Jerome Whipple v. State of Arkansas

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ar04-446

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

JEROME WHIPPLE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-446

APRIL 6, 2005

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. CR2002-6131]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Jerome Whipple, appeals from the trial court's order revoking his probation and sentencing him to three years' imprisonment in the Arkansas Department of Correction. On appeal, appellant argues only that that trial court abused its discretion by sentencing him to a term of three years' imprisonment. We find no error and affirm.

Appellant does not raise the issue of sufficiency of the evidence; therefore, only a brief summary of the facts is necessary. Appellant originally pled guilty to sexual indecency with a child, a Class D felony, and was sentenced to five years' probation, thirty days jail time, a $1000 fine plus court costs, and was ordered to register as a sex offender. On June 9, 2003, the State filed a petition to revoke alleging that appellant had violated the conditions of his probation by being arrested for the offense of harassment, a Class A misdemeanor. On October 20, 2003, the State filed an amended petition, alleging that on June 14, 2003, July 12, 2003, and September 28, 2003, appellant was seen, unsupervised, at home or in his vehicle with children in violation of an order from his probation officer. The State later amended to add the allegation that appellant had violated his probation by contacting the child victim's mother.

At the probation revocation hearing on December 15, 2003, appellant's probation officer, Thomas Anderson, testified that he had advised appellant on May 16, 2003, not to employ anyone under the age of eighteen. Appellant confirmed during this discussion that he had for some time had a seventeen-year-old female employee.

Belinda Webb, mother of the child victim in the underlying sexual offense, testified that she had contact with appellant on September 14, 2003. She was ordering breakfast at McDonald's when appellant entered and began calling her name. She immediately went outside to her vehicle, while appellant remained inside, standing at the window and waving. Ms. Webb also testified that on September 28, 2003, while on her way home from Wal-Mart, she saw appellant with three children all under the age of ten in his vehicle.

Appellant briefly took the stand and denied having been with three children unsupervised by another adult. Finding that he had violated the terms of his probation, the trial court revoked appellant's probation and sentenced him to three years' imprisonment in the Arkansas Department of Correction.

On appeal, appellant concedes that "appellant may have technically violated certain conditions of his probation," but asserts that the trial court abused its discretion in sentencing appellant to three years' imprisonment, in light of the age, condition, infirmity, and position of appellant. Sexual indecency with a child is a Class D felony. See Ark. Code Ann. § 5-14-110 (Supp. 2003). For a Class D felony, the sentence shall not exceed six years. Ark. Code Ann. § 5-4-401(a)(5) (Repl. 1997); Smith v. State, 85 Ark. App. 475, ___ S.W.3d ___ (2004). If a court revokes a term of probation, it may enter a judgment of conviction and may impose any sentence that might have been originally imposed for the offense of which he was found guilty. Ark. Code Ann. § 5-4-309(f)(1)(A) (Supp. 2003). The three-year sentence imposed was within the sentencing range provided for the offense by statute, and we find no abuse of discretion by the trial court in sentencing appellant to three years' imprisonment for the offense of sexual indecency with a child.

Affirmed.

Gladwin and Griffen, JJ., agree.