Cite as 2014 Ark. App. 52
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-837
QUINCEL McGUIRE Opinion Delivered January 22, 2014
APPELLANT
APPEAL FROM THE CRAIGHEAD
V. COUNTY CIRCUIT COURT
[NO. CR-2010-508]
STATE OF ARKANSAS HONORABLE BRENT DAVIS,
APPELLEE JUDGE
AFFIRMED
ROBIN F. WYNNE, Judge
Quincel McGuire appeals from the revocation of his probation, challenging the
sufficiency of the evidence supporting the trial court’s finding that he willfully failed to make
payments as directed. We find no error and affirm.
On May 5, 2011, appellant pled guilty to two counts of delivery of a controlled
substance (cocaine). The circuit court sentenced him to five years’ probation and a fine,
costs, and fees totaling $1381, to be paid in monthly installments of $50; he was also ordered
to pay a supervision fee of $25 a month. On March 2, 2012, the State filed a petition for
revocation alleging that appellant had violated the conditions of his probation by failing to
report to his probation officer as directed; moving without notifying his probation officer of
the new address; failing to pay his fine and court costs as directed; and failing to pay
supervision fees as directed. Appellant pled guilty to this revocation petition and in April
Cite as 2014 Ark. App. 52
2012 was sentenced to five years’ probation, forty-seven days in the county jail with credit
for time served, costs previously assessed to remain in effect and payable at the same rate, and
a $35 a month supervision fee.
On December 7, 2012, the State filed another petition for revocation, alleging failure
to pay fines and costs as directed, failure to pay monthly probation fees as directed, and failure
to maintain employment. The revocation hearing was continued twice, and the probation-
supervision fees that appellant had been ordered to pay were waived by an order entered on
February 14, 2013. At the revocation hearing on July 1, 2013, the chief deputy of the
Craighead County Sheriff’s Department testified that appellant had made no payments and
had a total balance of $1381 in this case. Appellant then testified on his own behalf. He
stated that he had been unemployed since July 2012, when he worked as a cook at
McDonald’s for “a couple of weeks.” His employment ended when he moved back to
Marked Tree, Arkansas, because his mother was sick and needed care. He lived with his
mother, had no money in the bank, and did not own a vehicle or have a driver’s license. He
testified that he had looked for work through an employment agency but was rejected
because of his criminal record. He stated that he relied on his mother for food and shelter
and received no government assistance. Appellant further testified that he had spent almost
200 days in the last year in the Craighead County jail for misdemeanor fines.
The circuit court found that appellant had willfully failed to make payments, noting
that appellant was capable of working and the lack of evidence that he had made any effort
to make any payments. Upon revocation, appellant was sentenced to five years’ probation,
conditioned in part on serving 120 days in the county jail, completing 180 hours of
2
Cite as 2014 Ark. App. 52
community service within three months of release from county jail, and making $50
payments per month, beginning 90 days after completing community service, on the fine and
costs previously assessed. This timely appeal followed.
In order to revoke probation or a suspended imposition of sentence, the trial court
must find by a preponderance of the evidence that the defendant inexcusably violated a
condition of the suspension or probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2011). On
appellate review, the circuit court’s findings will be upheld unless they are clearly against the
preponderance of the evidence. Williams v. State, 2013 Ark. App. 592, at 1. Where the
alleged violation involves the failure to pay ordered amounts, after the State has introduced
evidence of nonpayment, the burden shifts to the probationer to provide a reasonable excuse
for the failure to pay. Sanders v. State, 2012 Ark. App. 697, at 2–3. It is the probationer’s
obligation to justify his failure to pay, and this shifting of the burden of production provides
an opportunity to explain the reasons for nonpayment. Id. Despite the shifting of the burden
of production, the State shoulders the ultimate burden of proving that the defendant’s failure
to pay was inexcusable. Scroggins v. State, 2012 Ark. App. 87, at 9, 389 S.W.3d 40, 45.
On appeal, appellant argues that the State failed to prove by a preponderance of the
evidence that he inexcusably failed to pay or find employment. He points to his testimony
that he did not have the ability to pay because he could not find a job. He also points to the
waiver of his probation supervision fee and the finding of indigence that led to a public
defender being appointed to represent him. He cites Ark. Code Ann. § 5-4-205(f), which
concerns restitution and provides:
3
Cite as 2014 Ark. App. 52
(f)(1) If the defendant is placed on probation or any form of conditional release, any
restitution ordered under this section is a condition of the suspended imposition of
sentence, probation, parole, or transfer.
(2) The court may revoke probation and any agency establishing a condition of release
may revoke the conditional release if the defendant fails to comply with the order and
if the defendant has not made a good faith effort to comply with the order.
(3) In determining whether to revoke probation or conditional release, the court or
releasing authority shall consider:
(A) The defendant’s employment status;
(B) The defendant’s earning ability;
(C) The defendant’s financial resources;
(D) The willfulness of the defendant’s failure to pay; and
(E) Any other special circumstances that may have a bearing on the defendant’s ability
to pay.
Because appellant was not ordered to pay restitution, this statute is not strictly applicable.
Nonetheless, these are the factors that the trial court appears to have considered. Here,
appellant was admittedly capable of working and the trial court simply did not believe that he
was making a sufficient effort to make payments. When considering the lower burden of
proof in revocation proceedings and giving the proper deference to the superior position of
the trial court to determine questions of credibility and the weight to be given the evidence,
we hold that the court did not clearly err in finding that appellant wilfully violated the
condition of his probation requiring him to make payments as directed.
Affirmed.
HARRISON and GLOVER, JJ., agree.
Paul J. Teufel, for appellant.
Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellee.
4