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ARKANSAS COURT OF APPEALS DIVISION III CR-13-1089 No.

Opinion Delivered September 10, 2014

APPEAL FROM THE CRITTENDEN COREY DOTSON COUNTY CIRCUIT COURT APPELLANT [No. CR-2009-1029]

V. HONORABLE JOHN N. FOGLEMAN, JUDGE

STATE OF ARKANSAS AFFIRMED; MOTION TO WITHDRAW APPELLEE GRANTED

LARRY D. VAUGHT, Judge

Corey Dotson appeals from the sentencing order revoking his probation. Pursuant to

Arkansas Supreme Court Rule 4-3(k)(1) (2013), and Anders v. California,

(1967), his

attorney has filed a no-merit brief and a motion to withdraw, asserting that there is no issue of

arguable merit to present on appeal. We affirm the revocation and grant counsel’s motion to

withdraw.

On December 7, 2009, Dotson pled guilty to the sale and delivery of a controlled

substance and was sentenced to sixty months’ probation; ordered to pay fines, court fees and

costs, and probation fees; and directed to obey the terms and conditions of his probation. On

September 6, 2012, the State filed a petition to revoke Dotson’s probation, alleging that he had

failed to pay fines, costs, and fees; failed to report to the probation office; failed to pay

probation fees; failed to notify the sheriff and the probation office of his current address and Cite as

employment; departed from an approved residence without permission; possessed and used

cocaine and marijuana; and had four positive drug screens.

A revocation hearing was held on September 3, 2013. Amy Peyton, who collects

court-imposed fines and fees for the Crittenden County Sheriff’s Office, testified that Dotson

made no payments toward his fines, costs, and fees, leaving a balance of $2930. She also stated

that Dotson never contacted her to advise where he was working, where he was living, or why

he was not making his payments. During her testimony, a ledger reflecting the amount Dotson

owed in fees, fines, and costs was introduced into evidence.

Dotson’s probation officer, Chancey Butler-Rainey, testified that when she was assigned

Dotson as a probationer in July 2013, he was classified as an absconder. He had not been

reporting regularly, which resulted in a violation report being prepared August 6, 2012. Butler-

Rainey testified that in addition to Dotson’s failure to report, he failed to pay probation fees

and owed $755.

Dotson testified at the revocation hearing, acknowledging that he was aware that his

probation continued until 2014 but that he had not reported since June 2012. He said that he

stopped reporting because his original probation officer was no longer there and he (Dotson)

had started working. He further testified that he did not think he had to report after the petition

to revoke his probation had been filed against him. However, he advised the trial court that he

would report in the future. He also testified that for the past five years he had been working

full-time (off and on) at a truck wash and detail shop. He stated that he had paid some but not

all of the fines, fees, and costs. He said that while he was single and paid child support for his

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ten-year-old child, he thought he could pay $30 per week toward his court-imposed financial

obligations and have it paid before his probation term expired.

At the conclusion of the hearing, the trial court found that Dotson had inexcusably

failed to report and pay his fees, fines, and costs. The trial court revoked Dotson’s probation

and sentenced him to thirty-six months’ imprisonment in the Arkansas Department of

Correction, along with a sixty-month suspended imposition of sentence.

Counsel’s no-merit brief discusses the trial court’s sole adverse ruling—the

revocation—and explains why it is not a meritorious ground for reversal. Dotson has not raised

pro se points for reversal; accordingly, the State declined to file a responsive brief.

Probation may be revoked upon a finding by a preponderance of the evidence that the

defendant has inexcusably failed to comply with a condition of the probation. Williams v. State,

, at 3. On appeal, a revocation will not be overturned unless the decision

is clearly against the preponderance of the evidence.

We must give due regard to the trial

court’s superior position in determining the credibility of witnesses and weight to be given their

testimony.

If 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. Scroggins v. State,

,

. 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.

. If the probationer asserts an inability to pay, and provides evidence demonstrating

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that inability, then the State must demonstrate that the probationer did not make a good-faith

effort to pay.

. Despite the shifting of the burden of production, the State

shoulders the ultimate burden of proving that the probationer’s failure to pay was inexcusable.

. If the probationer offers no reasonable explanation for his failure to pay,

then it is difficult to find clear error in a trial court’s finding of inexcusable failure.

.

After carefully examining the record and the brief presented to us, we find compliance

with Rule 4-3(k)(1) and Anders, and we hold that there is no merit to this appeal. The testimony

of Peyton established that Dotson failed to pay his financial obligations as ordered.

Additionally, there was evidence that Dotson was employed and he could have paid at least $30

per month toward those obligations. Moreover, the testimony of Butler-Rainey established that

Dotson failed to report and pay his probation fees. While Dotson offered excuses for his failure

to report and to pay his fines, fees, and costs, the trial court was not required to believe him or

excuse his failure to comply with the conditions of his probation. Soto v. State,

. Therefore, the trial court’s finding that Dotson inexcusably failed to report to his

probation officer and to pay his court-ordered financial obligations was not clearly against the

preponderance of the evidence. Scroggins,

,

.

Accordingly, we affirm the revocation and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted. WALMSLEY and GLOVER, JJ., agree. C. Brian Williams, for appellant. No response.

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