Blake Patrick McLaughlin v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-197

DIVISION III

BLAKE PATRICK MCLAUGHLIN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-197

OCTOBER 26, 2005

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. CR-2003-1384-1]

HON. WILLIAM A. STOREY,

JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Blake McLaughlin appeals from the trial court's decision to revoke his probation, for which he was sentenced to forty months in prison with an additional thirty-two months suspended. As his sole point on appeal, McLaughlin argues that there was insufficient evidence to show that he inexcusably violated the conditions of his probation. We affirm.

On October 10, 2003, McLaughlin pled guilty to aggravated assault and was placed on three years' probation. The conditions of his probation included (1) that he must not commit a criminal offense punishable by imprisonment, and that he notify his probation officer within twenty-four hours after being arrested or questioned by a law enforcement officer; (2) that he not drink or possess intoxicating or alcoholic beverages; (3) that he not use, sell, distribute, or possess any controlled substance; (4) that he report as directed to his probation officer; and (5) that he complete a substance-abuse treatment program if deemed necessary by his probation officer.

In November 2004, the State filed an amended motion to revoke McLaughlin's probation, which alleged that McLaughlin had been arrested on new charges of public intoxication and fleeing; that he had failed to report to his probation officer as directed; that he had tested positive twice for marijuana; and that he had failed to attend substance-abuse treatment and had used alcohol.1

At the revocation hearing, Elliot Leubker of the Fayetteville Police Department testified that on August 21, 2004, he was patrolling a block party to identify underage drinkers when he noticed McLaughlin walking across the street carrying and drinking a bottle of beer. Leubker said that he told McLaughlin that he was not allowed to possess alcohol in the city streets and that he asked McLaughlin to place the beer bottle on the ground. According to Leubker, McLaughlin did so, but McLaughlin also started to "reach his hands into his pockets." Leubker said that he then told McLaughlin to remove his hands from his pockets, and, when he refused, Leubker decided to conduct a pat-down search for weapons. According to testimony, McLaughlin asked Leubker if he had a warrant, and, as Leubker approached McLaughlin to conduct the pat-down search, McLaughlin fled on foot. A chase ensued, and McLaughlin was eventually caught. He was later arrested and charged with fleeing and public intoxication.2

Tracy Crews, McLaughlin's probation officer, also testified at the hearing. She said that McLaughlin had been arrested in January for various offenses and that he wassubsequently arrested on August 21 for fleeing and public intoxication. She also said that a request was made for his probation to be revoked following the January arrest and that she advised him to come in once a week thereafter. According to Crews, he "did that for a little while," but he then failed to report for the full month of February.

Crews said that McLaughlin reported in January, April, May, and June, but he did not report in July. She also said that he reported in August after she sent a warning letter to him in July. Crews further testified that on August 17, McLaughlin came in and advised her that he used marijuana daily, and she told him that he had to seek drug treatment. She said that, shortly thereafter, he was arrested again. According to Crews, McLaughlin tested positive for marijuana on August 17, and this was not the first time that he had tested positive.

Crews testified that she referred McLaughlin to a drug-treatment provider on August 17, but to the best of her knowledge, he did not contact the provider. In addition, Crews said that McLaughlin did not come in every week in the month of August or September as he was required to do. Crews also opined that probation was not appropriate for McLaughlin.

On cross-examination, Crews said that she did not conduct McLaughlin's drug test herself. She also disputed any claim by McLaughlin that he had never been drug tested. She admitted that, from time to time, she had been absent when probationers came in, but she said that she told them that they must come back. She stated that McLaughlin did not report at all in March, April, July, and September. She also said that he failed to attend substance-abuse treatment. Crews further testified that McLaughlin did not do as he was told, that he did not take advantage of free drug treatment, and that he had tested positive for marijuana twice.

Blake McLaughlin then testified on his own behalf. He admitted that he had been arrested for public intoxication and fleeing, and he also said that he had "one beer" at a back-to-school party. He denied putting his hands in his pockets when questioned by Leubker andsaid that he was instead reaching in his back pocket for his wallet to get his identification. He said that he ran because he was on probation and he was afraid that Leubker would call police. Furthermore, he said that he did not know that Leubker was a police officer because Leubker did not identify himself.

McLaughlin explained that he was at the party because friends "asked him to go out," and said that he drank "a quarter or a half" of the beer before pouring it out. He also denied slurring his speech and claimed that he sat down and gave up after the foot chase.

McLaughlin said that he "could have missed a month or two" in reporting to his probation officer. He explained that it might have been because he was busy and simply missed the meetings, or because he had not set an exact time to meet with Crews. McLaughlin said that there were times that Crews was not there when he reported, but that he always filled out paperwork. He said that Crews never told him to report weekly, just monthly. He claimed that he called and left voice mail messages asking when he should come in to meet with her, but that he never received any return calls. He said that he tried to call probably "three or four, maybe five times."

McLaughlin further testified that he had never been tested for marijuana. He said that he admitted to Crews that he had smoked marijuana as a stress reliever and that she did refer him to substance-abuse treatment. He also said that he called Nancy Stansbury at the treatment provider's office, but they never could find a "time that would be good" to meet for an assessment, so he never met with her. Though he later scheduled an appointment with Stansbury, it was apparently cancelled because of his pending revocation.

McLaughlin said that he had completed an anger management course at Ozark Guidance Center, that he was attending the University of Arkansas, that he worked for the University and had three more semesters to go until he graduated with a finance degree, andthat he worked approximately fifteen hours per week. He also said that he had a "seasonal position" at Pier 1 so that he could work over the holidays when school was out. He further testified that he lived with his grandfather, that he did not go out with friends, and that he went to work and school each day. He claimed that he had no record of arrest since he began staying at home, and he admitted to making mistakes since being placed on probation, but said that he was "willing to do anything the Court says" so that he could "move on with [his] life."

Clyde Johnson, McLaughlin's grandfather, also testified on McLaughlin's behalf. He said that McLaughlin lived with him and had not been in trouble since August. He also said that McLaughlin had been staying home and that "something [had] changed." Johnson stated that he had been "keeping tabs" on McLaughlin, and that he would continue to do so. He also said that he had been present on occasions when McLaughlin tried to call his probation officer and could not reach her.

Following the hearing, the trial court granted the State's revocation petition, stating in part as follows:

The proof is pretty much undisputed that Mr. McLaughlin has violated a number of the conditions of his probated sentence. The conditions of probation clearly state that probationers are not to use alcohol, he has. ... [T]he conditions clearly state that probationers are not to use illegal controlled substances, clearly he has by his own admission ... smoked marijuana. The testimony in my judgment clearly supports the allegation that he's smoked marijuana frequently and I think the testimony clearly supports the State's contention that he tested twice positive for marijuana, although that is disputed by the Defendant. Clearly, he's missed a number of meetings with his probation officer. ... Clearly in my judgment based on the testimony of the police officer, he's committed a new offense or at very least a fleeing. Clearly in my judgment the proof supports the allegation that he failed to attend the substance abuse treatment that he was directed to attend. So there were clearly in my judgment based on the proof that was adduced at this hearing numerous violations of his conditions of probation.

(Emphasis added.) The court sentenced McLaughlin to forty months in prison, with an additional thirty-two months suspended.

A trial court may revoke a defendant's probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his probation. Ark. Code Ann. § 5-4-309(d); Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). In probation revocation proceedings, the State has the burden of proving that appellant violated the terms of his probation, as alleged in the revocation petition, by a preponderance of the evidence, and an appellate court will not reverse the trial court's decision to revoke probation unless it is clearly against the preponderance of the evidence. Barbee, supra.

Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation or suspended sentence revocation. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). Thus, the burden on the State is not as great in a revocation hearing. Id. Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the trial judge's superior position. Id.

McLaughlin now contends that there was insufficient evidence to show that he inexcusably failed to report to his probation officer as directed, that he had twice tested positive for marijuana, that he had failed to attend substance-abuse treatment, and that he had been arrested for public intoxication. Specifically, he argues that his deviations, if any, were "minor," and that at the time of his revocation hearing, he had demonstrated that he was no longer getting into trouble and had made "positive steps toward permanent change in his life." Furthermore, McLaughlin claims that the probation violations were actually "misunderstandings" or "failures in communication" between him and his probation officer and that they were not sufficient reasons for a revocation and prison sentence. He claims that, at most, he should have continued on probation and been ordered to appear more often to seethe probation officer; thus, he asks this court to reverse the trial court's decision and remand the matter back for a "more appropriate sentence."

We need not address McLaughlin's arguments regarding the sufficiency of the evidence to show that he violated certain conditions of his probation because McLaughlin failed to challenge one of the trial court's stated grounds for having revoked his probation-that McLaughlin had committed a fleeing. Even were we to assume that McLaughlin's argument with respect to the other alleged violations was correct, we still would not reverse in light of his failure to attack the trial court's independent, alternative basis for its ruling. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002) (holding that, where a trial court makes independent, alternative rulings that are each dispositive of an appellant's claim, and where the appellant attacks only one of those rulings on appeal, the case will be summarily affirmed without addressing either ruling, even if the challenged ruling has merit). Consequently, we affirm the trial court's decision to revoke McLaughlin's probation.

Furthermore, the underlying offense in this case-aggravated assault-is a Class D felony that is punishable by up to six years' imprisonment. See Ark. Code Ann. § 5-4-401(a)(5) (Repl. 1997). Here, following the revocation of McLaughlin's probation, the court sentenced him to forty months in prison with an additional thirty-two months suspended. This is clearly within the limitations imposed by statute for aggravated assault. As the State points out, when a sentence is in the range of punishment determined by the General Assembly, an appellate court is not free to reduce it, even if it feels that the sentence is unduly harsh. See Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001).

Affirmed.

Pittman, C.J., and Neal, J., agree.

1 The amended motion apparently clarified an earlier motion to revoke McLaughlin's probation. The earlier motion, filed in September 2004, alleged that McLaughlin had been arrested on August 30, 2004, on "new charges of Possession of [a] Controlled Substance, Resisting Arrest, Public Intoxication, and Violation of Arkansas Hot Check Law," whereas the amended motion stated that McLaughlin had been arrested on August 21, 2004, on "new charges of Public Intoxication, and Fleeing."

2 Leubker later testified that McLaughlin smelled of intoxicants and was slurring his speech during their initial conversation on the street.