Jimmy Dane Phillips v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-513

DIVISION IV

JIMMY DANE PHILLIPS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-513

December 7, 2005

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[CR2003-267]

HON. NORMAN WILKINSON,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Jimmy Dane Phillips appeals the revocation of his probation by the Sebastian County Circuit Court. On appeal, he contends that there is insufficient evidence that he violated the terms and conditions of his suspended sentence. We disagree and affirm.

On May 23, 2003, appellant pled guilty to sexual assault in the second degree for sexually molesting a young girl. He was given a suspended imposition of sentence for 120 months and ordered to register as a sex offender. Because appellant was supervised by probation officers during that time frame, he was technically on probation rather than serving a suspended sentence. See Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003). His actual status does not affect the issue on appeal.

The State filed an amended petition1 to revoke on November 29, 2004, asserting the following violations: (1) on or about April 29, 2004, appellant moved from his approved residence to a new residence within 2000 feet of a child-care facility without giving prior notification; (2) on

April 30, 2004, appellant was arrested for public intoxication; (3) on May 6, 2004, appellant tested positive for the use of marijuana and admitted to the use; (4) appellant was in possession of pornographic material in violation of the sex-offender registration rules; (5) appellant was in possession of drug paraphernalia. After a hearing, the trial court found that appellant had violated the terms and conditions of his probation by: (1) moving within 2000 feet of a school; (2) consuming alcohol to excess; (3) using marijuana; (4) possessing pornographic material in violation of the sex-offender registration rules. His probation was revoked, and he was sentenced to five years in the Arkansas Department of Correction.

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). In order to revoke probation or a suspended sentence, the burden is on the State to prove a violation of a condition by a preponderance of the evidence, and on appellate review the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. See Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). Because the burden of proof on the State is not as great in a revocation hearing, 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). Because the 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.

Appellant's sole challenge is related to the revocation of his probation based on his moving to a residence within the "2000 feet from a school" restriction set forth in Ark. Code Ann. § 5-14-128(a). He argues that the restriction violated his equal protection guarantees under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Equal Protection Clause in Article 2, section 3 of the Arkansas Constitution. The State maintains that we need not even reach appellant's argument because he failed to challenge the other three grounds upon which the trial court based its decision to revoke. The State need only have proved that appellantviolated any one of the conditions of his probation in order to support revocation. See Richardson v. State, supra. When a trial court expressly bases its decision on multiple, independent grounds, and an appellant challenges only one of those grounds on appeal, we can affirm without addressing the merits of the argument. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002).

By failing to challenge the findings on the other three grounds, appellant in effect concedes that he committed those particular violations. Therefore, we need not discuss whether the evidence is sufficient to support the trial court's findings that appellant violated his probation by using marijuana and possessing pornographic material in violation of the sex-offender registration rules. Nor do we need to discuss the trial court's finding of a violation for possessing and using alcohol, a violation he admitted to a parole officer. See, e.g., Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). Appellant committed at least three violations of his probation; therefore, we affirm the revocation of appellant's probation.

With regard to the constitutionality, or lack thereof, of the "2000 feet from a school" restriction set forth in Ark. Code Ann. § 5-14-128(a), this court will not address a constitutional argument when a case can be disposed of without so doing. Feland v. State, 355 Ark. 573, 142 S.W.3d 631 (2004). Accordingly, we affirm appellant's revocation upon the grounds not challenged and remain silent on his constitutional challenge related to Ark. Code Ann. § 5-14-128(a).

Affirmed.

Pittman, C.J., and Hart, J., agree.

1 There had been a previous petition to revoke based on failure to report, but it appears that the issue was resolved without his probation actually being revoked and, that is not one of the violations asserted in the amended petition to revoke.