug treatment, perform community service, and tour the Arkansas Department of Correction.

On April 25, 2007, the State filed a petition to revoke his drug-court probation in CR 2005-900, CR 2006-134, and CR 2006-1047. The petition alleged that Collins failed to attend drug testing on April 20, appear for drug-court review on April 25, report for group counseling and classes, participate in the drug program, complete his community-service hours, tour the Arkansas Department of Correction, and make payments toward his financial obligations.

At the revocation hearing, Collins's probation officer Angela Jones testified that when Collins was first placed on drug-court probation, he was advised of and signed the documents outlining the terms and conditions of probation. According to Jones, after completing the intake process for drug court on April 17, 2007, Collins did not report as directed. He did not attend drug testing, classes, or counseling. She said that he did not complete his community service, did not tour the Arkansas Department of Correction, and did not pay any of his monetary obligations.

On cross examination, Jones stated that after Collins completed the drug-court-intake process on April 17, 2007, the next contact he made was a phone call to the probation office on April 30, 2007, stating that he had "messed up" by getting into an argument with his girlfriend and "went out and used meth." Collins reported that he was staying with a friend in Morrilton and wanted to turn himself in. The only other contact Collins made was on May 21, 2007, when he left a voice-mail message (from an anonymous number), stating that he was still "in Morrilton and [felt] really bad that he [had not] turned himself in. [Collins] stated . . . that he would be turning himself in on Monday." Collins never turned himself in.

Jefferson County Drug Court Counselor Latonya Taggart also testified. She stated that in April 2007, Collins reported that he was living in Morrilton with his girlfriend. She did not recall Collins reporting housing problems to her; however, she did recall that Collins reported that he had used "meth."

Collins also testified at the revocation hearing. He said that at the time he began the drug-court program, he planned to live with his uncle. However, because his uncle was still engaged in drug activity, in which Collins refused to participate, his uncle asked Collins to live elsewhere. He tried to reconcile with his wife; however, after an argument with her, she asked him to leave. He stayed in his girlfriend's car for a couple of nights and then with a friend in Monticello. Collins admitted that he began using drugs again while staying with his friend. He stated that the drugs "played tricks on his mind," causing him not to take the right actions, like turning himself into authorities and finding transportation back to drug court.

Collins further testified that for the past five months he had been living in a detention center and had turned his life around. He asked the court for a second chance to participate in the drug-court program. Collins's wife testified that she and Collins had recently reconciled. She stated that she would support him if he was permitted to participate in the drug-court program. She testified that since December 2007 (when he was arrested and placed into custody), her husband had changed.

The trial court revoked Collins's probation in CR 2005-900, CR 2006-134, and CR 2006-1047. A judgment and commitment order was entered on April 4, 2008, sentencing Collins to a total of fifteen years' imprisonment. Collins has timely appealed from this order. He first argues that there was insufficient evidence to support the trial court's finding that he inexcusably violated the terms and conditions of his drug-court probation.

In order to revoke probation, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). Once the State introduces evidence of non-compliance in a revocation hearing, the defendant then bears the burden of going forward with some reasonable excuse for non-compliance. Anglin v. State, 98 Ark. App. 34 249 S.W.3d 836 (2007). On appeal, we do not...