Edward Franklin Haley v. State of Arkansas
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DIVISION I
CACR06-20
O CTOBER 4, 2006
EDWARD FRANKLIN HALEY
APPELLANT
APPEAL FROM THE IZARD COUNTY
CIRCUIT COURT
[NO. CR 99-37-1]
V.
HON. TIM WEAVER,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
R OBERT J. G LADWIN, Judge
Appellant Edward Franklin Haley appeals from the Izard County Circuit Court’s order
revoking his probation. On appeal, he claims that the circuit court erred in allowing an
uncounseled plea to form the sole basis for the revocation of his probation. We affirm.
Appellant pleaded guilty to sexual abuse in the first degree on August 1, 2002. He
was placed on probation for sixty months. One condition of his probation was that he not
commit a criminal offense punishable by imprisonment.
On or about April 22, 2005, appellant committed the crime of theft of property.
Appellant, who was not represented by counsel, pleaded guilty in district court to the theft-ofproperty charge and was ordered to pay a fine. On May 27, 2005, the State filed a petition
in circuit court for revocation against appellant based upon the theft-of-property charge.
At the hearing on the revocation petition, the circuit court heard testimony from Liz
Lay, a Mountain View, Arkansas, police officer regarding the theft charge. Officer Lay
testified that she had received a complaint regarding pictures of a teenage girl taken from a
Wal-Mart store. Officer Lay explained that she confirmed with the store that appellant had
wrongfully removed the pictures. When the officer contacted appellant, appellant stated that
if he had pictures that were not his, he took them by mistake. Officer Lay further testified
that when she advised appellant she would send someone to pick up the pictures, he objected,
stating that some of the pictures were of a woman who knew he had taken the pictures.
Officer Lay stated that she advised appellant at that time that he was not to have pictures of
children. Appellant responded that the pictures were not of a child, but of a young woman.
Officer Lay testified that appellant told the Wal-Mart photographer, when she asked if the
pictures were of his granddaughter, that the pictures were of his helper. The pictures were
subsequently retrieved from appellant, and he did not resist.
Appellant testified he would not have pleaded guilty to the theft charge had he known
it would be used against him in the revocation hearing. He further testified that the
prosecuting attorney told him it would be best for him to plead guilty.
By order of September 13, 2005, the circuit court found that the State proved by a
preponderance of the evidence that appellant violated the terms of his probation, and
appellant was sentenced to five years in the Arkansas Department of Correction. It is from
this order that the appeal is taken.
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In a probation-revocation hearing, the State must prove its case by a preponderance
of the evidence. Smith v. State, 9 Ark. App. 55, 652 S.W.2d 641 (1983). To revoke
probation or a suspension, the circuit court must find by a preponderance of the evidence that
the defendant inexcusably violated a condition of that probation or suspension. Ark. Code
Ann. § 5-4-309 (Supp. 2001); Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). The
State bears the burden of proof, but need only prove that the defendant committed one
violation of the conditions. Id. When appealing a revocation, the appellant has the burden
of showing that the trial court's findings are clearly against the preponderance of the
evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for
the revocation of probation or suspended sentence. Lamb v. State, 74 Ark. App. 245, 45
S.W.3d 869 (2001). Since the determination of a preponderance of the evidence turns on
questions of credibility and the weight to be given testimony, we defer to the trial judge’s
superior position. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003).
The Arkansas Rules of Criminal Procedure require that a defendant be afforded
counsel unless the judge in a misdemeanor proceeding determines that there is no possibility
of imprisonment. Ark. R. Crim. P. 8.2(b) (2003). Appellant contends that even though he
pleaded guilty to the theft of property misdemeanor, he did not violate the terms of his
probation because he was not subject to imprisonment. He reasons that because he had not
been appointed counsel, in district court he could not have been sentenced to prison under
Rule 8.2(b). Further, because his probation condition only prohibited him from committing
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a criminal offense “punishable by imprisonment,” he remained in compliance. However,
it was possible, based upon the offense of theft of property, for appellant to have been
imprisoned had he competently waived counsel, or if counsel had been appointed pursuant
to Rule 8.2(b). Therefore, to claim that appellant could not violate his probation by
committing the offense of theft of property is incorrect.
Also, appellant claims that the circuit court based its decision to revoke solely on an
uncounseled misdemeanor conviction. He argues that in Alexander v. State, 258 Ark. 633,
527 S.W.2d 927 (1975), the Arkansas Supreme Court, quoting the United States Supreme
Court in Argersinger v. Hamlin, 407 U.S. 25 (1972), stated that an uncounseled municipal
court conviction cannot be used for the purpose of revoking a suspended sentence as the net
effect thereof is “the actual deprivation of a person’s liberty” without “the guiding hand of
counsel.” Alexander, 258 Ark. at 635, 527 S.W.2d at 929. However, the Arkansas Supreme
Court went on to state, “Of course, this does not mean that the responsible officials cannot
show that the facts giving rise to the municipal court conviction are sufficient themselves to
revoke the suspended sentence.” Id. at 637, 527 S.W.2d at 930.
Here, the State presented evidence of the facts giving rise to the district court
conviction sufficient to revoke the suspended sentence. This court will defer to the circuit
court’s superior position in determining the credibility of the witnesses, which included both
the police officer and the appellant. The circuit court heard the testimony regarding the
guilty plea, along with the testimony that led to appellant’s arrest for theft of property. There
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was evidence before the circuit court that appellant, a registered level-three sex offender,
took photographs of a teenage girl from a Wal-Mart store. The circuit court also heard
evidence that appellant had seen the pictures at the store and told the Wal-Mart photographer
that they were of appellant’s helper who had worked for him earlier that morning. Therefore,
we cannot say the circuit court solely relied upon the district-court judgment, and we hold
that the circuit court’s findings are not clearly against the preponderance of the evidence.
Affirmed.
R OBBINS and B AKER, J.J., agree.
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