Cite as 2017 Ark. App. 359
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-16-988
Opinion Delivered May 31, 2017
ANGELA R. PATTERSON APPEAL FROM THE POINSETT
COUNTY CIRCUIT COURT
APPELLANT [NO. 56CR-12-314]
V.
HONORABLE JOHN N. FOGLEMAN,
STATE OF ARKANSAS JUDGE
APPELLEE AFFIRMED
DAVID M. GLOVER, Judge
Appellant Angela Patterson appeals the Poinsett County Circuit Court’s revocation
of her probation, arguing that the sole condition for revocation was not expressly set out in
the terms of her probation. We affirm the revocation of her probation.
In October 2013, Patterson pleaded guilty to possession of drug paraphernalia, a Class
D felony, and was placed on two years’ probation. In February 2015, the State filed a
petition to revoke her probation, alleging Patterson had violated the terms of her probation
by testing positive for amphetamines on four occasions and marijuana on two occasions and
by admitting to using Soma on one occasion; by testing positive for alcohol on two
occasions; by failing to report for scheduled probation-office visits on four occasions; and
by failing to report for counseling on eight occasions. After a hearing on the petition to
revoke, the circuit court revoked Patterson’s probation specifically on her failure to report
for counseling assessment on February 11, 2015, and sentenced her to two years in a regional
Cite as 2017 Ark. App. 359
correction facility. Patterson appeals, arguing the circuit court erred in revoking her
probation on a condition not expressly set out in the written terms of her probation.
A trial court may revoke a defendant’s probation at any time prior to the expiration
of the period of probation if, by a preponderance of the evidence, it finds the defendant has
inexcusably failed to comply with a condition of his or her probation. Kidwell v. State, 2017
Ark. App. 4, 511 S.W.3d 341. The State has the burden of proving a condition of probation
has been violated; proof of only one violation must be shown to sustain a revocation. Baney
v. State, 2017 Ark. App. 20, 510 S.W.3d 799. The trial court’s findings are affirmed on
appellate review unless they are clearly against the preponderance of the evidence. Id. The
appellate courts defer to the trial court’s superior position to determine credibility and the
weight to be accorded testimony. Kidwell, supra.
Patterson argues on appeal, citing Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980),
that the probation condition on which the trial court revoked her probation was not in
writing and therefore cannot form the basis for revocation. Specifically, Patterson focuses
on the allegation in the State’s petition for revocation that states, “Condition #15 Program
Participation – Patterson failed to report for counseling/assessments on . . . 2/11/2015.”
Condition 15 in the written terms of Patterson’s probation states, “You must participate in,
and are obligated for the expense of, any community based programs (such as NA and AA)
deemed necessary by any supervising officer.” Patterson argues this condition does not
expressly state a single absence from a community-based program would equate to the
revocable action of failing to participate and therefore cannot form the basis for revocation.
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Cite as 2017 Ark. App. 359
Reviewing the written terms of Patterson’s probation, as well as the State’s allegation
in the petition for revocation, it is clear the State erroneously misnumbered the allegation
in which it alleged Patterson failed to report for counseling, as that term of probation is
contained in condition 14, which provides, “You must submit to, and are obligated for the
expense of, any non-residential rehabilitative, medical, counseling, or psychiatric program
deemed necessary by your supervising officer, for such period of time as may be
recommended by the treating institution or person.” At the revocation hearing, Michael
Jones, Patterson’s supervising probation officer, testified Patterson was scheduled to report
to drug counseling on February 11, 2015, but failed to do so. Patterson offered no reason
for missing the February 11 drug-counseling appointment, and it was considered an
unexcused absence. Officer Jones’s unrebutted testimony supports the trial court’s
revocation of Patterson’s probation based on the State’s allegation that she failed to submit
to counseling as mandated by the written terms of her probation requiring her to submit to
any counseling deemed necessary by her probation officer.
Affirmed.
ABRAMSON and GLADWIN, JJ., agree.
Benjamin W. Bristow, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
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