ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

CHARLES ARMSTRONG

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1278

JUNE 6, 2001

APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT

[NOS. CR99-277, 99-217A, 2000-33]

HONORABLE FLOYD G. ROGERS,

CIRCUIT JUDGE

AFFIRMED

Appellant Charles Armstrong appeals the decision of the Crawford County Circuit Court revoking his ten-year suspended sentence and sentencing him to a ten-year prison term in the Arkansas Department of Correction. Appellant lists the following points on appeal: (1) that the trial court's decision to impose the full ten years upon revocation is not justified and that some other remedy more nearly approximates the harm suffered by the State; and (2) that the absence of a specific court order of revocation in the record is "fatal." We note that appellant sets forth no argument on the second point in his brief; consequently we consider this argument abandoned. As to his first point on appeal, which is argued in his brief, we cannot agree and affirm his revocation.

Appellant pleaded no contest on February 2, 2000, to the offenses of possession of marijuana, two counts of possession of methamphetamine, possession of drug paraphernalia,

and theft by receiving. The circuit court sentenced appellant to ten years of imprisonment on the methamphetamine and paraphernalia charges, ten years of suspended imposition of sentence on the theft charge, and one year of suspended imposition of sentence on the misdemeanor marijuana charge. The plea agreement entered into between appellant and the State conditioned the suspended imposition of sentence on good behavior and on his timely surrender on March 1, 2000, at 6:00 a.m. to begin his prison sentence. He did not comply; on that date he was incarcerated in Oklahoma. The State filed a petition to revoke his suspended sentence on March 6, 2000, based upon his failure to report to the detention center. After a hearing on this matter, the circuit court revoked the suspended portion of his sentence and sentenced appellant to ten additional years of incarceration to be served consecutively to the ten years previously ordered. Appellant filed a motion to reconsider, which was denied. Appellant now appeals from the denial of his motion to reconsider the revocation.

When the State seeks to revoke a suspended sentence, it bears the burden of proving by a preponderance of the evidence that appellant inexcusably violated a condition of his suspended sentence. Ark. Code Ann. § 5-4-309(d)(Repl. 1998). On appeal, a trial court's decision to revoke a suspended sentence will not be reversed unless it is clearly against the preponderance of the evidence. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

The evidence presented by the State established that appellant reported to the detention center not on March 1, 2000, as directed, but on May 13, 2000. Appellantexplained that he was arrested on February 12, 2000, on drug charges in Oklahoma and was in jail on March 1 and was unable to appear. He was charged in Oklahoma with manufacture of methamphetamine and possession of paraphernalia. Appellant argued that because he could not be present, then he did not inexcusably violate a condition of his suspended sentence. The trial judge did not find this to be compelling, stating that "his conduct is what created his problem."

The substance of his argument at the trial level, which he does not advance on appeal, was that it was not his fault that he did not appear. Were we asked to consider this his argument on appeal, and based upon the standard of review we are obligated to apply, we could not agree that the trial court's conclusion was clearly against the preponderance of the evidence. This is so because appellant agreed with the conditions of his suspended sentence and had the power to prevent any violation but chose not to do so within a mere ten days of having pleaded no contest. Appellant does not contend that he was innocent of the new drug charges and should not have been arrested in Oklahoma. The term "inexcusably" implies that the violation occurred through no fault of the probationer, and such is not applicable here. See 5 Wayne R. LaFave, Criminal Procedure § 26.10(a) (1999).

Appellant argues to us that the trial court should have been more lenient with him when it sentenced him to the full ten years to run consecutively. In essence, appellant begs for mercy in the imposition of sentence upon revocation, asserting that the consecutive ten years imposed is not fair and that perhaps running the sentence concurrently would be a better exercise of the trial judge's discretion. We disagree. It is well established that thequestion of whether sentences should run consecutively or concurrently lies within the province of the trial court. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Moreover, the trial court is not required to explain its reason for running sentences consecutively. Id.; see also Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). The trial judge was free to sentence him upon revocation to any imprisonment within the applicable statutory range. See Deere v. State, 59 Ark. App. 174, 954 S.W.2d 943 (1997) (holding that ten years of prison with ten years suspended was not excessive as it was in the statutory range of five to twenty years for the offense of theft by receiving).

We affirm.

Jennings and Baker, JJ., agree.