                                 Cite as 2014 Ark. App. 680

                   ARKANSAS COURT OF APPEALS
                                       DIVISION III
                                      No. CR-14-446


                                                   Opinion Delivered   December 3, 2014

  SAMMIE WAYNE HUTCHINSON      APPEAL FROM THE CRAWFORD
                    APPELLANT COUNTY CIRCUIT COURT
                               [NO. 17CR-00-8]
  V.
                               HONORABLE GARY COTTRELL,
  STATE OF ARKANSAS            JUDGE
                      APPELLEE
                               AFFIRMED


                           BRANDON J. HARRISON, Judge

       Sammie Hutchinson appeals the Crawford County Circuit Court’s finding that he

violated the conditions of his suspended sentence. He argues that the State failed to prove

that his failure to pay restitution was willful. We affirm.

       In May 2001, Hutchinson pled no contest to an arson charge and was sentenced to

twenty years’ imprisonment with thirteen years suspended. He was also ordered to pay

$52,782.12 in restitution at the rate of $100 per month upon his release from the Arkansas

Department of Correction.         In June 2004, the State filed a petition to revoke

Hutchinson’s suspended sentence based upon his failure to make restitution payments as

ordered. An agreed order was entered in November 2004 that amended the petition to

revoke to a petition for contempt and ordered Hutchinson to pay $150 per month toward

his restitution.




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        In August 2012, the State filed another petition to revoke alleging nonpayment of

restitution. The court held a hearing in February 2014, at which Janice Gilbreth, an

employee of the Crawford County Prosecuting Attorney’s Office who maintains records

for payment ledgers, testified that Hutchinson began making payments in May 2002, but

the last payment from him was received on June 3, 2011. She explained that Hutchinson

made “somewhat” regular payments in 2010, but there were missed payments in January,

March, April, July, and September. She also testified to “pretty regular” payments in

2009.    She stated that Hutchinson still owes $43,498.12 in restitution.        On cross-

examination, Gilbreth acknowledged that Hutchinson made some full and some partial

payments from 2002 to 2008, and she agreed that, despite some missed payments,

Hutchinson seemed to be “pretty close” to making consistent $150 payments.

        Hutchinson testified that he was currently living with his mother in Spiro,

Oklahoma. He said that he was released on parole in May 2002 and began making

restitution payments shortly after that. He explained that, since 2010, he has suffered from

certain medical conditions—namely, aneurysms in his head and vascular neurosis in his

hip, which render him unable to work. He acknowledged, however, that he filed for

disability in Iowa “around the end of 2010, first of 2011” and was denied. He introduced

a letter dated February 6, 2014, from Linda Hoffman, an APRN in Oklahoma, stating that

he was “unable to work until medical issues are resolved.” He testified that he had not

attempted to get a loan to pay off his restitution because he has no credit. He also stated

that he was currently seeking social-security-disability benefits, but it would be six to

eighteen months before that was resolved. Finally, he testified that he sold some real

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property in 2013 for $42,500 but that after paying medical bills, taxes, and liens, he only

had “[$]10 or 11,000” to go toward restitution, and $6,000 of that went toward moving

expenses.

       On cross-examination, Hutchinson acknowledged that he had missed payments in

2008 and 2009, before any medical problems arose. He also acknowledged that he had

been cleared to return to full-time light-duty work in November 2011. He admitted that

he started using THC and methamphetamine after his medical problems arose and that he

reported this addiction to his physicians. He also claimed that there was a missing form

from the Mayo Clinic that stated that he was permanently disabled.

       In its oral ruling, the court found it surprising that Hutchinson’s physicians had not

noted any malingering and opined that Hutchinson had “quit trying” after his diagnosis of

aneurysms in 2010.          The court also expressed concern over               Hutchinson’s

methamphetamine use and stated that he “had $11,000 remaining in [his] pocket after [he]

sold [his] house, and none of it went to this restitution. That’s really disturbing. But you

chose to use it, $6,000, to go to New Mexico, and the other five was unexplained.” The

court found that Hutchinson had willfully violated the terms and conditions of his

suspended sentence and sentenced him to 30 months’ imprisonment and 126 months’

suspended imposition of sentence. This appeal followed.

       A suspended sentence may be revoked when a circuit court finds by a

preponderance of the evidence that the defendant has inexcusably failed to comply with a

condition of suspension.     Jackson v. State, 2011 Ark. App. 125.       Where the alleged

violation is a failure to make payments as ordered, it is the State’s burden to prove that the

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failure to pay was inexcusable; once the State has introduced evidence of nonpayment, the

burden of going forward shifts to the defendant to offer some reasonable excuse for failing

to pay. Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988). Factors to be considered

in determining whether to revoke a probation or suspension for failure to pay include the

defendant’s employment status, earning ability, and financial resources; the willfulness of

the defendant’s failure to pay; and other special circumstances. Ark. Code Ann. § 5-4-

205(f)(3) (Supp. 2011). We will not reverse a revocation unless the decision is clearly

against the preponderance of the evidence. Fellows v. State, 2014 Ark. App. 85.

       On appeal, Hutchinson argues that his failure to pay was not willful, so the court

erred in revoking his suspended sentence. He contends that he offered “ample evidence”

as to why he failed to make restitution payments and that the State never refuted his

testimony. He also asserts that the State failed to present (1) any evidence that his efforts

to pay were not in good faith and (2) evidence of his ability to pay, current earnings,

employment, property (other than real property), or resources. Thus, he argues, the State

failed to meet its burden, and the revocation should be reversed.

       We agree with the State’s basic contention that the record contains sufficient

evidence to support the court’s decision that Hutchinson inexcusably failed to comply

with a condition of suspension. There was sufficient testimony as to Hutchinson’s ability

to pay, current earnings, and employment, and the circuit court exercised its role as the

finder of fact and made a determination of credibility with regard to his explanation for

nonpayment. The court’s decision to revoke is therefore affirmed.

       Affirmed.
       HIXSON and WOOD, JJ., agree.
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Lisa-Marie Norris, for appellant.
Dustin McDaniel, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.




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