Phillips v. State

Cite as 2017 Ark. App. 320
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-16-670
DALANA RENEE PHILLIPS Opinion Delivered May 17, 2017
APPELLANT
APPEAL FROM THE CRAWFORD
COUNTY CIRCUIT COURT
V. [NO. 17CR-12-318, 17CR-13-138]
HONORABLE GARY COTTRELL,
JUDGE
STATE OF ARKANSAS
APPELLEE REVERSED AND REMANDED
PHILLIP T. WHITEAKER, Judge
Appellant Dalana Phillips challenges the sentencing order of the Crawford County
Circuit Court that revoked her probation, sentenced her to the Arkansas Department of
Correction, and ordered her to pay restitution. Her sole argument on appeal is that the
circuit court erred in ordering restitution following her revocation, and the State concedes
error on this point. We reverse and remand.
The procedural history of this matter is straightforward. In 2013, Phillips entered a
guilty plea to one count of commercial burglary (Count I), one count of theft of property
(Count II), one count of theft by receiving (Count III), and one count of possession of drug
paraphernalia (Count IV). She was sentenced to thirty-six months’ probation. Her conditions
of probation included the terms that she must not commit a criminal offense punishable by
imprisonment and that she pay fines, fees, and court costs.
Cite as 2017 Ark. App. 320
Later in 2013, the State petitioned to revoke Phillips’s probation. Phillips pleaded
guilty to the petition and was sentenced to two years in a regional correctional facility (RCF)
plus ten years’ suspended imposition of sentence (SIS) on Count I, a concurrent two-year
RCF sentence plus eight years’ SIS on Count II, and concurrent six years’ SIS on Counts III
and IV. Phillips was released from RCF in October 2015.
In January 2016, the State filed another petition to revoke, alleging that Phillips had
passed a forged check at Wal-Mart and had failed since August 2015 to make payments
toward the fines, fees, and court costs that had been ordered as part of her original probation.
The circuit court found that the State had proved by a preponderance of the evidence that
Phillips had violated the terms and conditions of her SIS by forging and passing the check
and by failing to keep up with her court-ordered payments. The court therefore revoked
Phillips’s SIS and sentenced her to a term of years in the Arkansas Department of Correction,
followed by another period of SIS.1
In addition to the prison sentence, however, the circuit court also ordered Phillips to
pay $447.11 in restitution within ninety days of her release from prison.2 Phillips objected
to the order of restitution, but the court nonetheless included restitution as part of her
sentence. Phillips filed a timely notice of appeal, and she now argues that the circuit court
erred in ordering her to pay restitution based on the forged check. We agree.
1
Phillips does not challenge the sufficiency of the evidence supporting the revocation
itself.
2
The amount of restitution was based on the value of the check passed at Wal-Mart.
2
Cite as 2017 Ark. App. 320
In the instant case, the circuit court’s finding by a preponderance of the evidence that
Phillips had passed the forged check was sufficient to revoke her SIS. See, e.g., Daffron v.
State, 2016 Ark. App. 485, 505 S.W.3d 209 (standard of review for revoking SIS). The court
erred, however, in sentencing her to pay restitution. Arkansas Code Annotated section 5-4-
205(a)(1) provides that “[a] defendant who is found guilty or who enters a plea of guilty or
nolo contendere to an offense may be ordered to pay restitution.” Restitution is thus, by
statute, connected with an adjudication of guilt. This makes sense because the goal of
restitution is to make a victim whole with respect to the financial injury suffered as a result
of the crime committed. This court has held that it is error for a court to order a defendant
to pay restitution for offenses with which he or she has not been charged or to which he or
she did not plead guilty or no contest. Bogard v. State, 2014 Ark. App. 700, 450 S.W.3d 690;
Simmons v. State, 90 Ark. App. 273, 205 S.W.3d 194 (2005); Fortson v. State, 66 Ark. App.
225, 989 S.W.2d 553 (1999). In Simmons, we reversed a restitution order, noting that “even
a preponderance standard does not allow the State . . . to allege that the victim is entitled to
recover based on additional conduct [with] which the defendant has not been charged. If the
State believes that it can prove appellant stole the additional items, it must first obtain a
conviction related to those charges, and then seek restitution based on that conviction.” Simmons, 90
Ark. App. at 279, 205 S.W.3d at 198 (emphasis added).
In Arkansas, sentencing is entirely a matter of statute. Valencia v. State, 2016 Ark. App.
176 (citing Walden v. State, 2014 Ark. 193, 433 S.W.3d 864). Sentencing may not be other
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Cite as 2017 Ark. App. 320
than in accordance with the statute in effect at the time of the commission of the crime.
Heard v. State, 2014 Ark. App. 674. When the law does not authorize the particular sentence
pronounced by the trial court, that sentence is unauthorized and illegal, and the case must
be reversed and remanded. Id. Here, the sentence of restitution was not authorized. The
circuit court therefore erred in ordering Phillips to pay restitution. As noted above, the State
concedes error in this case. We therefore reverse the circuit court’s order of restitution and
remand for entry of a sentencing order consistent with this opinion.
Reversed and remanded.
VIRDEN and MURPHY, JJ., agree.
Lisa-Marie Norris, for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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