                                  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
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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


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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:




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       (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.




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