Shawn C. Sivils v. State of Arkansas

Cite as 2021 Ark. App. 198
ARKANSAS COURT OF APPEALS
Elizabeth Perry
I attest to the accuracy and DIVISION III
integrity of this document No. CR-20-552
2023.06.26 15:52:13 -05'00'
2023.001.20174 Opinion Delivered April 28, 2021
SHAWN C. SIVILS
APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT
[NO. 28CR-18-1425]
V.
HONORABLE CHARLES E.
CLAWSON III, JUDGE
STATE OF ARKANSAS
AFFIRMED
APPELLEE

LARRY D. VAUGHT, Judge

Shawn Sivils appeals the Faulkner County Circuit Court’s revocation of his probation.

We affirm.

On January 3, 2020, Sivils pled guilty to aggravated assault of a family or household

member and terroristic threatening in case No. 23CR-18-1425, and he pled guilty to impairing

operation of vital public facility in case No. 23CR-18-1467. He was sentenced to seventy-two

months’ probation for each of the three offenses. Pursuant to the negotiated plea agreements

in the two cases, the State nolle prossed several other charges against Sivils. At the guilty-plea

hearing, Sivils indicated that he understood that the terms of his probationary sentences

required him to complete the Jumpstart Ministries program and comply with all other

conditions of probation in both cases. He also confirmed that he understood that the failure
to comply with any of the conditions of his probation could result in his being sentenced to

the maximum penalty in both cases.

On May 22, 2020, the State filed a petition to revoke Sivils’s probation in both cases,

alleging that he failed to complete the Jumpstart Ministries program and that he tested positive

for THC. At the revocation hearing, W.J. Tobias, a probation officer with the Arkansas

Department of Community Corrections, testified that on or about May 14, 2020, Sivils tested

positive for THC. The office coordinator for Jumpstart Ministries, Chris Parris, testified that

Sivils was dismissed on April 1, 2020, for “medical purposes,” before he completed the

program. Parris stated that Jumpstart Ministries had attempted to get Sivils admitted to a group

living facility where he could get treatment for mental-health and behavioral problems.

Sivils moved to dismiss the petition for revocation, arguing that there was no evidence

that he had left Jumpstart Ministries voluntarily. The court, speaking from the bench, verbally

indicated that Parris had testified to that fact and asserted that Jumpstart Ministries had found

or was looking for another facility to which Sivils could be sent, and “he left,” meaning he quit

the program voluntarily. Defense counsel argued that there had been no testimony to that

effect, and the court responded, “I know what my notes say and what I heard.”

The court then found that Sivils had willfully violated the terms and conditions of his

probation, and it revoked his probation. In a colloquy with defense counsel prior to

sentencing, the court acknowledged that Sivils was mentally impaired due to a brain injury.

The court also expressed the desire to be able to send Sivils to a facility like the state hospital

for inpatient psychiatric treatment but noted that such an option was not available and that

“they have mental health facilities in the penitentiary.”

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The court then sentenced Sivils to ten years in the Arkansas Department of Correction

(ADC) in case No. 23CR-18-1467, in which he pled guilty to impairing the operation of a vital

public facility, a Class C felony. It also sentenced him to six years in the ADC on each of the

Class D felonies to which he pled guilty in case No. 23CR-18-1425, to run concurrently. This

appeal follows.

A circuit court may revoke a defendant’s probation at any time prior to its expiration

if the “court finds by a preponderance of the evidence that the defendant has inexcusably

failed to comply with a condition of his or her . . . probation.” Ark. Code Ann. § 16-93-308(d)

(Supp. 2019). A preponderance of the evidence is convincing evidence that is more probably

accurate and true when weighed against the evidence opposed to it. Payne v. State, 2017 Ark.

App. 265, at 2, 520 S.W.3d 699, 701. The State has the burden of proving that the defendant

violated a condition of probation; however, it is only required to establish one violation to

sustain the revocation. Baney v. State, 2017 Ark. App. 20, at 2, 510 S.W.3d 799, 801.

Once the State introduces evidence of noncompliance, the defendant bears the burden

of presenting a reasonable excuse for violating the conditions of probation. Scroggins v. State,

2019 Ark. App. 346, at 4, 582 S.W.3d 853, 856. Whether a good-faith effort has been made to

fulfill a condition of a probationary sentence is a question of fact to be determined by the

circuit court. Ramsey v. State, 60 Ark. App. 206, 210–11, 959 S.W.2d 765, 768 (1998). We will

not reverse the circuit court’s findings unless they are clearly against the preponderance of the

evidence. Springs v. State, 2017 Ark. App. 364, at 3, 525 S.W.3d 490, 492–93. Evidence that

would not support a criminal conviction in the first instance may be enough to revoke

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probation or a suspended sentence. Id. Determining whether a preponderance of the evidence

exists turns on questions of credibility and weight to be given to the testimony. Id.

Sivils’s first point on appeal is that the State failed to prove that he voluntarily left the

Jumpstart Ministries program or that his probation officer ordered him to submit to any other

program. 1 He correctly asserts that the only evidence presented at trial was that Jumpstart

Ministries dismissed him from the program for “medical purposes.” There was no testimony

that Sivils left on his own or that he was ever ordered to report to any other program or facility

and refused to do so.

The State argues that because completing the program was a requirement of Sivils’s

probation, he violated that condition when he was dismissed from the program, regardless of

the reason. It notes that because it demonstrated a violation, the burden shifted to Sivils to

prove that the violation was excusable. Scroggins, 2019 Ark. App. 346, at 4, 582 S.W.3d at 856.

The State argues that because Sivils failed to testify or present any evidence as to why he could

not complete the program, he failed to carry the burden of proving that his violation was

excusable. The State also contends that this case is akin to Ross v. State, 22 Ark. App. 232, 234–

35, 738 S.W.2d 112, 113 (1987), in which we affirmed the revocation of Ross’s probation

despite his argument that his alcoholism prevented him from completing a program required

as a condition of his probation.

1Sivils also asserts that the State failed to produce a written order requiring him to

complete the Jumpstart Ministries program. However, he does not dispute the fact that the
conditions of probation required him to “submit to . . . any rehabilitative, medical, counseling,
or psychiatric program deemed necessary by the Probation Office for such period of time as
may be recommended by the treating agency,” and at trial, he never contended that he had
not been required to complete Jumpstart Ministries. This argument is both unpreserved and
undeveloped on appeal.

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We agree with Sivils on this point. The State failed to demonstrate a violation sufficient

to shift the burden to Sivils to provide evidence that his failure to complete the Jumpstart

Ministries program was excusable. Here, the only evidence was his dismissal from Jumpstart

Ministries based on the program’s decision that it could not accommodate his mental-health

needs. The State presented no evidence indicating that Sivils ever refused to attend or

participate in any program. Therefore, the court’s insistence that he left the program

voluntarily was clearly against the preponderance of the evidence.

However, the court also found that Sivils violated the terms and conditions of his

probation by using illegal drugs, and the State need only show that the defendant committed

one violation in order to sustain a revocation. Stewart v. State, 2018 Ark. App. 306, at 3, 550

S.W.3d 916, 917. There was testimony that Sivils tested positive for THC while on probation.

On appeal, Sivils now argues that (1) the test did not prove that he actually used the drug, and

(2) the test did not prove that his use of the drug was illegal. He claims that the positive test

result could have been due to legal ingestion of a drug versus legal ingestion of a cannabis-

containing product. This argument has no merit. As discussed above, once the State proved a

violation, which it did here by presenting evidence of a positive drug test, the burden shifted

to Sivils to demonstrate that the violation was excusable. He had the opportunity to present

evidence at trial to support the claims he now makes on appeal, but he failed to do so.

Affirmed.

KLAPPENBACH and WHITEAKER, JJ., agree.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.

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