Court dismisses 6-year sentence in probation case

It finds violations not proven for Benton County appellant

LITTLE ROCK — The Arkansas Court of Appeals, stating the lower court erred in its findings, Wednesday reversed and dismissed a decision by Benton County Circuit Court to sentence a man to prison for a probation violation.

A Benton County circuit judge revoked Toby Lee Howe’s probation and sentenced him to six years in prison, according to court documents. Howe’s appeal stated the state failed to prove that he violated the conditions of his probation.

The Court of Appeals agreed and reversed the revocation and dismissed the case.

Howe was placed on probation in January 2020 after pleading guilty to two counts of first- degree terroristic threatening, two counts of violating a protection order and violating his probation.

Court documents state that in April 2020, the state petitioned to revoke Howe’s probation, alleging that he had committed several new offenses, failed to complete a domestic-violence treatment program as ordered, failed to pay his fines and fees and failed to pay his supervision fee. A month later, the state filed an amended petition that had fewer new violations but still alleged failure to complete a domestic-violence treatment program and failure to pay fines and fees.

The circuit court had a revocation hearing in October 2020 in which the state announced it would introduce evidence only on the allegations of failure to pay fines and fees and failure to complete domestic-violence treatment.

Howe’s probation officer testified at the hearing that when the amended revocation petition was filed, the fees had been “paid ahead” and that Howe was current on his payment of supervision fees.

The probation officer also said the domestic-treatment requirement had not been completed when the revocation petition was filed, but Howe enrolled in treatment three days before the hearing and was scheduled to begin classes in November, according to court documents.

The state also presented evidence to the court that Howe had paid his fines and fees to the county in April and October 2020.

The state asked the court to dismiss the allegation regarding supervision fees and the defense presented no evidence. The court then announced the state had proved by a preponderance of evidence that the revocation petition was true and that Howe had failed to comply with the required domestic-violence treatment and failed to make consistent payments.

Howe testified during the sentencing phase of the revocation hearing that he had several hand surgeries that prevented him from completing the domestic-violence treatment the first time he had enrolled. He said covid-19 had also caused a delay in beginning treatment again.

Howe also said he “paid ahead” his Benton County fines and fees by paying a lump sum in April 2020. He said he didn’t know that he wasn’t supposed to pay ahead and that he planned to make future payments each month as instructed.

The lower court found that Howe had willfully failed to comply with the conditions of his probation and he was sentenced to six years imprisonment and six years of suspended imposition of sentence, both to run concurrently.

Howe appealed the decision, saying the circuit court revoked his probation without using supported evidence.

The Court of Appeals stated the circuit court erred by revoking Howe’s probation for failure to complete the domestic-violence treatment, when there was no deadline for completing the treatment. The appeals court also said the circuit court based its ruling on Howe’s willful failure to make “consistent” payments, which is different from the nonpayment alleged in the revocation petition.