dissenting.
I disagree with the majority’s analysis in this felony nonsupport probation revocation matter resulting in a 5-4 decision. The case turns on one’s interpretation of the sufficiency of proof to shift the burden of going forward. See Reese v. State, 26 Ark.App. 42, 759 S.W.2d 576 (1988); Brown v. State, 10 Ark.App. 387, 664 S.W.2d 507 (1984).
In an even-handed manner the majority opinion lays out the statutory provisions for general revocation (inexcusable failure) and restitution-specific revocation (good-faith effort). The opinion then fairly and accurately identifies and applies those controlling decisions of this court and our supreme court.
Legal principles have been developed over time that govern all probation revocation hearings. The burden of proof for the State is a preponderance of the evidence. Stinnett v. State, 63 Ark.App. 72, 973 S.W.2d 826 (1998). The Arkansas Rules of Evidence are not strictly applied in revocation hearings. Tipton v. State, 47 Ark.App. 187, 887 S.W.2d 540 (1994). The State need only prove one violation to sustain revocation. See Brock v. State, 70 ArkApp. 107, 14 S.W.3d 908 (2000). Our appellate courts defer to the superior position of the trial court on questions of credibility and the weight to be given the evidence. Gossett v. State, 87 ArkApp. 317, 191 S.W.3d 548 (2004). This court will not reverse the trial court’s decision to revoke probation unless it is clearly |, i against the preponderance of the evidence. Stinnett, supra.
The trial judge knew a great deal more about Russell Hanna, the probationer, than what was revealed at the revocation hearing:
1. The Conviction
Hanna had a child out of wedlock in 1994; his failure to support began in 1996; his non-support continued eight years until 2004; in 2003 a Class C felony non-support information was filed; in 2003, Hanna filed an affidavit of indigency stating that he was single, he lived with Amanda Dixon, with whom he had two additional younger children, and his employer was “Razorback”; in 2004 Hanna pleaded nolo contendere to the Class C felony offense of non-support because he was in arrears on his child-support obligation in the sum of $19,882; Hanna was given a break — he was not sentenced to prison for this felony, rather he was sentenced to ten years’ supervised probation; one condition of probation was that he make restitution of the child-support arrearage in monthly installments of $163 in addition to paying his current support obligation of $53 per week.
2. The State’s First Revocation Petition
The State filed a petition to revoke Hanna’s probation in 2004; in 2006 Hanna posted a $2500 bond and completed an affidavit of indigency in which he stated Dixon was now his wife, they still had two children who lived in the home with them, and he was not employed at that time; Hanna engaged an attorney who entered his appearance on September 7, 2006, and requested a continuance the same day; in May 2007, Hanna caught another break when an order was entered dismissing the petition for revocation at the request of the probation officer; in June 2007, Hanna made a $300 payment.
3. The State’s Second Revocation Petition
On May 16, 2008, the State filed another petition to revoke Hanna’s probation, alleging delinquency in the payment of his restitution; in June 2008, Hanna posted a $2500 bond; as of August 2008, he was in arrears on his child-support obligation in the amount of $31,999.70. At the revocation hearing, Hanna’s probation officer stated he was aware that Hanna was disabled. Hanna testified he was disabled when he pleaded guilty in 2004; that he knew then he was going to have to pay restitution; and that he agreed to that condition when he was placed on probation. Hanna acknowledged | ^nothing had changed from 2007 to 2008, and that his wife helped him to make the $300 payment in 2007. He said he could not live up to his obligations because he was unable to work. Hanna was represented by counsel at the revocation hearing.
What a probationer must do when the burden of going forward passes to him is not a new concept. Our court, in Brown, supra, a revocation case not involving nonsupport, offered instruction to all probationers:
In the instant case, appellant was represented by counsel and little, if any, explanation was provided by appellant for his failure to pay restitution. In such proceedings where the probationer is represented by counsel, we do not believe the probationer can sit back and rely totally upon the trial court to make inquiry into his excuses for non-payment. The defendant should go forward with whatever evidence he has in an attempt to establish excusable reasons why he did not pay the fine or restitution.
Brown, 10 Ark.App. at 389, 664 S.W.2d at 508.
Likewise, our court again echoed this sentiment toward “burden shifting” in Reese, supra, as follows:
The burden of proof does not shift. However, once the State has introduced evidence of non-payment, the burden of going forward does shift to the defendant to offer some reasonable excuse for his failure to pay. To hold otherwise would place a burden upon the State which it could never meet — it would require the State, as part of its case in chief, to negate any possible excuses for non-payment.
Reese, 26 Ark.App. at 44, 759 S.W.2d at 577 (citations omitted); see also Thompson v. State, 2009 Ark.App. 620, 2009 WL 3153210.
Our appellate courts in more recent cases have even offered proof sources for nonsupport probationers. A probationer may avoid the determination that his failure is willful if he shows bona fide efforts to seek employment or to borrow money to pay restitution. Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997); Gossett, supra.
|,aThe record is telling about this probationer for appellate review purposes. It shows Hanna had some means of financial ability, but he failed to pay. The record also shows that Hanna had the ability to work; but, when asked, he asserted his inability. In separate affidavits of indigen-cy, Hanna declared he was employed in 2004 and unemployed in 2006. Facing successive petitions to revoke, in 2006 and again in 2008, he posted separate $2500 bonds. See Gossett, supra (evidence of ability to secure money for release from jail following arrest is factor to be considered in failure to pay restitution). Following the dismissal by the State in 2007 of the 2004 revocation petition and, thereby dodging imprisonment for the second time, Hanna immediately showed the ability to pay $300. At his revocation hearing, he attributed help with the $300 payment to his wife. Further, with counsel present at his revocation hearing, he did not conform his proof to the Jordan/Gossett standard by showing bona fide efforts to seek employment or to borrow money. The record implies that doing either obviously was not a priority for him. Instead, as in Brown, supra, he “[sat] back.” On direct examination, he merely offered his opinion of his inability to work. When cross-examined by the State, he was clearly evasive, again asserting that he was “just not able to work.” His statement of opinion, without more, is simply not an explanation as to why he was unable to pay his child-support payments. It is plausible that the judge did not believe Hanna’s assertions. I find it compelling that the record reflects no attempt by Hanna to have the amount of his child support reduced due to a change in his circumstances.
The revocation hearing began with the testimony of Hanna’s probation officer and | ]4then quickly turned to the testimony of Hanna himself, they being the only witnesses. The hearing was indeed short! Just as the State presented a weak case, Hanna equaled the effort. But because of the case history, which could be supplemented by the State’s proof, the State did enough.
This brings us squarely to the issue that separates five members from four members on this court when deciding the disposition of this case. The majority concludes Hanna did enough (showed up) and said enough (“I’m disabled”). On this premise, the majority interprets our case law that Hanna, through his magic words, shifted the burden back to the State. I think not. “I’m disabled,” in my view, is Hanna’s opinion, nothing more. Historically, it was the same disabled person who pleaded nolo contendere to Class C felony nonsupport in 2004; and the same disabled person who increased his criminal-debt responsibility of $19,382 in 2004 to $31,999 in 2008 — a $12,600 increase after he had received breaks both in 2004 and 2007 with no imprisonment. The State met its burden of going forward, and that burden shifted to Hanna when the State showed he made one support/restitution payment in 2007 and there existed a $31,999 arrearage in 2008. In my view, Hanna failed to meet his shifting burden.
By its analysis, the majority has eviscerated any responsibility accorded our circuit courts for judging credibility and determining the weight to be afforded witness testimony, an established legal principle governing revocation proceedings.
Here, the trial court knew the long history of Hanna’s noncompliance when it [ ^considered the short hearing record made by the parties. By his own admission, Hanna acknowledged there was no change in his circumstances since he had been placed on probation and agreed to the restitution payment schedule. He had promised to pay then. His word is important. People actually depended on it; there was reliance on his word. Hanna, however, had obviously done nothing, ever; and it was thereby no accident he was again facing revocation with his own attorney by his side in 2008. The majority will agree that he completely and totally abdicated even the barest effort to be a responsible parent. Why did he? I contend that it was a deliberate choice. But, again, the case does not turn on either of these observations. Because they are true, however, these observations do take away any argument Hanna could otherwise have made as a reasonable excuse for his failure to pay. From my review of the record, I cannot classify his failure as excusable or reasonable.
The majority rests on its conclusory statement, “The State’s proof had confirmed his disability.” Hanna’s “disability,” though, was not a new or different factor at the hearing. It was an historical constant in this case. Hanna testified he had become disabled in 1994, which happens to be the birth year of his oldest child, whom he quit supporting in 1996, leading to his exposure to the criminal-justice system in 2003.
There is an SSI reference woven into the majority’s opinion. Hanna testified at the hearing he was drawing SSI disability benefits. For reasons later stated, he apparently had just begun to receive his SSI stipend. For our purposes, in considering this appeal, it does not matter that the majority is willing to concede the availability of the $687 monthly SSI benefit | lfiHanna is now receiving “since his argument on this point at the sentencing hearing was abandoned on appeal.” The record does not reflect when Hanna qualified for SSI, which is not income for child-support purposes. From the sentencing hearing (which is not a part of the liability determination), we know the State at that time had begun the process of closing its file on Hanna in compliance with federal policy protecting SSI recipients. I therefore conclude Hanna was appropriately charged and later arrested, at which time he bonded his release for appearance at the revocation hearing to address his pre-SSI nonsupport liability. It is not known when he qualified for SSI benefits, but the matter of SSI was first put in the record at the revocation hearing.
I dissent because I am left with the definite and firm conviction that the circuit court did not err. 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, the State sufficiently met its burden of proof to revoke Hanna’s probation. The trial court found that the State had met its burden of proof and ordered revocation of Hanna’s probation, and I would affirm that revocation.
I am authorized to state that Judges PITTMAN, GLADWIN, and HENRY join in this dissent.