Nicholas Long v. State of Arkansas , 2022 Ark. App. 69 ( 2022 )

Cite as 2022 Ark. App. 69ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-21-370
Opinion Delivered February 9, 2022
NICHOLAS LONG
APPELLANT APPEAL FROM THE BENTON COUNTY
CIRCUIT COURT
[NOS. 04CR-18-33; 04CR-18-2291]
V.
HONORABLE BRAD L. KARREN, JUDGE
STATE OF ARKANSAS AFFIRMED
APPELLEE
WAYMOND M. BROWN, Judge
Appellant Nicholas Long appeals the Benton County Circuit Court’s revocation of his
probation. On appeal, Long argues (1) the evidence was insufficient to revoke his probation; (2) he
had a constitutional right to be physically present at his revocation hearing; and (3) the case must be
remanded to correct the sentencing order to accurately reflect his jail-time credit. We affirm.
On February 14, 2019, Long pleaded guilty to domestic battering in the third degree, a Class
D felony; possession of drug paraphernalia, a Class D felony; failure to appear, a Class C felony; and
violation of a no-contact order, a misdemeanor violation and was sentenced to six years’ probation.
As a condition of probation, Long was ordered to serve 118 days in the Benton County Detention
Center, with credit for 118 days’ time served in jail prior to his guilty plea.
The State filed a petition to revoke Long’s probation on October 9, 2019. The initial petition
was followed by a series of amended revocation petitions, with a hearing ultimately held on the State’s
seventh amended revocation petition that alleged the following eighteen probation violations:
1. The defendant has failed to pay his Arkansas Community Correction supervision fees in
the amount of $215.
2. The defendant has failed to report to his Mirror Image Model groups as directed by his
supervising officer.
3. The defendant has been discharged unsuccessfully from his Mirror Image Model groups
due to non-attendance on 7/17/2019.
4. The defendant has failed to report to his office visit on 06/24/2019 as directed by his
supervising officer.
5. The defendant has changed his place of residence without permission from his supervising
officer.
6. The defendant failed to report as directed for office visit on 01/03/2020.
7. The defendant failed to report for his Domestic Violation Assessment on 12/23/2019.
8. The defendant on or about 06/04/2020, committed the offense of Failure to Appear (For
Felony Offense) in Benton County, Arkansas.
9. The defendant on or about 06/04/2020, committed the offense of Failure to Appear (For
Misdemeanor Offense) in Benton County, Arkansas.
10. The defendant failed to report as directed after being released from the Benton County
Detention Center on 07/07/2020.
11. The defendant failed to report for an office visit on 9/8/2020 as directed by his
supervising officer.
12. The defendant on or about 09/21/2020 was discharged from his Mirror Image Model
Program for Non-Attendance.
13. The defendant tested positive for Methamphetamines on 09/23/2020.
14. The defendant tested positive for Amphetamine on 09/23/2020.
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15. The defendant on or about 10/11/2020, committed the offense of Domestic Battery,
3rd Degree in Benton County, Arkansas.
16. The defendant on or about 10/18/2020. Committed the offense of Domestic Battery,
3rd Degree in Benton County, Arkansas.
17. The defendant on or about 10/18/2020, committed the offense of Violation of a No
Contact Order in Benton County, Arkansas.
18. The defendant on or about 10/18/2020, committed the offense of Criminal Trespass in
Benton County, Arkansas.
After the December 16, 2020 revocation hearing at which Long presented no testimony or
evidence, the circuit court revoked Long’s probation, finding the State met its burden of proving that
he had willfully failed to comply with the conditions of his probation. Specifically, the circuit court
found the State presented sufficient proof as to allegations 1–14 of the revocation petition but failed
to carry its burden as to allegations 15–18. The circuit court sentenced Long to serve a term of six
years’ incarceration. Long has now appealed.
A court may revoke a defendant’s probation at any time prior to the expiration of the period
of probation if the court finds by a preponderance of the evidence that the defendant has inexcusably
failed to comply with a term or condition of the probation. 1 The State has the burden of proving that
a condition of probation was violated.2 The State need only show that the defendant committed one
violation in order to sustain a revocation. 3 We will not reverse the circuit court’s findings unless
1 Ark. Code Ann. § 16-93-308(d) (Supp. 2021).
2 Baker v. State, 2016 Ark. App. 468.
3 Vangilder v. State, 2018 Ark. App. 385, 555 S.W. 3d 413.
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they are clearly against the preponderance of the evidence.4 We defer to the circuit court’s superior
position in determining the credibility of witnesses and the weight to be given to their testimony.5
On appeal, Long challenges the sufficiency of the proof of each alleged violation. Although
the circuit court found that the State had met its burden as to fourteen violations, we will affirm the
revocation if there is sufficient evidence to establish that at least one violation has been committed. 6
Here, the State proved by a preponderance of the evidence that Long inexcusably violated the
conditions of his probation by failing to pay his supervision fees.
When the State introduces evidence of nonpayment of fines or fees, the burden shifts to the
defendant to offer some reasonable excuse for failing to pay.7 “[T]he defendant may not sit back and
rely totally upon the trial court to make inquiry into his excuse for nonpayment.”8 If the defendant
fails to offer an excuse for nonpayment, the circuit court has no duty to ask for an excuse and may
revoke the defendant’s probation.9
Long’s probation officer, Chris Eglin, testified that on the date the seventh amended
revocation petition was filed, Long had failed to pay $215 in supervision fees. As of the hearing date,
Long was delinquent $310 in the payment of supervision fees. Following the State’s case, Long rested
4 Baker, supra.
5 Id.
6 Vangilder, supra.7 Hanna v. State, 2009 Ark. App. 809, 372 S.W.3d 375.
Alexander v. State, 2018 Ark. App. 466, at 4, 561 S.W.3d 744, 746 (internal quotation marks
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omitted).
9 Id.4
without presenting evidence or offering an excuse for his failure to pay fines. If the probationer offers
no reasonable explanation for his failure to pay, then it is difficult to find clear error in a circuit
court’s finding of inexcusable failure.10 Here, because Long offered no contradictory evidence to
dispute the State’s proof or a justification for his failure to pay his court-ordered supervision fees, we
cannot hold that the circuit court clearly erred in finding that he willfully violated the conditions of
his probation. Because the State need only show that Long committed one violation in order to
sustain the revocation, we do not address the remainder of the violations found by the circuit court. 11
Long argues that he testified he was in a homeless shelter in Missouri for two weeks and
financially unable to pay his fees. He contends that in light of this testimony, the State failed to meet
its burden of proving that his failure to pay was inexcusable. Long offered this testimony during
sentencing after the circuit court had already revoked his probation. We do not consider testimony
that was not before the circuit court when it made its ruling. 12
Next, Long argues that his appearance at the revocation hearing via videoconference violated
his constitutional right to be present at a critical stage of the proceedings. A defendant has a
constitutional right to be present at any critical stage of the proceedings. 13 The Supreme Court of
the United States held that sentencing is a critical stage of the trial, even one related to the revocation
of probation based on an underlying felony offense. 14 Long contends that his videoconference
10 Vail v. State, 2014 Ark. App. 407, 438 S.W.3d 286.
11 See Baker, supra.
12 Jacobs v. State, 316 Ark. 96, 870 S.W.2d 740 (1994).
13 Lowery v. State, 297 Ark. 47, 759 S.W.2d 545 (1988).
14 Mempha v. Rhay, 389 U.S. 128 (1967).
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appearance from the Benton County Jail at his revocation hearing did not equate to being “present,”
and nothing in the record reflects that he waived his right to be physically present for the hearing.
The revocation hearing occurred on December 16, 2020. On November 20, 2020, the
supreme court issued a per curiam announcing its newest protocols to help protect the public in
response to the COVID-19 pandemic.15 The court stated that “[c]riminal matters . . . shall continue
to take place either by videoconference or in person” and that it “expects to hold court hearings
through appropriate and safe means—preferably virtual and telephonic (both on the record)—for
justice to occur.”16 Long does not challenge the supreme court’s authority to implement these
procedures. Accordingly, we find no error and affirm on this point.
Long’s last argument is that he is entitled to the 178 days’ jail-time credit announced at the
December 20 hearing rather than the sixty-day jail-time credit reflected on his May 6, 2021
sentencing order. Relying on Pascuzzi v. State,17 he urges this court to remand the case to correct the
clerical error. In Pascuzzi, the case was remanded to correct the sentencing order that had multiple
boxes checked showing that Pascuzzi both pled guilty and was found guilty by the court and sentenced
by a jury. That is not the case here. The sentencing order itself is not inconsistent as it was in Pascuzzi.
Further, we have held that when there is a discrepancy between the pronouncement of sentence and
the sentencing order, it is the entered sentencing order that controls.18
15 See In re Response to the COVID-19 Pandemic, 2020 Ark. 384 (per curiam).
16 Id. at 2.
17 2016 Ark. App. 213, 489 S.W.3d 709.
18 Vance v. State, 2011 Ark. 243, 383 S.W.3d 325.
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Moreover, the record demonstrates that the exclusion of the additional 118-day jail-time
credit was not an inadvertent scrivener’s error. Long was ordered to serve 118 days in the Benton
County Detention Center as a condition of his probation. If a court suspends the imposition of
sentence or places a defendant on probation, the court may require as an additional condition of its
order that the defendant serve a period of confinement in the county jail, city jail, or other authorized
local detention, correctional, or rehabilitative facility.19 The supreme court has held that time served
as a condition of probation cannot be credited to a future prison sentence under the jail-time-credit
statute.20 Consequently, Long is entitled to only sixty days’ jail-time credit for time served from his
most recent arrest on new charges to the date of the revocation hearing, not the additional 118 days
he served as a condition of his probation.
For the reasons stated herein, we affirm the circuit court’s revocation of Long’s probation
and the resulting six-year prison sentence.
Affirmed.
ABRAMSON and BARRETT, JJ., agree.
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.
19 Ark. Code Ann. § 5-4-304(a) (Supp. 2021).
20 Burgess v. State, 2016 Ark. 175, 490 S.W.3d 645.
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