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ARKANSAS COURT OF APPEALS DIVISION III No. CR-14-150

DELEVECCHIO ANTONIO SUGGS Opinion Delivered JANUARY 14, 2015 APPELLANT APPEAL FROM THE CRITTENDEN V. COUNTY CIRCUIT COURT [NO. CR-2010-740]

STATE OF ARKANSAS HONORABLE JOHN N. APPELLEE FOGLEMAN, JUDGE

AFFIRMED; COUNSEL’S MOTION TO BE RELIEVED GRANTED

DAVID M. GLOVER, Judge

In June 2010, appellant Delevecchio Suggs entered a guilty plea to the offense of

possession of a controlled substance (marijuana) with intent to sell. He was placed on

probation for five years. Conditions of his probation included payment of a $750 fine and

$895 in costs and fees, to be paid in installments of $50 per month beginning in August 2010;

paying a $25 monthly probation fee; living a law-abiding life; not using or possessing alcohol

or any illegal drug; and notifying his probation officer and the sheriff of any employment or

address changes. The State filed a petition to revoke Suggs’s probation in August 2013,

alleging that Suggs had failed to pay his fines, costs, and fees as directed; failed to report to his

probation officer as directed and to pay his probation fees; failed to notify the sheriff and his

probation officer of his current address and employment; possessed and used alcohol; and was

arrested on two counts of DWI. At the revocation hearing, the trial court found that Suggs Cite as

had violated the terms of his probation by failing to pay his fines and costs and by possessing

and using alcohol. The trial court revoked Suggs’s probation and sentenced him to three

years in prison, to be followed by a five-year suspended imposition of sentence. Suggs filed

a timely notice of appeal.

Pursuant to Anders v. California,

(1967), and Rule 4-3(k) of the Rules

of the Arkansas Supreme Court and Court of Appeals, Suggs’s counsel has filed a motion to

withdraw on the grounds that the appeal is wholly without merit. Counsel’s motion was

accompanied by a brief referring to everything in the record that might arguably support an

appeal, including a list of all rulings adverse to Suggs made by the trial court on all objections,

motions, and requests made by either party, with an explanation as to why each adverse ruling

is not a meritorious ground for reversal. The clerk of this court furnished Suggs with a copy

of his counsel’s brief and notified him of his right to file pro se points; Suggs has not filed

points.

The sole adverse ruling was the revocation of Suggs’s probation. A sentence of

probation may be revoked when a trial court finds by a preponderance of the evidence that

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

. The State has the burden of proving a probation violation by a

preponderance of the evidence, and that decision will not be reversed by the appellate courts

unless it is clearly against the preponderance of the evidence. Langel v. State,

. The State need only show that the defendant committed one violation in order to

sustain a revocation.

The appellate courts defer to the trial court’s superior

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position to determine credibility and the weight to be accorded testimony.

At the revocation hearing, Amy Peyton, whose job is to collect fines, costs, and other

assessments for the Crittenden County Sheriff’s Office, testified that Suggs had paid nothing

on his $750 fine or his $895 costs since he had been ordered to begin paying $50 per month

in August 2010. Peyton said that Suggs had never contacted her regarding his fines and fees.

Where the alleged violation is failure to make court-ordered payments, it is the State’s

burden, by a preponderance of the evidence, to prove that the failure to pay was inexcusable.

Pevetoe v. State,

. Once the State introduces evidence of nonpayment, the

defendant then bears the burden of going forward with some reasonable excuse for his failure

to pay.

Here, the State provided evidence that Suggs had made no payments toward his fine

and costs. Suggs did not testify at the revocation hearing; he provided no reason for his failure

to make any payments. This failure to make payments is sufficient evidence to sustain the

revocation of Suggs’s probation; therefore, it is unnecessary to discuss whether there was

sufficient evidence to support the revocation of Suggs’s probation based on his use of alcohol.

Affirmed; counsel’s motion to be relieved granted.

GLADWIN, C.J., and GRUBER, J., agree.

C. Brian Williams, for appellant.

No response.

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