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ARKANSAS COURT OF APPEALS DIVISION I No. CR-13-421

SCOTT COLLIER Opinion Delivered November 6, 2013

APPELLANT APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT V. [NO. 17-CR-2009-459]

HONORABLE GARY COTTRELL, STATE OF ARKANSAS JUDGE

APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Scott Collier appeals the revocation of his suspended imposition of sentence

(SIS), arguing that the evidence was insufficient to demonstrate that he willfully failed to pay

the restitution that was a condition of his SIS. We find no error and affirm.

Collier was charged as a habitual offender with seven counts of second-degree forgery.

Collier entered a plea of guilty, and the Crawford County Circuit Court sentenced him to

four years in an Arkansas Regional Correctional Facility with eleven years’ SIS. Among the

conditions of Collier’s SIS was that he pay restitution in the amount of $1,846 at the rate of

$50 per month. Cite as

The State filed a petition to revoke Collier’s SIS, alleging that he had failed to make

any payment toward his restitution for several months. The circuit court found that Collier

had violated the terms and conditions of his suspended sentence, sentenced him to six years

in the Arkansas Department of Correction, and found that the restitution would still be due

and owing upon his release.

Our standard of review in revocation cases is well settled. Because the burden of proof

in a revocation proceeding is less than that required to convict in a criminal trial, evidence

that is insufficient for a conviction may be sufficient for a revocation. Reyes v. State,

; Pitchford v. State,

. When the sufficiency of the evidence

is challenged on appeal, we will not reverse a trial court’s decision to revoke unless its

findings are clearly against the preponderance of the evidence. Reyes, supra. Because the

determination of a preponderance of the evidence turns on questions of credibility and

weight to be given testimony, we defer to the superior position of the trial court to decide

these matters. Id.

In a revocation case, where the alleged violation of conditions is a failure to make

payments as ordered, the State has the burden of proving by a preponderance of the evidence

that the failure to pay was inexcusable. Bohlman v. State,

; Reese v. State,

,

(1988). Janice Joslin, the victim-witness coordinator for

the Crawford County Prosecuting Attorney’s Office, testified that her restitution ledger

showed that Collier had made only two $50 payments in June and July 2011 toward the

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restitution that had been ordered. Joslin stated that there was a note in the ledger indicating

that Collier would pay twice in August 2011, but there were no further payments.

Even though the burden of proof did not shift from the State, once the State

introduced evidence of nonpayment, the burden of going forward shifted to Collier to offer

some reasonable excuse for his failure to pay. See Bohlman, supra. Collier offered the

following evidence as his reasonable excuse for the failure to pay. He explained that he was

paroled from the regional correctional facility to a “chem-free house in Hot Springs.” After

thirty days in the Hot Springs house, his mother rented him an apartment. Collier received

a Pell Grant and started school at National Park Community College. He used the grant

money to make the two payments on his restitution.

While living in Hot Springs, Collier reported several life complications. He developed

a stomach ulcer and was hospitalized for three days; he was beaten up and robbed, resulting

in an anxiety disorder; and he dropped out of school and could not obtain employment

because of his felony record. Collier also asserted that he tried to borrow money to pay his

restitution, but no one would lend him anything.

Because Collier asserted an inability to pay, the State resumed going forward with its

burden by attacking Collier’s credibility through cross-examination. See, e.g., Newsom v.

State,

,

. Collier admitted his obligation to pay

restitution, and agreed that he did not have to go to school but chose to do so. Collier agreed

that he had a donated laptop that he could have sold and used the proceeds as payment for

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restitution. Collier also acknowledged that he had a cosmetology license and his family

owned barber shops, so he could get a job.

In determining whether to revoke a suspended sentence for nonpayment, the court

is required to consider the defendant’s employment status, earning ability, financial resources,

the willfulness of the defendant’s failure to pay, and any other special circumstances that may

have a bearing on the defendant’s ability to pay. See, e.g., Jordan v. State,

,

(1997). Where the failure to pay restitution is not willful, the probationer cannot

be punished by imprisonment solely for a failure to pay.

The failure to make bona fide

efforts to seek employment or to borrow money to pay restitution, however, may justify

imprisonment. Bohlman, supra.

Collier argues on appeal that he offered “ample evidence” as to why he failed to make

payments on his restitution. He notes his testimony that he was “living on the generosity of

his mother and grant money” and that he was “pursuing available job opportunities” while

living in Hot Springs. He also cites being “robbed of all his possessions” as hindering his

ability to pay restitution. Because he put forth evidence of his inability to pay, Collier argues,

the State was then required to carry its burden of demonstrating a lack of good-faith efforts

to pay by a preponderance of the evidence. Because the State failed to put on any evidence

that Collier’s actions were not in good faith, he contends that the State failed to meet its

burden. We disagree.

The circuit court considered all of the appropriate factors—Collier’s employment

status, earning ability, financial resources, and willfulness—and concluded that he failed to

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make sufficient attempts to comply with the conditions of his probation. The circuit court

found that Collier made the choice to go to school instead of finding work. This conclusion

is supported by Collier’s own testimony that, with his cosmetology license and his family’s

barber shops, he could have gotten a job. Further, Collier admitted that he did not have to

go to school but chose to do so. In Bohlman, supra, this court affirmed the revocation of

appellant’s suspended sentences based on failure to pay restitution where the evidence

showed that appellant admitted he had worked sporadically in the past and could “probably

find some type of employment in the future.” Bohlman,

, at 3. Given the

deference this court shows to the circuit court’s superior opportunity to determine the

credibility of a witness’s testimony and the weight of the evidence, see

we cannot say that

the circuit court’s decision was clearly against the preponderance of the evidence. We

therefore affirm.

Affirmed.

HARRISON and GRUBER , JJ., agree.

Lisa-Marie Norris, for appellant.

Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.

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