#### Larry CURETON v. STATE of Arkansas

CA CR 79-61

Opinion delivered October 24, 1979

and released for publication November 16, 1979

Pryor, Robinson, Taylor & Barry, for Appellant.

Steve Clark, Atty. Gen, by: Robert J. DeGostin, Asst. Atty. Gen., for appellee.

George Howard, Jr., Judge.

On January 24, 1978, appellant entered a plea of guilty to charges of forgery and uttering a $28.00 check. He was sentenced to the Department of Correction for five years, with four years suspended, on the forgery count and was placed on probation for five years on the uttering charge.

*1035On February 5, 1979, the Prosecuting Attorney for Sebastian County filed a petition to revoke appellant’s suspended sentence and term of probation. Appellant allegedly went to the Foxfire Club, a private dub in Fort Smith, and, after having been denied admittance because he and an associate were dressed ih blue jeans, broke into the club and assaulted the manager; and that this conduct was done in violation of his probation and suspended sentence; that appellant’s associate, Jackie Queen, was a known felon.

On February 8, 1979, the trial court, after conducting a revocation hearing, revoked appellant’s probation and suspended sentence and sentenced the appellant to the Department of Correction for four years on the forgery charge and ten years on the uttering count, with both sentences running concurrently. The court suspended two years of the sentence.

Appellant contends that the trial court abused its discretion in revoking his prior sentence and probation; and that the imposition of the maximum sentence on the uttering count is a further abuse of the court’s discretion.

In Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977), the Arkansas Supreme Court in holding that “abuse of discretion” would no longer be the standard to be used in evaluating a trial court’s finding in a revocation proceeding, stated:

> ... A court may revoke the probation, enter a judgment of conviction, and impose any sentence that may have been imposed originally for the offense ‘if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation.’ . . . (Emphasis added.) See also: Ark. Crim. Code § 41-1208(4) and (6) (1977 Repl.)

After reviewing the record, we cannot say that the trial court’s finding that appellant had inexcusably failed to comply with the condition of his probation and suspended sentence *1036:' r.i ■ m. cl, Ah nco ns¡i<i, w cording- ' |

Api'vfvj cm nr nasi ■’ by advhed by the trim court, when appdbvy ww sniiikw, , w y. bubón and given the suspense! , >, (fence, tter» bis probation .wad suspended sentence wee. -ondMonc'd "u; bis gown fcWwdor, that appellant wi*...: ; spccted tí» livw as si good ’biding citizen and to get /¡erg with people, that appdtort must not associate with persons who hove criminal meords; ?*nd¡ that appellant was «o# to frequent '‘bust joints.”

Appellant. ¿ximitted that prior io his arrival at the Foxfire Club, be ¿jad visited the Relay Station, a bar ini Fort Smith; that he left the Rebuy Station with Jackie Queen, a convicted felon, aí appiOjriUwsticly 2:00 a.m.; and-'ha? he had one “Pony ikidwexaer” beer earlier in the evening- Appellant acknowledged that he was Involved in an altercation at the Foxfire Club, hunt insisted til at he was not the aggvrjsof. I* is dear da! appellant and Jaríde Queen were seeking to enter the Foxfire Chub «ver the objections of the manager because they went: dressed in blue ¡jeans; that the altercation grew out of appellant’s efforts to gam entry into the dub; and that appellant and Jackie departed after an employee at the club ordered them away at gun point.

Appellant argues that the trial court committed error In taking into considera* ion, in revoking his probation and suspended sentence, that appellant had been associating with Jackie (Queen, a convicted felon. Appellant contends that Jackie is Ids first, coonsin and that they were virtually reared in the same household .end Jackie is regarded as a member of appellant’s immediate family. Consequently, argues appellant, the condition imposed relating to appellant’s non-association wish perenne who have criminal recordé should not apply muks the circumstances existing in this case. We are not Impressed wills appellant’» argument inasmuch as it is dear that appellant and Jackie Queen, at the time that appellant received the suspended sentence and probation, were not residing in she js&mhc household and the trial murt made it crystal dear that appellant was not to associafr cfit» any person who fiad a ct ¿urinal record. Moreover, if ap^.-luat *1037was uncertain about the application of the condition to his cousin or if the need arose where it became necessary for appellant to visit his cousin or to share accommodations, appellant could have either checked with his parole officer or the trial court for direction and guidance.

Finally, appellant argues that when the trial court imposed the probation and suspended sentence, he was led to believe that in the event his probation and suspended sentence were revoked, the court would impose a sentence equal to the original suspended term and the probationary period; and for the trial court to sentence him to ten years on the uttering charge instead of five years, appellant was denied due process of law since he was not duly notified of the potential sentence to which he may be subjected. Appellant makes this argument for the first time at the appellate level. It is well recognized that an appelláte court will not consider a question raised for the first time on appeal. Hughes v. State, 246 Ark. 723, 574 S.W. 2d 888.