LITTLE ROCK — A 21-year-old Little Rock man who killed a friend in a 2009 alcohol-related car crash got his “last chance” Tuesday to stay out of prison from a Pulaski County circuit judge who imposed a six-year suspended sentence because he violated terms of his release from prison.
But Judge Leon Johnson warned Benjamin Franklin Swindoll that he will not tolerate any further rule violations, promising to send Swindoll back to prison if he uses alcohol or illegal drugs during his sentence, fails to complete the substance abuse treatment program he’s currently enrolled in or violates any of the conditions of his sentence.
“Mr. Swindoll, the rules apply, the rules apply, the rules apply,” Johnson said, calling the sentence Swindoll’s “last chance.” “If you want to get your life right, get it right. Otherwise, I’m sending you to prison.”
Tuesday’s hearing was the latest in Swindoll’s nearly four-year journey through the criminal justice system that began with his December 2007 arrest at age 17 for ecstasy trafficking, which resulted in a deal with prosecutors: They would dismiss the charge if Swindoll stayed out of trouble until June 2009.
But nine months after that agreement, Swindoll killed 17-year-old Nicki Rose Pow-ell in a March 2009 car crash on Chenal Parkway, an accident that resulted in a felony negligent homicide charge. Two weeks later, Swindoll was arrested on a Florida beach - on the day of Powell’s funeral in California - for having beer. At his first appearance in circuit court on the homicide charge, Swindoll tested positive for marijuana.
Swindoll, who admitted previously in court that he had been drinking alcohol and smoking marijuana before the fatal crash, denied that he was driving drunk that day and blamed the crash on bad tires and rain slick streets. Prosecutors were forced to reduce the felony homicide charge to a misdemeanor in the face of a defense challenge to the accuracy of blood tests, leading to an arrangement in October 2009 for Swindoll to plead guilty to misdemeanor negligent homicide and felony ecstasy trafficking and drug paraphernalia charges.
In exchange for the guilty plea, Swindoll was sentenced to 10 years with six suspended and allowed to enroll in a nine month prison drug-rehabilitation program. But in October 2010, three weeks after he was paroled, Swindoll was arrested for speeding and drunken driving, misdemeanor charges he pleaded guilty to in July in Sherwood District Court.
Arguing that the arrest violated the terms of his suspended sentence on the drug conviction, prosecutors attempted to have him sent back to prison in December, but were thwarted by a technicality: paperwork was missing from his guilty plea.
Tuesday’s hearing was the second opportunity for prosecutors to have him returned to prison. Under orders from the Sherwood court to submit to alcohol testing, Swindoll tested positive in August, and on Tuesday, deputy prosecutor Tonia Acker told the judge that test was enough to send him back to prison.
“He’s been given opportunity after opportunity after opportunity,” Acker told the judge. “He doesn’t do anything until the court makes him. Mr. Swindoll is a danger to others and himself.”
Acker didn’t suggest a prison sentence, but told the judge he could sentence Swindoll to up to 30 years in prison.
Defense attorney Jack Lassiter described the positive test, which Swindoll blamed on mouthwash, as an aberration, pointing out that Swindoll passed 17 other alcohol tests and that his client is actively working to overcome his addictions. Since September, according to testimony, Swindoll has completed the 44-day Serenity Park residential treatment program and is now in that program’s outpatient segment, which could take another year to finish.
Johnson said he was imposing the six-year sentence because he was impressed with how Swindoll has repeatedly acknowledged his drug and alcohol addictions and because the Sherwood sobriety program Swindoll is participating in did not find his alcohol violation significant enough to eject him from the program.
Rocky Powell, the dead girl’s father, said Swindoll has repeatedly been given special treatment by the legal system, likely because his father, James Swindoll, is an attorney.
“There are no consequences for his behavior,” Powell said Tuesday. “I just hope he doesn’t hurt somebody else.”
Arkansas, Pages 11 on 10/26/2011