Willie Williams v. State of Arkansas

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ar04-308

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

WILLIE WILLIAMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-308

DECEMBER 8, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION,

[NO. CR1998-1128]

HONORABLE JOHN W.

LANGSTON, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Willie Williams appeals the revocation of his probation as entered by the Pulaski County Circuit Court. His sole argument on appeal is that the trial court's decision to revoke is clearly against the preponderance of the evidence because his violations were excusable. We disagree and affirm.

The facts leading up to revocation are not in dispute. Appellant pleaded guilty to battery on July 10, 1998, for which he was placed on five years of probation, ordered to pay fines and fees, ordered to pay $5,000 restitution, and ordered to obey other conditions not relevant to this appeal. In March 1999, the State petitioned for revocation, alleging that appellant had failed to pay his probation fees, failed to pay restitution, and failed to report monthly to his probation officer as required. Appellant was arrested on the revocation warrant on October 25, 2002.

At the hearing conducted on November 23, 2003, Delores Flowers, appellant's probation officer, testified that she first encountered appellant on July 10, 1998. Flowers said she met with appellant, read over the conditions of his probation with him, and they both signed the document. The conditions specifically required that he report to her on a monthly basis. From July 10, 1998, until the petition for revocation was filed in March 1999, appellant never came to see her. From and after March 1999, appellant was supposed to report to her weekly, but appellant never came except once on January 13, 2003. Flowers testified that appellant paid nothing toward fines, fees, or restitution.

Appellant testified that he currently lived at 803 Marshall Street in Little Rock. He agreed that Ms. Flowers went over the conditions of probation with him back in July of 1998, and he candidly admitted that he had not complied. Appellant agreed that he had not reported, stating that he did not know why but supposing that he panicked. Appellant admitted that he paid nothing he owed under the probation conditions. Appellant explained that since January 2000, he suffered from gout and that he had to stop working in 2001. He agreed he had not come to talk to his probation officer, stating that he had met with her only once after he became ill. Appellant said that at the time of the hearing he was fifty years old, unemployed, and dependent upon his brother to provide him housing and support.

Upon this evidence, the trial judge found appellant to have willfully violated the rules of his probation by failing to report and failing to pay restitution. Appellant was sentenced to three years in prison, and this appeal followed.

In revocation proceedings, a trial court must find by a preponderance of the evidence that a defendant inexcusably violated a condition of probation. Ark. Code Ann. § 5-4-309(d) (Supp. 2001); Shaw v. State, 65 Ark. App. 186, 986 S.W.2d 129 (1999). We do not reverse a trial court's findings on appeal unless they are clearly against the preponderance of the evidence. Petty v. State, 31 Ark. App. 119, 788 S.W.2d 744 (1990). Notably, the Stateneed only prove one violation of the probation conditions for the trial court to revoke a probation. Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987). A challenge to the sufficiency of the evidence at the trial court level pursuant to Ark. R. Crim. P. 33.1 (2003) is not a prerequisite to having the issue preserved for appellate review. See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001); General v. State, 79 Ark. App. 219, 86 S.W.3d 15 (2002).

Appellant argues on appeal that despite his admitted failures to comply between July 1998 and March 1999, the evidence should have been viewed in light of his ill-health from and after January 2000 and his unemployment from and after 2001. Appellant points out that his health and finances did nothing but deteriorate between January 2000 and November 2003 when the hearing was finally conducted.1 We disagree that appellant has demonstrated that the trial judge clearly erred.

Appellant's current difficulties are simply irrelevant to the time period in which he was accused of inexcusable violation of the conditions of probation, between July 1998 and March 1999. Had he suffered from severe ill-health and poor finances prior to March 1999, his argument might be persuasive. We agree that Bearden v. Georgia, 461 U.S. 660 (1983), and Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984), stand for the proposition that a sentence to imprisonment for nonpayment of a fine works an invidious discrimination against indigent defendants in violation of the Equal Protection Clause of the Fourteenth Amendment. However, appellant incorrectly states that he falls within the parameters of those holdings.

Appellant admitted openly that between July 1998 and March 1999, when he was both physically and financially able, he failed to pay or report for no reason whatsoever. The petition for revocation alleged, and the State was obligated to prove, violations of his conditions as they existed on March 1999. Further, appellant continued to ignore his obligations until January 2000, when appellant said his situation radically changed. In sum, appellant offered no excuse for his failings prior to January 2000.

Moreover, the State need only prove a single violation of conditions to revoke probation. Ross v. State, supra. Appellant did not report to his probation officer as required. It is noteworthy that the only time appellant reported to his probation officer after July 10, 1998, was a single visit after he became ill.

Because we cannot hold that the trial court clearly erred in finding that his admitted violations to report or pay prior to March 1999 were "inexcusable," we affirm the revocation of probation.

Affirmed.

Bird and Roaf, JJ., agree.

1 Appellant moved to dismiss the petition to revoke on the basis that the State allowed the warrant to become stale prior to effecting an arrest in October 2002. Appellant argued that this delay denied him due process and acted as a waiver of his probation violations, citing to out-of-state case law and Ark. Code Ann. § 5-1-109(f). He does not advance that argument on appeal, and therefore we do not address it. Additionally, appellant's failure to obtain a ruling on the motion would also preclude appellate review. See Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003); Rutledge v. State, 345 Ark. 243, 45 S.W.3d 825 (2001).