McGahey v. State

683 S.W.3d 211

2024 Ark. App. 30

Rocky MCGAHEY, Appellant

v.STATE of Arkansas, Appellee

No. CR-23-254

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered January 17, 2024

APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO. 42PCR-18-102], HONORABLE JERRY RAMEY, JUDGE

Beth Wright, Public Defender, for appellant.

Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.

KENNETH S. HIXSON, Judge

₁Appellant Rocky McGahey appeals after the Logan County Circuit Court revoked his probation on one count of first-degree terroristic threatening and sentenced him to serve sixty months’ imprisonment with a judicial transfer to the Arkansas Division of Community Correction Center. Appellant argues on appeal that the circuit court erred in revoking his probation because there was insufficient evidence that he inexcusably violated a condition of his probation. We affirm.

I. Relevant Facts

On January 25, 2019, appellant entered a negotiated plea of guilty in relevant part to terroristic threatening in the first degree, a Class D felony, in violation of Arkansas Code Annotated section 5-13-301 (Supp. 2017). Appellant was placed on twenty-four months’₂probation. According to the terms and conditions of his probation, appellant was ordered to pay a monthly $35 supervision fee, other fees totaling $285, $150 in court costs, and a $1,000 fine. He was to pay these fines, fees, and costs in monthly installments of "$50.00 + $10.00" beginning on March 1, 2019.

Appellant's probation was subsequently revoked on November 8, 2019, and appellant was sentenced to serve one hundred days in jail and placed on probation for thirty-six months. The sentencing order stated that all fines and costs that were previously ordered were still owed. It additionally held that appellant owed an additional $150 in court costs, $10 in monthly administration fees, a $50 warrant fee, and a $40 booking fee. The circuit court ordered that appellant start making $50 monthly installment payments within sixty days of his release. Those orders were included in the terms and conditions of appellant’s probation in addition to ordering appellant to "report as directed to a supervising officer and permit him or her to visit you in your residence, place of employment, or other property."

On July 13, 2022, the State filed a petition to revoke appellant’s probation, alleging that appellant violated the following terms and conditions:

# 6 - Reporting:

On 4/25/2022, MaGahey failed to report for office visit as instructed.

On 5/11/2022, MaGahey failed to report for office visit as instructed.

On 5/13/2022, MaGahey failed to report for office visit as instructed.

On 5/20/2022. MaGahey failed to report for office visit as instructed.

# 8 - Change of Address/Employment or Education:

On 5/10/2021, MaGahey failed to obtain permission from supervising officer to move from approved residence. Offender’s whereabouts is unknown.

₃As of 5/25/2022, MaGahey has failed to provide proof of Employment or Enrollment in an Educational Program.

# 10: Treatment:

As of 5/25/2022, MaGahey has failed to complete an assessment with SAPL.

# 14 - Financial Obligations:

As of 5/25/2022, MaGahey is $760 delinquent in supervision fees.

As of 5/25/2022, McGahey HAS NOT made a payment on his Logan County felony fines since March of 2021. $50. Leaving his past due balance at $1560.

Appellant was arrested on the violations on July 13, 2022, and a revocation hearing was held on January 13, 2023.

At the revocation hearing, Officer Jackie Young testified that he has been appellant’s probation officer since April 2022. He explained that appellant was not current on his fees when appellant was assigned to his caseload and that appellant was still behind on his fees. As of that morning, appellant was delinquent $499. He also stated that appellant failed to report on several occasions. Officer Young explained that appellant had missed an office visit on April 26, 2022. He admitted that another officer had scheduled the appointment but explained that appellant was to report to him. After appellant failed to return two subsequent phone calls, Officer Young left a note at appellant’s house directing him to report on May 11, 2022. However, appellant failed to report. Appellant thereafter sent Officer Young a text message on May 12, 2022, asking when he needed to report. Officer Young instructed him to report the next day, but appellant again failed to report on May 13, 2022. Appellant next called Officer Young on May 19, 2022, and Officer Young directed appellant ₄to report on May 20, 2022. However, Officer Young stated that appellant did not report until May 31, 2022.

Officer Young testified that in addition to being delinquent on his financial obligations and failing to report, appellant failed to complete "an assessment SAPL" that he was ordered to complete. Appellant also had failed to obtain permission from his previous probation officer before moving. Appellant further had not provided any proof of employment or education.

On cross-examination, Officer Young admitted that he did not have personal knowledge as to whether appellant received the directive to report on April 25, 2022, and that he did not know whether appellant had received the text messages. However, Officer Young explained that appellant had texted him from the same number that he sent the messages to. Officer Young also admitted that appellant had reported on several other occasions. Appellant’s last office visit was on September 19, 2022; Officer Young stated that at that time, he stopped issuing any further directives to report after that date.

Angela Moore, a clerk at the Logan County Sheriff’s Office, testified that appellant owed $1,665 and had only made some payments totaling $410. On cross-examination, Ms. Moore admitted that she did not know whether appellant had the ability to pay his financial obligations. She also admitted that she did not know whether appellant had any issues with being a veteran or any kind of disability that would interfere with his ability to pay.

After the State rested, appellant moved to dismiss the petition, which was denied.

₅Appellant testified that his phone had not been working for two months because he could not afford his bill and that the electricity at his home had also been shut off. He further testified he had served four years in the Marine Corps, suffers from PTSD, and has a degenerative disc in his lumbar spine. Appellant claimed that he makes only $300 a month. He also stated that because his driver’s license had been suspended, it was difficult for him to go places. He admitted that although his driver’s license had been suspended, he managed to visit the probation office on some occasions. Appellant explained that he would risk driving, and he felt he was "between a rock and a hard place." He stated that he "did the best [he] could." Appellant admitted that he knew he needed to pay his financial obligations but reiterated that he makes only $300 a month. Appellant claimed that he had texted Officer Young about his probation fees being waived because he has a disability and further claimed that Officer Young subsequently told him that he "was at a zero on [his] probation fees." Appellant testified that he was going to school for welding and that he was currently employed at Butterball. His neighbor had helped him get his job and had been giving him rides to work. His mom also would give him rides to court. Appellant acknowledged on cross-examination that he could have asked his neighbor for help earlier but stated that he was not "sober enough" like he was now. Appellant claimed that he could start making payments on his financial obligations and claimed that his father was willing to pay off those obligations.

Shelly McGahey, appellant’s wife, testified that she and appellant had been married for seven years. She thought appellant was doing the best she had ever seen. She confirmed ₆that appellant was working, enrolled in college, and close to getting his driver’s license back. She further testified that they were co-parenting even though they were not living together. Ms. McGahey admitted that she had driven appellant to see his probation officer in the past. However, she explained that she was unable to take him whenever he needed to go. She explained that although appellant could ask for rides, he often had problems with text messaging on his phone. She said that appellant would also run out of minutes to use on his phone at various times.

On cross-examination, Ms. McGahey admitted that appellant would either ask for rides or drive himself. She further admitted that appellant had been driving "a lot" on his suspended license but has stopped driving in the last year after he was pulled over for driving on a suspended license. She stated that she had not had constant contact with appellant in the past two years and that she did not know about his substance abuse. She further testified that appellant had gone with her to Celebrate Recovery every time in the past six months but had not been going before that time.

Defense counsel recalled Officer Young. Officer Young testified that he was aware that appellant’s driver’s license had been suspended and that appellant was having difficulty getting back and forth.

After the defense rested, the State then recalled Officer Young as a rebuttal witness. Officer Young testified that he did not tell appellant that his supervision fees were zeroed out as appellant claimed. He also stated that appellant had not stayed in regular contact with ₇him. He explained that appellant would text him approximately once a month and that when appellant contacted him, it was through text.

On cross-examination, Officer Young stated he had seen appellant six times. When asked whether that was reasonable for someone who does not have a driver’s license, Officer Young responded that he had "people find rides all the time."

At the...