Robert Kenneth Kramer v The State Of Oklahoma

RE-2018-769

Filed: Jul. 18, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Robert Kenneth Kramer appealed his conviction for Financial Exploitation by a Caregiver. His conviction and sentence involved ten years in prison, with six years suspended. After a post-conviction decision, the suspended sentence was changed to eight years. The state then sought to revoke this suspended sentence because Kramer was accused of having a cell phone in jail and hiding stolen property. The hearing confirmed these violations, and the court decided to revoke the entire eight-year suspended sentence. Kramer argued that the court made mistakes during the process and that there wasn't enough evidence against him. However, the court found that there was enough proof regarding the cell phone possession. The court affirmed their decision to revoke Kramer’s sentence. Judge Rowland wrote the opinion, and Judges Lewis and Kuehn agreed with the ruling. Judge Hudson concurred in the results, while there was no dissenting opinion recorded.

Decision

The order of the District Court of Okfuskee County revoking Appellant's suspended judgment and sentence in Case No. CF-2015-100 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there a violation of the 20-day Rule regarding the timely hearing of the revocation application?
• Did the evidence presented by the State sufficiently prove that Appellant possessed a cell phone while incarcerated?

Findings

• The court did not err regarding the 20-day Rule as Appellant did not raise this objection below and failed to show plain error.
• The evidence was sufficient to prove Appellant possessed a cell phone while in the county jail.
• The order revoking Appellant’s suspended sentence is affirmed.

RE-2018-769

Jul. 18, 2019

Robert Kenneth Kramer

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE: Appellant, Robert Kenneth Kramer, appeals from the revocation of his suspended sentence in Okfuskee County District Court Case No. CF-2015-100. On September 9, 2015, Appellant entered a negotiated plea of nolo contendere to Financial Exploitation by a Caregiver (21 O.S.2011, § 843.1) After Former Conviction of a Felony (21 O.S.Supp.2011, § 51.1). He was sentenced to a term of imprisonment for ten years, with the final six years suspended. On May 31, 2017, the trial court ruled on a post-conviction application and modified the suspended portion of the sentence from six to eight years. On March 28, 2018, the State filed an application to revoke the suspended sentence alleging Appellant had committed the new crimes of possessing a cell phone while incarcerated and knowingly concealing stolen property. On July 11, 2018, a hearing on the application to revoke was held before the Honorable Lawrence W. Parish, District Judge. Judge Parish granted the State’s application and revoked the eight-year sentence in full.

ANALYSIS

At a hearing where the State seeks revocation of a suspended sentence, the question is whether the suspended portion of the sentence imposed should be executed, and the court makes a factual determination as to whether the terms of the suspension order have been violated. Robinson v. State, 1991 OK CR 44, ¶ 3, 809 P.2d 1320, 1322. The violation “need be proven only by a preponderance of the evidence.” Tilden v. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554, 556. A trial court’s decision to revoke a suspended sentence should not be overturned absent a finding of an abuse of discretion. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565.

In his first proposition of error, Appellant contends the district court violated the “20-day Rule.” See 22 O.S.Supp.2012, § 991b(A). Appellant did not raise this objection below and therefore review is for plain error. To be entitled to relief under the plain-error standard, “Appellant must show a plain or obvious deviation from a legal rule which affected his substantial rights. Even then, this Court will not grant relief unless the error seriously affects the fairness, integrity or public reputation of the judicial proceedings, or otherwise represents a miscarriage of justice.” Lavorchek v. State, 2019 OK CR 13, ¶ 5, P.3d .

Appellant has not made this showing. A May 2, 2018, court minute reflects that Appellant was appointed counsel and that he waived the “right to hearing within statutory time.” “[A] defendant cannot acquiesce in the delay of a hearing and/or participate in the continuance of a hearing and then claim that he is entitled to relief because the court did not abide by the 20-day time limitation.” Grimes v. State, 2011 OK CR 16, ¶ 7, 251 P.3d 749, 753. Proposition I is denied.

In his second proposition of error, Appellant contends the evidence presented by the State was insufficient to prove he possessed a cell phone while in the county jail. We disagree. Appellant’s ex-wife testified she received text messages from a phone whose number she associated with Appellant. The topics covered by the text messages also led her to conclude the exchanges were with Appellant. In addition, the State presented testimony from a jailer who witnessed several inmates, including Appellant, attempting to destroy a cell phone. The State’s evidence meets the preponderance of the evidence standard. See Queen v. State, 1925 OK CR 597, 35 Okl.Cr. 412, 250 P. 935, 935 (“preponderance simply means the greater weight of evidence”). Proposition II is denied.

DECISION

The order of the District Court of Okfuskee County revoking Appellant’s suspended judgment and sentence in Case No. CF-2015-100 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2011, § 843.1
2. 21 O.S.Supp.2011, § 51.1
3. 22 O.S.Supp.2012, § 991b(A)
4. Robinson U. State, 1991 OK CR 44, II 3, 809 P.2d 1320, 1322
5. Tilden U. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556
6. Jones U. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
7. Lavorchek U. State, 2019 OK CR 13, I 5, P.3d .
8. Grimes U. State, 2011 OK CR 16, II 7, 251 P.3d 749, 753
9. Queen U. State, 1925 OK CR 597, 35 Okl.Cr. 412, 250 P. 935, 935

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.1 (2011) - Financial Exploitation by a Caregiver
• Okla. Stat. tit. 21 § 51.1 (Supp. 2011) - After Former Conviction of a Felony
• Okla. Stat. tit. 22 § 991b(A) (Supp. 2012) - 20-day Rule

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Robinson v. State, 1991 OK CR 44, I 3, 809 P.2d 1320, 1322.
• Tilden v. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556.
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565.
• Lavorchek v. State, 2019 OK CR 13, I 5, P.3d .
• Grimes v. State, 2011 OK CR 16, II 7, 251 P.3d 749, 753.
• Queen v. State, 1925 OK CR 597, 35 Okl.Cr. 412, 250 P. 935, 935.