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ARKANSAS COURT OF APPEALS DIVISION II No. CR-15-562

ERICA CRYSTAL VALENCIA Opinion Delivered March 16, 2016 APPELLANT APPEAL FROM THE CRAWFORD V. COUNTY CIRCUIT COURT [NOS. 17CR-2010-409, 17CR-2010- STATE OF ARKANSAS 580] APPELLEE HONORABLE MICHAEL MEDLOCK, JUDGE

AFFIRMED AS MODIFIED

CLIFF HOOFMAN, Judge

Appellant Erica Valencia appeals after the Crawford County Circuit Court revoked her

suspended sentence and sentenced her to serve seventy-two months’ imprisonment in case

number 17CR-10-409 and forty-eight months’ suspended imposition of sentence (SIS) in case

number 17CR-10-580, to be served consecutively. On appeal, her sole contention is that the

trial court erred in revoking her suspended sentence as there was no valid probationary

sentence in place to revoke. We affirm.

On February 23, 2011, appellant pleaded guilty to theft of property in case number

17CR-10-409 and to attempting to obtain a controlled substance by fraud in case number

17CR-10-580. Appellant was placed on thirty-six months’ probation and ordered to pay

court costs, fees, and restitution in an order filed on March 18, 2011. The State filed a

petition to revoke appellant’s probation in both cases on December 14, 2011, for failing to

abide by the rules and regulations of drug court. In a sentencing order filed on January 11, Cite as

2012, the trial court revoked her probation and sentenced her to serve twenty-four months

in a community-corrections center followed by ninety-six months’ SIS in case number

17CR-10-409 and to serve twenty-four months in a community-corrections center followed

by forty-eight months’ SIS in case number 17CR-10-580, to be served concurrently.

Additionally, appellant was ordered to resume paying her fees and restitution within sixty days

after her release.

The State filed a petition to revoke on June 18, 2013, alleging that appellant had failed

to make her payments toward her costs, fees, and restitution since December 21, 2011.

Appellant pleaded guilty to contempt on September 19, 2013, and the trial court ordered her

to perform thirteen days of community service and to resume making her payments toward

her costs, fees, and restitution as previously ordered in an order filed on September 27, 2013.

The State filed a subsequent petition to revoke appellant’s SIS on October 29, 2013, and an

amended petition on December 11, 2014, alleging that appellant had failed to abide by the

rules and regulations of her community service and that she had failed to make any payments

toward her costs, fees, and restitution since January 14, 2014. A revocation hearing was held

on April 16, 2015.

At the hearing, Junior Bing, the Community Services Director for Crawford County,

testified that appellant was ordered to complete thirteen days of community service.

However, on the first day, September 19, 2013, she admitted that she could not pass a drug

test and, in fact, tested positive for marijuana. Bing told her to return on October 14, 2013,

which she did. Although a schedule was set for her to complete her service, appellant failed

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to follow the schedule and tested positive for marijuana, methamphetamine, and

amphetamines on October 28, 2013. Bing further explained that appellant did not return

after failing her second drug test. Therefore, she failed to complete her community-service

requirements as ordered.

Janice Gilbreth, the Victim Witness Coordinator for the Prosecuting Attorney’s Office,

testified that she maintained the payment files for costs, fines, and restitution. She indicated

that appellant’s original balance was $2,377.75 and that her balance at the time of the hearing

was $1,857.75. However, Gilbreth testified that appellant had stopped making payments and

that her last payment had been made on January 14, 2014.

Appellant’s counsel moved for a directed verdict. Although counsel acknowledged that

appellant was on notice that she was required to pay restitution, counsel argued that Arkansas

law required that appellant be served with the terms and conditions of her January 11, 2012

SIS and that the terms-and-conditions document was missing from the clerk’s file. The trial

court summarily denied appellant’s motion and found her in violation because she failed to

complete her community service and pay her restitution as ordered. The trial court filed a

sentencing order on April 21, 2015, revoking appellant’s SIS and sentencing her to serve

seventy-two months’ imprisonment in case number 17CR-10-409 and forty-eight months’

SIS in case number 17CR-10-580, to be served consecutively. This timely appeal followed.

In a revocation proceeding, the trial court must find by a preponderance of the

evidence that the defendant has inexcusably failed to comply with a condition of his or her

suspension or probation, and on appellate review, we do not reverse the trial court’s decision

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

,

. Because the burdens are different, evidence that is insufficient

for a criminal conviction may be sufficient for a probation or suspended-sentence revocation.

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

and weight to be given testimony, we defer to the trial court’s superior position.

Furthermore, the State need only prove that the appellant committed one violation of the

conditions in order to revoke appellant’s sentence.

Arkansas Code Annotated section 5-4-303 (Supp. 2015) requires the trial court to give

a written statement explicitly setting forth the conditions under which a defendant is being

released if it suspends imposition of sentence or places him or her on probation. Courts have

no power to imply and subsequently revoke conditions that were not expressly communicated

in writing to a defendant as a condition of his or her suspended sentence. Blankenship v. State,

. However, there is no corollary requirement that the defendant sign a

written acknowledgment when he or she receives the written statement or that one be

introduced at a revocation hearing. Johnson v. State,

,

.

Whether there is proof that a probationer received written conditions of probation is a

procedural matter, and not one of the sufficiency of the evidence. Costes v. State,

,

(2008).

Appellant argues that the trial court erred in revoking her suspended sentence because

there is nothing in the record to demonstrate that she was “served” with the terms and

conditions of her suspended sentence. Arkansas Supreme Court Administrative Order

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Number 8 explains that the office of the prosecuting attorney is responsible for completing

and submitting the sentencing order to the circuit judge for signature, which is filed in the

office of the circuit clerk. The clerk is then responsible for forwarding a copy of the

sentencing order to the counsel of record for the defendant.

At the revocation hearing,

appellant’s counsel openly acknowledged that appellant was on notice to pay restitution.

Counsel also did not specifically argue that appellant failed to receive a copy of the trial court’s

January 11, 2012 sentencing order. Instead, counsel summarized,

I’m not saying the sentencing order is not effective. I’m saying by statute she’s got to be served the terms and conditions of the suspended sentence ordering her to pay that restitution and how to pay that restitution and that’s absent from the Clerk’s file.

Appellant is mistaken. Although appellant’s addendum does not include the terms and

conditions of appellant’s January 11, 2012 SIS that was a part of the sentencing order, the

State contends that the entire January 11, 2012 sentencing order consisted of six pages, and

it filed a supplemental addendum with this court including all six pages. Furthermore, a

review of our entire record on appeal affirms the State’s contention. The January 11, 2012

sentencing order mandated that appellant pay $2,377.75 in restitution to be paid in $50.00

monthly installments within sixty days of appellant’s release. The sixth page of the sentencing

order, which was not included in appellant’s addendum, is titled “additional terms/conditions

of disposition” and lists the following additional conditions:

[1.] $5.00 administrative fee to be paid with each restitution payment. [2.] $10.00 administrative fee to be paid with each fine payment/cost/DNA submission fee/booking fee/and DTF fee payment. [3.] Surrender for ADC sentence UPON NOTIFICATION BY BONDING COMPANY. Bond provision: $3,500.00 RELEASE BOND.

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[4.] Defendant to complete Long Term Drug Rehabilitation Program while incarcerated. [5.] Suspended time conditioned upon good behavior. [6.] Any violation of the terms and conditions of this suspended imposition of sentence may result in a revocation and/or a finding of contempt of court.

Therefore, contrary to appellant’s allegation, the terms and conditions of appellant’s SIS were

a part of the trial court’s sentencing order and were also included in the clerk’s record. In

addition, Gilbreth testified that appellant had already partially complied with those terms and

conditions, after her release, when she made a payment on January 14, 2014. Thus, under

these circumstances, we cannot say that the trial court clearly erred in revoking her suspended

sentence.

Although we affirm appellant’s revocation, we hold that appellant’s sentence is illegal.

The issue of an illegal sentence cannot be waived by the parties and may be addressed for the

first time on appeal. Reyes v. State,

,

. In Arkansas,

sentencing is entirely a matter of statute. Walden v. State,

,

. If we hold that a trial court’s sentence was illegal and that the error had nothing

to do with guilt, but only with the illegal sentence, we can correct the sentence in lieu of

remanding.

In Walden, our supreme court interpreted

(b) as

requiring suspended sentences imposed with terms of imprisonment for different crimes to run

concurrently.

In this case, the trial court ran the forty-eight months’ SIS in case number

17CR-10-580 consecutively to the seventy-two months’ imprisonment in case number

17CR1-10-409. We modify the sentencing order to reflect that the two sentences are to run

concurrently.

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Affirmed as modified.

KINARD and GLOVER, JJ., agree.

Lisa-Marie Norris, for appellant.

Leslie Rutledge, Att’y Gen., by: Brooke Jackson, Ass’t Att’y Gen., for appellee.

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