Parker v. State
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION II
No. CACR08-1474
MELVIN PARKER,
Opinion Delivered
JUNE 3, 2009
APPELLANT
APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT,
[NO. CR-05-193]
V.
STATE OF ARKANSAS,
APPELLEE
HONORABLE DAVID BURNETT,
JUDGE
AFFIRMED
KAREN R. BAKER, Judge
On December 5, 2005, appellant Melvin Parker pled guilty to the offense of possession
of a controlled substance with the intent to sell or deliver, a Class Y felony. He was placed
on 120 months’ probation. On October 26, 2007, the State filed a petition to revoke his
probation. In the petition to revoke, the State alleged that appellant had violated the
following conditions of his probation: failure to pay fines, costs, and fees as directed; failure
to report to probation as directed; failure to pay probation fees; failure to notify sheriff and
probation office of current address and employment; possession and use of cocaine; and
departure from the State without permission.
A hearing was held on August 26, 2008. At the conclusion of the testimony, the
Crittenden County Circuit Court revoked appellant Melvin Parker’s probation and sentenced
him to thirty-six months’ imprisonment in the Arkansas Department of Correction and
eighty-four months’ suspended imposition of sentence. On appeal, Parker asserts that the trial
court’s decision to revoke his probation was clearly against the preponderance of the evidence
when Parker had reasonable excuses, particularly his indigence and poor health, for failing to
pay, leaving the jurisdiction, and failing to report. He also asserts that the trial court abused
its discretion by not granting his motion for a continuance. We affirm Parker’s revocation.
We have held that to revoke probation or a suspended sentence, the burden is on the
State to prove the violation of a condition of probation or suspended sentence by a
preponderance of the evidence. See Ark. Code Ann. § 5-4-309(d) (Repl.2006); Bradley v.
State, 347 Ark. 518, 65 S.W.3d 874 (2002); Barbee v. State, 346 Ark. 185, 56 S.W.3d 370
(2001); Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). On appellate review, the trial
court’s findings will be upheld unless they are clearly against a preponderance of the evidence.
Bradley, supra (citing Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986)).
Parker asserts that the trial court’s decision to revoke his probation for failing to pay
his court-ordered fines and costs was clearly against the preponderance of the evidence.
Sherica Montgomery, an employee of the Department of Community Correction, testified
for the State. She testified that she filed a violation report and had an arrest warrant issued for
Parker because he failed to report as ordered, moved out of his residence without contacting
her, and was $375 in arrears on his supervision fees. Moreover, Debra Wiseman, an employee
of the Crittenden County Sheriff’s Department, testified that Parker had not made a single
payment toward his court-ordered fines, costs, and fees totaling $750, and had not made the
court-ordered payment of $1,500 to the Crittenden County Drug Fund. Once the State has
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introduced evidence of nonpayment, the burden of going forward shifted to the defendant
to offer some reasonable excuse for his failure to pay. Reese v. State, 26 Ark. App. 42, 759
S.W.2d 576 (1988).
Parker’s only excuse for his delinquency in making payment was that he was indigent.
The record showed that Parker was receiving a monthly disability check of $700; yet, he
admitted that he had not made one payment toward his court-ordered fines, costs, and fees.
Parker testified that he used his monthly income to pay rent. He further testified that he did
not receive his disability check while he was incarcerated, and that further impeded his ability
to make payments. Nonetheless, Parker admitted that he had received two checks since he
was released from jail, but had still “not paid anything.” While Parker requested more time
to meet his obligations and stated that he now had the opportunity for a part-time job to help
him get “caught up” on his payments, the trial court is not required to believe any witness’s
testimony, especially that of the accused, since he is the person most interested in the outcome
of the case. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). Because Parker did not
provide a reasonable excuse for his failure to pay, there was sufficient evidence to support the
trial court’s finding that Parker violated the conditions of his suspended sentence by failing to
pay his fines, costs, and fees. The State need only prove that the defendant committed one
violation of the conditions. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004).
Moreover, Parker asserts that the trial court erred in revoking his probation for
violating the condition that he not leave the State without permission and for failure to report.
However, Parker admitted during his testimony that he “reported to [his] probation officer
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only a few times.”
He also testified that he left the State to find housing because he was
homeless, and he admitted that he did not report to the probation office that he was leaving
the jurisdiction, even though he had access to a telephone. However, as discussed above,
Parker’s excuse for leaving the State without permission and failing to report was that he was
indigent, homeless, and in poor health. Again, the trial court did not have to believe his
testimony, as he was the person most interested in the outcome of the case. See Ross, supra.
Parker’s final point on appeal is that the trial court abused its discretion by not granting
his motion for a continuance. Parker asserts that “the court should have given him time to
show the court that how he could act with his new part-time job, his social security check
restored, and a stable place to live.” As to the denial of a motion for continuance, we review
the trial court’s decision for an abuse of discretion. Parker v. State, 292 Ark. 421, 731 S.W.2d
756 (1987). ; Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). It is the appellant’s burden
to demonstrate abuse of that discretion. See id.
Here, Parker moved for a continuance on the morning of his revocation hearing. His
sole reason for requesting the continuance was so that he could have more time to
demonstrate to the court that he could obtain stable housing, maintain a part-time job, and
have his social security check restored. Yet, Parker had already received one additional
opportunity to comply with his probation conditions when on April 8, 2008, the trial court
granted a motion for continuance, moved the trial date to June 10, 2008, and ordered him
to report to probation and pay fines, costs, and fees. Parker failed to do so. Under these facts,
where Parker had previously been granted additional time to comply, we find that Parker has
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failed to show an abuse of discretion in denying the second motion for a continuance for the
same purpose. In addition, Parker must also make a showing of prejudice, Finch v. State, 262
Ark. 313, 556 S.W.2d 434 (1977), which he has also failed to do.
Affirmed.
H ART and R OBBINS, JJ., agree.
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