Jordan Abernathy v. State of Arkansas ( 2024 )


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  •                                   Cite as 
    2024 Ark. App. 532
    ARKANSAS COURT OF APPEALS
    DIVISION IV
    No. CR-24-89
    Opinion Delivered October 30, 2024
    JORDAN ABERNATHY
    APPELLANT APPEAL FROM THE ASHLEY
    COUNTY CIRCUIT COURT
    V.                                         [NO. 02CR-19-244]
    STATE OF ARKANSAS                            HONORABLE ROBERT B. GIBSON III,
    APPELLEE JUDGE
    AFFIRMED; REMANDED TO
    CORRECT SENTENCING ORDER
    MIKE MURPHY, Judge
    Appellant Jordan Abernathy appeals from the December 1, 2023 sentencing order
    revoking his suspended imposition of sentence (SIS). Abernathy had previously pleaded
    guilty to one count of possession of drug paraphernalia (a Class D felony) and one count of
    possession of a firearm by certain persons (a Class B felony). He was sentenced to eight years’
    incarceration and six years’ SIS. Upon revocation, he was sentenced to fifteen years on each
    count to run concurrently. On appeal, Abernathy argues that there was insufficient evidence
    supporting the revocation and that the circuit court erred in denying his motion for a
    continuance. We affirm the revocation but remand for a corrected sentencing order.
    I. Facts
    Abernathy pleaded guilty to one count of possession of drug paraphernalia and one
    count of possession of a firearm by certain persons on November 18, 2019. Pursuant to the
    plea agreement, he was sentenced to eight years’ incarceration and six years’ SIS. On August
    28, 2023, the State filed a petition to revoke Abernathy’s SIS. In that petition, the State
    alleged that he had violated the terms of his SIS by possessing controlled substances.
    At the revocation hearing on the State’s petition, Abernathy’s appointed counsel first
    moved for a continuance so that Abernathy could retain private counsel. Abernathy had not
    realized until that morning the amount of jail time he was facing, and his father indicated
    that he was willing to hire Abernathy an attorney for the revocation. The State objected to
    the motion, arguing that it had provided Abernathy’s counsel with the plea offer (it was for
    forty years) twenty days ago, its witnesses were there, and the State was ready to proceed. The
    court denied the motion, and the hearing proceeded.
    The State’s first witness was Investigator Tad Huntsman with the Ashley County
    Sheriff’s Department. He testified that his department received a call from Abernathy’s
    grandmother, and he responded to the call. When Investigator Huntsman arrived at the
    grandmother’s house, she led him to a bedroom where Abernathy was passed out. In the
    bedroom, Huntsman found Abernathy, some of Abernathy’s belongings, ninety-eight grams
    of marijuana, and suboxone. There was no crime-lab evidence introduced that the substances
    found that day were, in fact, marijuana or suboxone. However, Huntsman testified that his
    identification of the substances was based on his seven years as a narcotics investigator and
    over one thousand hours of police training and experience. He testified that the marijuana
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    smelled like “green marijuana[,] that had not been smoked yet” and that the suboxone was
    in Abernathy’s wallet in an unopened package labeled “suboxone.” As the result of this
    testimony, the circuit court found that Abernathy had violated the terms of his SIS by
    possessing controlled substances.
    On appeal, Abernathy argues that the circuit court erred in revoking his SIS and
    denying his motion for a continuance.
    II. Sufficiency of the Evidence
    To revoke an SIS, the circuit court must find by a preponderance of the evidence that
    the defendant has inexcusably violated a condition of the probation or suspension. Springs v.
    State, 
    2017 Ark. App. 364
    , at 3, 
    525 S.W.3d 490
    , 492. The State’s burden of proof in a
    revocation proceeding is lower than that required to convict in a criminal trial, and evidence
    that is insufficient for a conviction may be sufficient for a revocation. 
    Id.
     The State does not
    have to prove every allegation in its petition, and proof of only one violation is sufficient to
    sustain a revocation. Mathis v. State, 
    2021 Ark. App. 49
    , at 3, 
    616 S.W.3d 274
    , 277. We will
    uphold the circuit court’s findings unless they are clearly against the preponderance of the
    evidence. 
    Id.
     Because the determination of a preponderance of the evidence turns on
    questions of credibility and weight to be given to the testimony, we defer to the circuit court’s
    superior position to do so. Burgess v. State, 
    2021 Ark. App. 54
    , at 6.
    Abernathy first argues that Investigator Huntsman’s testimony identifying the
    marijuana and suboxone is insufficient to prove that the substances in question were, in fact,
    marijuana and suboxone. He explains that there was an inadequate foundation concerning
    3
    what experience or training Huntsman had to identify controlled substances. However,
    Huntsman testified that he was a narcotics investigator and the circuit court credited
    Huntsman’s testimony. The State does not have to use chemical analysis to prove the identity
    of a controlled substance. Kellensworth v. State, 
    2021 Ark. 5
    , at 4, 
    614 S.W.3d 804
    , 807. Lay
    testimony may provide substantial evidence of the identity of a controlled substance, even in
    the absence of expert chemical analysis. 
    Id.
     Given the low burden of proof in a revocation
    proceeding, Huntsman’s experience as a narcotics investigator, and Huntsman’s testimony
    identifying the substances as marijuana and suboxone, we hold that the evidence is sufficient
    in a revocation setting to support the finding that Abernathy violated a condition of his SIS.
    III. Motion to Continue
    Abernathy next argues that the circuit court erred when it denied his motion for a
    continuance to obtain new counsel.
    A circuit court retains broad discretion to grant or deny a continuance for purposes
    of obtaining new counsel. Brewer v. State, 
    2017 Ark. App. 335
    , at 4, 
    525 S.W.3d 24
    , 26. Once
    competent counsel has been obtained, any request for a change in counsel must be balanced
    against the public’s interest in the prompt dispensation of justice. Raino v. State, 
    2021 Ark. App. 331
    , at 8. A circuit court’s denial of a continuance will not be overturned absent a
    showing of abuse of that discretion. Id. at 6. An abuse of discretion occurs only when the
    circuit court acts improvidently, thoughtlessly, or without due consideration. Brewer, 
    2017 Ark. App. 335
    , at 5, 525 S.W.3d at 27. And even if the circuit court abused its discretion,
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    an appellant must also demonstrate prejudice amounting to a denial of justice. Raino, 
    2021 Ark. App. 331
    , at 8.
    Here, Abernathy waited until after the start of the revocation hearing to move for a
    continuance. Last-minute continuances tread upon the rights of parties and the demands of
    a court’s calendar. Liggins v. State, 
    2015 Ark. App. 321
    , at 7, 
    463 S.W.3d 331
    , 336. Abernathy
    explains that the late motion is excusable because the matter had been pending only a short
    time. We are not persuaded that the two are related; a brief pending period does not
    inherently justify a last-minute request. Nor had Abernathy identified a counsel he wished
    to hire. When a defendant has not identified a counsel of choice, he is not manifestly
    deprived of that choice. Raino, 
    2021 Ark. App. 331
    , at 9.
    Abernathy explains his case is like Arroyo v. State, 
    2013 Ark. 244
    , 
    428 S.W.3d 464
    ,
    where our supreme court held that the circuit court erred in denying the continuance so that
    the appellant could retain a counsel of his choosing. The chief issue in Arroyo, however, was
    that the circuit court failed entirely to allow or inquire at all why the appellant did not want
    his current counsel representing him. Here, Abernathy’s trial counsel was allowed to fully
    explain the request for a continuance on the record. The circuit court heard the request,
    heard the response, and made a ruling. The circuit court did not abuse its discretion in
    denying the motion to continue.
    Abernathy was sentenced as a habitual offender under Arkansas Code Annotated
    section 5-4-501(a) (Supp. 2023). That subsection provides that the extended term of
    imprisonment for a defendant shall not exceed twelve years for a Class D felony and not less
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    than five nor more than thirty years for a Class B felony. At the revocation hearing, he was
    sentenced to fifteen years on both counts, to run concurrently. However, a fifteen-year
    sentence exceeds the maximum sentence for the Class D felony for possession of drug
    paraphernalia and is therefore illegal. We remand for the circuit court to correct the
    sentencing order.
    Affirmed; remanded to correct sentencing order.
    GRUBER and BARRETT, JJ., agree.
    Law Offices of John Wesley Hall, by: Samantha J. Carpenter, for appellant.
    Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.
    6
    

Document Info

Filed Date: 10/30/2024

Precedential Status: Precedential

Modified Date: 10/30/2024