Rogers v. State , 2014 Ark. App. 310 ( 2014 )

2014 Ark. App. 310
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-760
Opinion Delivered: May 14, 2014
APPEAL FROM THE CRAWFORD
BRANDON MICHAEL ROGERS COUNTY CIRCUIT COURT
APPELLANT [NO. CR-2008-1 A]
V. HONORABLE GARY COTTRELL,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
RHONDA K. WOOD, Judge
Appellant Brandon Rogers argues that the circuit court erred in revoking his
suspended imposition of sentence by finding that his nonpayment of restitution, fines,
costs, and fees was willful and inexcusable. We find no error and affirm.
Rogers pleaded guilty to the charge of battery in the second degree and received a
suspended sentence of six years. As a part of his plea agreement, he was ordered to pay
restitution, fines, costs, and fees. The State filed a petition and an amended petition for
revocation alleging that Rogers ceased making payments on these obligations. After a
revocation hearing, the circuit court found that Rogers had inexcusably violated the
conditions of his suspended sentence by not paying his restitution, fines, costs, and fees.
A circuit court may revoke a defendant’s suspended imposition of sentence if it
finds by a preponderance of the evidence that the defendant has inexcusably failed to
comply with a condition of the suspension. Ark. Code Ann. § 16-93-308(d) (Supp. 2013).
2014 Ark. App. 310
Because this determination turns on questions of credibility and the weight to be given
testimony, we defer to the circuit court’s superior position. Richardson v. State, 85 Ark.
App. 347, 157 S.W.3d 536 (2004). Where the alleged violation is failure to make court-
ordered payments, the failure to pay must be inexcusable. Phillips v. State, 101 Ark. App.
190, 272 S.W.3d 123 (2008). Once the State introduces proof of nonpayment, the
burden shifts to the defendant to provide a reasonable excuse for the failure to pay.
McGuire v. State, 2014 Ark. App. 52.
At Rogers’s revocation hearing, his entire file was made part of the record. The
State introduced evidence that, other than one exception, he had not made any payments
toward restitution, fines, costs, or fees in over three years. Rogers testified that he was
aware of these obligations, but contended he had trouble obtaining work due to his prison
record. He also admitted that he worked for a hotel in 2012 and was recently hired at
Burger King. Rogers claimed that he saved money from his new job and was planning to
use it along with his brother’s casino winnings to make a payment towards his arrearages,
but that the money was stolen from his car a few nights before the hearing.
Due to the uncontroverted evidence that Rogers violated terms of his suspended
sentence, the question becomes whether his violation was inexcusable. The circuit court
found Rogers’s testimony self-serving and not credible. The court specifically mentioned
the fact that Rogers held two jobs and still failed to make any payments. Because we defer
to the circuit court’s superior position to determine issues of credibility, we cannot say
that the court was wrong to find that Rogers failed to meet his burden of showing a
reasonable excuse for his failure to pay. Therefore, we affirm.
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2014 Ark. App. 310
Affirmed.
WALMSLEY and BROWN, JJ., agree.
Lisa-Marie Norris, for appellant.
Dustin McDaniel, Attorney General, by: Nicana C. Sherman, Ass’t Att’y Gen., for
appellee.
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