Wheeler v. State , 2017 Ark. App. 541 ( 2017 )

Cite as 2017 Ark. App. 541
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-17-14
STEVEN WAYNE WHEELER Opinion Delivered: October 25, 2017
APPELLANT
APPEAL FROM THE SALINE
V. COUNTY CIRCUIT COURT
[NO. 63CR-15-468]
STATE OF ARKANSAS
APPELLEE
HONORABLE GARY ARNOLD,
JUDGE
AFFIRMED
RITA W. GRUBER, Chief Judge
Steven Wheeler pleaded nolo contendere to two counts of residential burglary. He
received 120 months’ probation by sentencing order of the Saline County Circuit Court,
entered on April 5, 2016. On September 1, 2016, the State filed a petition to revoke,
alleging that Wheeler had violated conditions because during probation he had been
sanctioned for failure to report and for drug use and that he had not complied with
conditions of probation regarding new charges, 1 supervision fees, and fines and costs. At
his revocation hearing, Wheeler testified, “Yeah, I was drinking during that time. I’m
clearly in violation of probation on the felony count. I’m a felony drunk. I’m a dope head,
and I’m in recovery.” The circuit court ruled from the bench that Wheeler “violated
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The petition alleged that Wheeler had been arrested on April 9 for third-degree
domestic battery and had been charged on May 19 with second-degree domestic battery.
Cite as 2017 Ark. App. 541
probation based upon the offenses that he committed subsequent to being placed on
probation . . . and also based on his own testimony, he was drinking while he was on
probation.” The court granted the State’s petition to revoke and sentenced Wheeler as a
habitual offender to 120 months’ imprisonment in the Arkansas Department of Correction.
He appeals from the resultant sentencing order.
Wheeler raises one point on appeal, contending that his revocation should be
reversed because the State did not prove the conditions of his probation. He acknowledges
that he admitted violating probation, but he argues that the State never provided him with
written conditions of probation.
Whether there is proof that a probationer received written conditions of probation
is a procedural matter—not a matter of the sufficiency of the evidence—because the purpose
of providing the conditions in writing is to prevent confusion on the probationer’s part.
Costes v. State, 103 Ark. App. 171, 175, 287 S.W.3d 639, 643 (2008); Myers v. State, 2014
Ark. App. 720, at 4, 451 S.W.3d 588, 590 (rejecting appellant’s argument that there was
insufficient evidence to revoke his suspended imposition of sentence (SIS) because the State
did not introduce terms and conditions of his SIS to prove that he was subject to an SIS or
to prove its terms and conditions). The requirement that the conditions be given to
probationers comports with due process; otherwise, circuit courts would have no power to
imply and later revoke on conditions that were not expressly communicated in writing to
the defendant. Nelson v. State, 84 Ark. App. 373, 380, 141 S.W.3d 900, 905 (2004). It is a
procedural issue that is waived by appellant’s failure to raise it to the circuit court. Id.
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Cite as 2017 Ark. App. 541
Wheeler’s only argument for reversal—that the State did not introduce the written
conditions and terms of probation—is a procedural matter that was not raised to the circuit
court. The issue is therefore not preserved for our review, and we affirm the revocation of
probation.
Affirmed.
WHITEAKER and BROWN, JJ., agree.
Dusti Standridge, for appellant.
Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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