Javanna Sims v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

JAVANNA SIMS,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR03-461

JANUARY 28, 2004

APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT,

NO. CR01-14,

HON. JOHN S. PATTERSON, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Javanna Sims brings this appeal contending that the trial court erred in finding that she had inexcusably violated the terms of her probation and in revoking her probation. In addition, she also contends that the trial court lacked subject-matter jurisdiction to modify or revoke her probation. We affirm on both points.

On May 18, 2001, Sims entered a plea of guilty to the offense of theft of property. She was placed on supervised probation for a period of five years and, among other things, was ordered to pay a fine of $1,000, lead a law-abiding life, and refrain from the use of controlled substances. On March 15, 2002, the State filed a petition seeking to revoke her probation, alleging that Sims had violated the terms of her probation by failing to report to her probation officer, failing to pay certain fines, failing to pay restitution and court costs, and for using marijuana on four different occasions. At a July 26, 2002, hearing on the petition to revoke, the court found that Sims had violated her probation by failing to pay her fines, restitution and court costs, and for testing positive for controlled substances. However, instead of revoking Sims's probation, the court added an additional condition to her probation, which was that Sims complete a drug-abuse treatment program at the Gyst House in Little Rock. The court ordered that Sims's enrollment in the program last a minimum of six months. On

October 24, 2002, the State filed another petition seeking to revoke Sims's probation alleging that Sims had failed to comply with the terms of her probation by failing to complete the drug-abuse treatment program at the Gyst House as previously ordered.

At a January 10, 2003, hearing on the petition to revoke, Wendy Phillips testified that she is Sims's probation officer and that, as part of the terms of her probation, Sims had been ordered to complete a drug-abuse treatment program at the Gyst House and that she had failed to do so. She testified that the treatment program was to last between six and eighteen months.

Ruben L. Johnson testified that he is employed as a court liaison for the Gyst House. He also testified that Sims was to remain in the Gyst House program for six to eighteen months and that she enrolled August 1, 2002, and left the program on October 12, 2002. He stated that on one occasion Sims returned to the Gyst House from work under the influence of alcohol. When Sims was confronted about the situation, she left the program. He stated, "It was not the fact that she came back under the influence of alcohol that she was discharged from the Gyst House. We still left the door open to work with Ms. Sims, but she chose to leave."

Sims testified and admitted to using alcohol while she was a resident at the Gyst House. She also stated that she left the Gyst House on October 12 because another resident had made unwanted sexual advances toward her, but that she had not told anyone about the incidents. She stated that she tried to complete the program but that she was being harassed. She testified that she kept all of her appointments with her probation officer after leaving the program. In addition, she stated that she had tried to get into another rehabilitation program in Fort Smith, but there were no openings until January 8, which was two days before the hearing on the second petition to revoke. Sims stated that during the last part of October, and all of November and December, she was not able to get any help for her substance-abuse problem.

The court found that Sims had violated the court's order of July 26, which was that Sims complete at least a six-month drug-abuse treatment program at the Gyst House, and revoked Sims's probation. Sims was sentenced to the Arkansas Department of Correction for twenty-four months as a judicial transfer to the Regional Correctional facility. The court also suspended the imposition of sentence for an additional thirty-six months, conditioned on Sims living a law-abiding life and paying financial obligations that had remained unpaid under the original order of probation. This appeal followed, in which Sims contends that the court erred in finding that she had inexcusably violated the terms of her probation. For her second point on appeal, she asks this court to reverse the judgment of the trial court sentencing her to the Department of Correction, stating that the court lacked subject-matter jurisdiction to revoke her probation. We affirm on both points.

Before reaching the merits of Sims's case, we first address her argument that the trial court lacked subject-matter jurisdiction to amend or modify her probation. Although Sims did not move to dismiss the revocation petition or specifically argue that the trial court lacked subject-matter jurisdiction to revoke her probation, subject-matter jurisdiction may be raised for the first time on appeal. Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003). This court will treat problems of void or illegal sentences similar to problems of subject-matter jurisdiction and review them even if not raised on appeal and not objected to in the trial court. Id.

Sims argues that her plea of guilty, coupled with the $1,000 fine and the terms of her probation, amounted to a conviction. Further, she states that the fine imposed on her is a sentence placed in execution; therefore, the trial court lost jurisdiction to amend or modify her probation. She argues that the sentence by the court when it revoked her probation was illegal as the court was without jurisdiction to modify a sentence already placed in execution. She argues that Ark. Code Ann. § 5-4-301(d) states that when a trial court suspends the imposition of sentence or places a defendant on probation, it shall enter a judgment of conviction only if it sentences the defendant to pay a fine or sentences a defendant to a term of imprisonment. In summary, she argues that since the circuit court lacked jurisdiction to modify the conditions of her probation in 2002, it lacked jurisdiction to revoke her probation in 2003.

For her argument, Sims relies upon McGhee v. State, 334 Ark. 542, 975 S.W.2d 834 (1998), in which the court reaffirmed that circuit courts could not modify either probated or suspended sentences that were accompanied by fines because the sentences were placed in execution. She also argues that Ark. Code Ann. § 5-4-303 sets forth conditions that can be imposed by a trial court when a person is placed on probation and a fine is not included in those conditions.

Sims's argument is based upon law that has changed. Prior to Act 1569 of 1999, now codified at § 5-4-301(2)(B) (Supp. 2003), a trial court lost subject-matter jurisdiction to modify or amend an original sentence once it was put into execution. Gates v. State, supra. A sentence is placed into execution when the trial court issues a judgment of conviction or a commitment order. Gates v. State, supra.

Sims's argument has been addressed in Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002), in which the supreme court held that Ark. Code Ann. § 5-4-301(2)(B) overruled McGhee v. State, supra. In Moseley, the court wrote:

Prior to Act 1569, our caselaw stood for the proposition that a trial court lost jurisdiction to modify or amend an original sentence once that sentence was put into execution. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001) (citing Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989) (citing Toney v. State, 294 Ark. 473, 743 S.W.2d 816 (1988); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987))). In 1999, however, the General Assembly enacted Act 1569 which amended Arkansas Code Annotated §§§§5-4-301, 5-4-303, 5-4-304, and 5-4-306. See Act 1569 of 1999. Act 1569 went into effect on April 15, 1999, and this court subsequently held that it was to only be applied prospectively. See Bagwell v. State, supra. In order for Act 1569 to apply to the facts of Moseley's case, it had to have been in effect at the time the original crime was committed. See id. Here, Moseley's offenses occurred between May 1, 1999, and June 22, 1999, which was after the effective date of Act 1569. Accordingly, Act 1569 applies to the facts of his case.

The effective date of Act 1569 was April 15, 1999. See Gates v. State, supra. In the case at bar, Sims committed her offense in January 2001. At this time, the sentencing statutes provided for the modification of a suspended or probated sentence, despite the fact that a judgment of conviction has been entered as a result of a fine being imposed. Therefore, the circuit court had subject-matter jurisdiction to change the conditions of her probated sentence and jurisdiction to revoke it.

We turn now to Sims's argument that the court erred in finding that she had not inexcusably violated the terms and conditions of her probation. In order to revoke Sims's probation, the State bears the burden of proving by a preponderance of the evidence thatSims violated the terms and conditions of her probation. Jones v. State, __ Ark. App. __, 119 S.W.3d 48 (2003). On appellate review, the trial court's findings will not be reversed unless they are clearly against the preponderance of the evidence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and weight to be accorded to the testimony, the appellate court defers to the trial judge's superior position. Id.

Sims argues that the court erred in revoking her probation because sufficient evidence was not presented that she inexcusably failed to comply with the orders of the court. She argues that she left the drug-abuse treatment program at the Gyst House because another person at the Gyst House had made unwelcome sexual advances toward her; therefore, she contends that she did not inexcusably violate the terms of her probation. She argues that she was placed in a situation that was no fault of her own that required her to make a choice as to whether to stay in the program where her safety and well-being were at risk and in an environment that was not conducive to successful treatment of her controlled substance abuse or leave the program. Further, she asserts that after she left the program she attempted to enroll in another substance-abuse treatment program but no openings existed in the program until shortly before her revocation hearing. She asserts that the State offered no evidence to rebut her excuse as to why she left the Gyst House and that the trial court did not make specific findings as to the credibility of her testimony. She asserts that because she has a reasonable excuse for not completing her treatment program at the Gyst House the court should not find by a preponderance of the evidence that she inexcusably failed to comply with the trial court's order and revoke her probation.

Sims relies upon Cogburn v. State, 264 Ark. 173, 569 S.W.2d 658 (1978), in urging this court to reverse her revocation. In Cogburn, the supreme court reversed a trial court's finding that the appellant had inexcusably failed to comply with the terms of his probation. Appellant Cogburn had been ordered to complete 80 hours of volunteer work at the Arkansas Children's Colony. However, Cogburn was unable to work the full 80 hours because, in addition to his work imposed by the terms and conditions of his probation, he was also working 50 to 60 hours a week to support his family. Cogburn's wife was ill and he was forced to care for her during her illness, and he had also been ill and had a doctor's note corroborating his testimony. Because of his illness and his wife's illness, he had failed to complete the full 80 hours, but had worked a significant number of hours toward the 80 required hours. The supreme court found that his failure to work the full 80 hours each month could not fairly be said to have been inexcusable.

In the case at bar, Sims admitted that she had failed to complete the program that the court had ordered her to complete, that she left the program voluntarily, and that she had not enrolled in a new program until a few days preceding the probation revocation hearing. Although she claims to have left the program because another person that was enrolled in the program was making unwelcome sexual advances toward her, she did not report the incidents to the person in charge of the program or her probation officer. Based upon the testimony presented at the hearing, we cannot say that the court's finding that she had inexcusably failed to complete the terms of her probation was clearly against the preponderance of the evidence.

Affirmed.

Griffen and Crabtree, JJ., agree.