Payne v. State II

Cite as 2017 Ark. App. 265

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-16-1034

Opinion Delivered: April 26, 2017
MONTY JAMES PAYNE
APPELLANT APPEAL FROM THE BOONE
COUNTY CIRCUIT COURT
V. [NO. 05CR-13-106]

STATE OF ARKANSAS HONORABLE GORDON WEBB,
APPELLEE JUDGE
AFFIRMED AS MODIFIED

MIKE MURPHY, Judge

Monty Payne was serving a five-year suspended sentence stemming from a 2013

guilty plea to breaking or entering (a Class D felony) and theft of property (a Class A

misdemeanor) when a Boone County jury found him guilty of possession of

methamphetamine and drug paraphernalia. The circuit court revoked Payne’s suspension

on the basis of these convictions and sentenced him to six years’ imprisonment to run

concurrent with the terms of imprisonment announced in case no. 05CR-15-79. Payne

now appeals, arguing the revocation was in error because (1) there was insufficient evidence

to support the convictions and (2) the State had failed to prove that Payne had received the

written conditions of his suspended sentence. We affirm the sentences as modified.

To begin, we note that this is a companion case to Payne v. State, 2017 Ark. App.

264, also handed down today. The background, facts, and procedural history are set out in

detail in that opinion and do not bear repeating here. In that appeal, as in this one, Payne
Cite as 2017 Ark. App. 265

first challenges the sufficiency of the evidence to support his possession convictions. Because

the revocation of Payne’s suspended sentence was based on those possession convictions, it

stands to reason that if there was not enough evidence to support those convictions, there

is not enough evidence to support the revocation.

The standard of review for a challenge to the sufficiency of the evidence on appeal

is different for convictions and revocations. To support a conviction, we review the

evidence most favorable to the State for substantial evidence. Perez v. State, 2016 Ark. App.

291, 494 S.W.3d 431. In revocation proceedings, however, we look to see only if the trial

court’s decision to revoke is supported by a preponderance of the evidence. Stinnett v. State,

63 Ark. App. 72, 973 S.W.2d 826 (1998). Evidence is substantial if it is of sufficient force

and character that it will, with reasonable certainty, compel a conclusion one way or the

other without resorting to speculation or conjecture. Perez, supra. On the other hand, a

preponderance of the evidence is evidence which, when weighed with that opposed to it,

has more convincing force and is more probably true and accurate. Meador v. State, 10 Ark.

App. 325, 664 S.W.2d 878 (1984). Thus, evidence that may not be sufficient to convict can

be sufficient to revoke, due to the State’s lower burden of proof. Bradley v. State, 347 Ark.

518, 521, 65 S.W.3d 874, 876 (2002).

In Payne v. State, 2017 Ark. App. 264, we reviewed the challenge to the sufficiency

of the evidence using the higher standard and held it sufficient to support the convictions.

For the reasons set out in CV-16-948, we affirm the circuit court’s order on Payne’s first

point.

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Cite as 2017 Ark. App. 265

Payne next argues that, because there was no proof introduced at the revocation

hearing that he had ever been supplied with written conditions of his suspended sentence,

the court had no authority to revoke his suspension. He cites Ross v. State, where our

supreme court reversed a revocation of a suspended sentence when there was no evidence

introduced at the revocation hearing that the appellant, who had committed a crime, had

violated a written condition of his suspended sentence. 268 Ark. 189, 594 S.W.2d 852

(1980). We are unable to reach this point, however, because Payne did not preserve it for

our review. The State correctly notes that this argument was not presented to the trial court,

and we are consequently unable to consider it for the first time on appeal. See, e.g., Whitener

v. State, 96 Ark. App. 354, 241 S.W.3d 779 (2006).

Finally, we note that, while it was not argued to this court, the circuit court’s April

12, 2016 order is illegal on its face regarding the misdemeanor. The issue of an illegal

sentence is an issue of subject-matter jurisdiction that this court may raise sua sponte, even

if not raised on appeal and not objected to in the circuit court. Harness v. State, 352 Ark.

335, 101 S.W.3d 235 (2003); Wright v. State, 92 Ark. App. 369, 214 S.W.3d 280 (2005).

Arkansas Code Annotated section 16-93-308(d) provides that

[i]f a court finds by a preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of his or her suspension or probation,
the court may revoke the suspension or probation at any time prior to the expiration
of the period of suspension or probation.

Payne’s October 2013 sentencing order provided that he serve 60 months’ suspended

imposition of sentence for the felony charge and 12 months’ suspended imposition of

sentence for the misdemeanor. The sentences were to run concurrently; thus, the twelve-

month sentence for the misdemeanor was completed before the State even filed its first

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Cite as 2017 Ark. App. 265

petition to revoke Payne’s suspended sentence in December 2014. Consequently, the

revocation of probation for the misdemeanor resulted in an illegal sentence.

The judgment is modified to delete the revocation and sentence for misdemeanor

theft of property.

Affirmed as modified.

ABRAMSON and HIXSON, JJ., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.

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