Charles Chew v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CHARLES CHEW,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-135

SEPTEMBER 29, 2004

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT,

(NO. CR97-49),

HON. DAVID BURNETT, JUDGE

AFFIRMED

Sam Bird, Judge

Charles Chew appeals the revocation of his probation, for which the Mississippi County Circuit Court sentenced him to five years in the Arkansas Department of Correction. As his first point of appeal, he contends that the trial court erred in finding sufficient evidence that he violated his conditions of good behavior. As his second point of appeal, he contends that his sentencing was a violation of due process. We affirm the revocation.

On November 24, 1997, pursuant to his guilty plea for two counts of delivery of a controlled substance, Chew was sentenced to fifty-four months in the Arkansas Department of Correction followed by five years' suspended imposition of sentence. Among the conditions of his suspension were that he live a law-abiding life; be of good behavior; not violate any state, federal, or municipal law; and "not use or possess any. . . marijuana, narcotic or illegal drug or controlled substance, or associate with those who do."

On May 10, 2002, subsequent to Chew's release from prison, the State filed a petition for revocation. The petition alleged that Chew had willfully failed to comply with conditions of his suspended sentence by failing to live a law-abiding life, possessing illegal drugs, associating with individuals known to be committing crimes, and conspiring to

deliver cocaine and marijuana. A hearing on the petition was conducted on November 12, 2003. The trial court found that Chew either jointly possessed a controlled substance or associated with an individual known to be committing a crime, and that Chew had violated the good-conduct condition by associating with this individual and by preparing to smoke marijuana. Officer James Creecy of the Arkansas State Police testified at the revocation hearing that on March 18, 2002, Chew was a passenger in a vehicle that Creecy stopped because it did not have a license-plate light. Creecy testified that he suspected that the driver, Robert Adams, was probably smoking marijuana: there was a strong odor about him, his eyes were bloodshot and red, and his speech was not "coordinated."

Ollie Collins and Danny Foster of the Osceola Police Department assisted Creecy after the stop. Officer Collins testified that he asked Chew to exit the vehicle, and that a couple of plastic baggies flew out of the car in the wind when Chew complied. Collins testified that he and Sergeant Danny Foster smelled an odor of marijuana in the front of the vehicle when they searched it. Collins said that the officers found a baggie containing a yellow substance and a leafy substance, which they assumed to be crack cocaine and marijuana; and that empty baggies were found in Chew's left-front pants pocket when he was searched. Officer Foster testified to essentially these same events, saying that he found the plastic bag in the center armrest of the front seat, tucked into a corner closer to the passenger. These substances were later determined to be cocaine and marijuana.

Chew testified in his own defense. He said that he had "paroled out" of prison two or three days before being stopped, when he was getting a ride with Adams to see a girl in Osceola. Chew stated:

When I got out on parole - the penitentiary, matter of fact, I wanted to smoke weed.... So I left and went over to Robert's. So we was like smoking weed. He grabbed some bags. They weren't like the bags that flew out of the car.... Robert told me, "Just get the bags. We're going to smoke a blunt."

. . . .

I never did smoke a blunt. That's what I'm getting at. I was just thinking about it because I just got out and I'm back flat on parole. I didn't know nothing about no suspended sentence. I know I come out back flat on parole. I ain't never been smoking weed.

Chew denied having any cocaine in the car or having baggies in his pocket. He said that he had seen only the weed that Adams showed him, and that Adams was supposed to be getting them a blunt. Chew denied that the marijuana or cocaine found by the officers was his, and he said that he had no idea that it was under the armrest. He said that he did not know where the baggies that flew from the car came from.

Sufficiency of the Evidence

A revocation of probation requires a finding that the defendant has inexcusably failed to comply with a condition of his suspension or probation. See Ark. Code Ann. § 5-4-309(d) (Repl. 1997). The burden is on the State in a revocation proceeding to prove by a preponderance of the evidence the violation of a condition of probation, but it need prove only that the defendant violated one of those conditions. Richardson v. State, ___ Ark. App. ___ , ___ S.W.3d ___ (March 10, 2004); Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). On appellate review, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). Evidence that is insufficient for a criminal conviction may be sufficient for a revocation. Id.

Chew argues under his first point of appeal that speculation was the basis of the finding that Chew was in constructive possession of the contraband found in the car driven by Adams. Chew points to his testimony that although he intended to smoke a blunt with Adams, he was not smoking in the car. We note, however, that Chew admitted to smoking marijuana with Adams prior to the traffic stop, and that this was in violation of the condition that he not use marijuana or associate with those who do. Therefore, we hold that the trial court's finding that Chew violated a term of his suspended sentence is not clearly against a preponderance of the evidence.

Due Process

Chew contends that his due process rights were violated by "the inaccurate notice of of potential penitentiary time" provided by the State. He argues that because the order of suspension did not specify minimum and maximum sentences, he was not notified of the potential penalty that might result upon revocation. Chew relies upon the maxim of Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980) that a defendant is entitled to know the effect of his sentence. He points to his testimony that he did not know about his suspended sentence.

The order of suspended imposition of sentence recites that Chew was sentenced to "54 months ... in the Department of Correction ... followed by 5 yrs. SIS," and it sets forth conditions of suspension. Printed at the bottom of the order is the following:

Violation of any condition can result in your imprisonment at hard labor in the Department of Correction for not less than ___ years nor more than ___ years, and by a fine not exceeding $___ .

I acknowledge receipt of the above.

Chew's signature appears below the last sentence, as does that of the circuit judge. This order of suspended imposition of sentence was dated November 24, 1997, and was filed on that date. The State notes that on the same date, the judgment and commitment order was filed and Chew signed the plea-sentence recommendation; and that both documents reflect the negotiated sentence of fifty-four months' incarceration followed by "5 yrs. SIS."

In Green v. State, 29 Ark. App. 69, 72, 777 S.W.2d 225, 226 (1989), we addressed a similar situation:

[Appellant] argues that the trial court lacked authority to sentence him to a "new" ten-year sentence at the revocation hearing. We do not agree. The appellant's argument is based on a conflict between two documents: an "order of suspension, suspending imposition of sentence, or of probation," dated July 1, 1981, which provides that "[d]efendant is sentenced to a term of 10 years ... of which 10 years is suspended," and a judgment, filed July 9, 1981, stating that the appellant's guilty plea had been accepted "and that the imposition of sentence is suspended for a period of ten (10) years... ." The judgment clearly indicates that it was imposition of sentence which was suspended. The "order of suspension" dated July 1, 1988, is a multi-purpose form on which the type and duration of sentence is indicated by filled-in blanks, and which includes a statement of the conditions of suspension.

The Green court held that the "order of suspension" was analogous to a statement of conditions, and that between the conflicting indications of the sentence imposed, the judgment was controlling.

There is no statutory requirement that an order of suspension must specify minimum and maximum sentences to notify a defendant of the potential penalty that might result upon revocation. Arkansas Code Annotated section 5-4-303(g) (Supp. 2003) provides only that if the court suspends the imposition of sentence or places a defendant on probation, "the defendant shall be given a written statement explicitly setting forth the conditions under which he or she is being released." We observed in Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980) that although it would be commendable to include written provisions regarding sentencing in the written conditions supplied in compliance with the statute, it is not our duty to amend an act of the legislature where the language of the act is unclear.1

We agree with the State that there is no merit to Chew's assertion that he did not know he was subject to a suspended sentence upon his release from the Department of Correction. The judgment and commitment order controls over the order of suspended imposition of sentence: Chew was bound by the terms of that judgment, which expressly stated that he was subject to five years suspended imposition of sentence after release from incarceration. Likewise, he was bound by the conditions of his suspension, and his signature indicated his awareness that a violation of any condition could subject him to the revocation of his suspended sentence.

Affirmed.

Crabtree and Roaf, JJ., agree.

1 The statute discussed in Harris was Arkansas Statute Annotated section 43-1232 (Repl. 1977), a predecessor of Arkansas Code Annotated section 5-4-303(g).