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RE-2018-342

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Joshua Eric Armstrong v The State of Oklahoma

RE-2018-342

Filed: May 9, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Joshua Eric Armstrong appealed his conviction for revoking a suspended sentence. The conviction and sentence were affirmed, meaning Joshua will have to serve the remaining time of his sentence. Judge Kuehn dissented.

Decision

The revocation of Appellant's suspended sentence in Woodward County District Court Case No. CF-2017-5 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 the filing of this decision.

Issues

  • Was there a sufficient explanation of the probation violations relied upon by the trial court for revocation?
  • Did the State adequately prove the probation violations alleged against Appellant?
  • Was the evidence sufficient to establish that Appellant provided an incorrect address to his probation officer?
  • Was Appellant improperly revoked for failing to provide proof of employment when it was not alleged in the State's petition to revoke?
  • Did the trial court abuse its discretion in revoking a portion of Appellant's suspended sentence instead of requiring treatment?

Findings

  • Proposition I is without merit.
  • Propositions II, III, and V are without merit.
  • Proposition IV is without merit.
  • Proposition VI is without merit.
  • Proposition VII is without merit.
  • The revocation of Appellant's suspended sentence is AFFIRMED.

RE-2018-342

May 9, 2019

Joshua Eric Armstrong

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE:

Appellant, Joshua Eric Armstrong, appeals from the revocation of his suspended sentence in Woodward County District Court Case No. CF-2017-5, by the Honorable David A. Work, Associate District Judge. On March 31, 2017, Appellant entered a plea of no contest to Possession/Concealing Stolen Property, in violation of 21 O.S. § 1713, in Case No. CF-2017-5. He was convicted and sentenced to five years imprisonment, with all except the first two months suspended. On March 8, 2018, the State filed a petition seeking to revoke Appellant’s suspended sentence alleging Armstrong failed to report; provided a false address; tested positive for methamphetamine; failed to pay court costs; failed to pay prosecution reimbursement fees; failed to pay restitution; and committed the new crime of Grand Larceny as alleged in Woodward County District Court Case No. CF- 2018-11.

Following a March 27, 2018, revocation hearing, Judge Work revoked four years of Armstrong’s remaining suspended sentence. In his first proposition Armstrong argues he is entitled to relief because Judge Work’s oral and written pronouncements failed to adequately detail the probation violations relied upon by the trial court. There is no statutory requirement that a court issue findings of fact and conclusions of law upon revoking a suspended sentence, although this may be a preferred procedure. See 22 O.S. § 991b(D). This court has repeatedly held a trial court’s failure to state the reasons for revocation does not violate due process. McCowan v. State, 1987 OK CR 101, I 4, 737 P.2d 954, 955; Mack V. State, 1981 OK CR 160, I 4, 637 P.2d 1262, 1264; Powell U. State, 1987 OK CR 238, II 3-4, 745 P.2d 1180, 1181-82. The State’s First Amended Application to Revoke Suspended Sentence and its attached violation reports sufficiently apprised Appellant of the grounds upon which he was revoked. Id. Proposition I is without merit.

In Propositions II, III, and V Armstrong claims he is entitled to relief because the State did not prove certain probation violations. Armstrong is correct that the State chose not to pursue proving certain probation violations but Armstrong misstates the significance of the State’s choice in this case. The State proved several other probation violations and did not need these abandoned violations to sustain its burden. The State must only prove one violation of probation by a preponderance of the evidence in order to revoke Appellant’s suspended sentence in full. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557 (citing McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745). Propositions II, III, and V are without merit.

Armstrong maintains in Proposition IV the State’s evidence was insufficient to establish he provided an incorrect address to his probation officer. The burden of proof is that the alleged probation violations must be proven by a preponderance of the evidence. Tilden, 2013 OK CR 10, I 5, 306 P.3d at 556. A preponderance of the evidence means the evidence establishes that is more likely than not the alleged probation violations occurred. Hammon U. State, 2000 OK CR 7, I 46, 999 P.2d 1082, 1094. The record is sufficient to establish it was more likely than not Armstrong provided a false address. Id. Proposition IV is without merit.

Armstrong’s sixth claim is he was improperly revoked for failing to provide proof of employment which was not alleged in the State’s petition to revoke. When asked if Armstrong had provided proof of employment his probation officer responded No. He never had employment. Appellant maintains this single mention of Armstrong’s unemployment during the revocation hearing is an error that changed the outcome of this revocation hearing. Appellant made no objection at the hearing. He complains for the first time in this proposition. Appellant has therefore waived appellate review of the issue for all but plain error.

To be entitled to relief under the plain error doctrine, Appellant must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. See Simpson U. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694-95, 698; 20 O.S. § 3001.1. If these elements are met, this Court will correct plain error only if the error seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Simpson, 1994 OK CR 40, at 30, 876 P.2d at 701 (citing United States U. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993); 20 O.S.2011, § 3001.1. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. In the present case, Appellant has not met the plain error burden. Appellant has not established any error occurred and even if we assume error was present he has not established the error affected the outcome of the proceeding. Simpson, 1994 OK CR 40, II 3, 11, 23, 876 P.2d at 694-95, 698; 20 O.S. § 3001.1. Proposition VI is without merit.

In his final proposition, Armstrong claims the trial court abused its discretion when it revoked a portion of his suspended sentence instead of simply requiring Armstrong to complete substance abuse treatment. Armstrong cites no authority supporting his position. The evidence was more than sufficient to establish it was more likely than not Armstrong violated the rules and conditions of his probation as alleged in the State’s petition to revoke. Hammon, 2000 OK CR 7, I 5 46, 999 P.2d at 1094. The uncontested evidence established Armstrong committed at least two violations of probation by failing to report to his probation officer as ordered and failing multiple drug tests. Armstrong took the stand and admitted he had violated his rules and conditions of probation. A suspended sentence is a matter of grace. Hagar v. State, 1999 OK CR 35, 11 8-10, 990 P.2d 894, 898; Demry U. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147. The decision to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse thereof. Jones U. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. In this case, the State filed a petition setting forth the grounds for the revocation, and competent evidence justifying the revocation was presented to the trial court establishing the requirements necessary to revoke Appellant’s suspended sentence in full. 22 O.S. § 991b(A). Appellant has not shown an abuse of discretion. Jones, supra. Proposition VII is without merit.

DECISION

The revocation of Appellant’s suspended sentence in Woodward County District Court Case No. CF-2017-5 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 the filing of this decision.

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Footnotes:

  1. See 22 O.S. § 991b(D).
  2. McCowan v. State, 1987 OK CR 101, 14, 737 P.2d 954, 955.
  3. Mack v. State, 1981 OK CR 160, 14, 637 P.2d 1262, 1264.
  4. Powell v. State, 1987 OK CR 238, 3-4, 745 P.2d 1180, 1181-82.
  5. Tilden v. State, 2013 OK CR 10, 10, 306 P.3d 554, 557 (citing McQueen v. State, 1987 OK CR 162, 2, 740 P.2d 744, 745).
  6. Tilden, 2013 OK CR 10, 5, 306 P.3d at 556.
  7. Hammon v. State, 2000 OK CR 7, 46, 999 P.2d 1082, 1094.
  8. See Simpson v. State, 1994 OK CR 40, 2, 876 P.2d 690, 694-95, 698; 20 O.S. § 3001.1.
  9. Simpson, 1994 OK CR 40, 30, 876 P.2d at 701 (citing United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993); 20 O.S. 2011, § 3001.1).
  10. Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923.
  11. Hammon, 2000 OK CR 7, 5, 46, 999 P.2d at 1094.
  12. Hagar v. State, 1999 OK CR 35, 8-10, 990 P.2d 894, 898.
  13. Demry v. State, 1999 OK CR 31, 12, 986 P.2d 1145, 1147.
  14. Jones v. State, 1988 OK CR 20, 8, 749 P.2d 563, 565.
  15. 22 O.S. § 991b(A).
  16. Jones, supra.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1713 - Possession/Concealing Stolen Property
  • Okla. Stat. tit. 22 § 991b(D) - Revocation of Suspended Sentence
  • Okla. Stat. tit. 20 § 3001.1 - Plain Error Doctrine
  • Okla. Stat. tit. 22 § 991b(A) - Grounds for Revocation

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:

  • McCowan v. State, 1987 OK CR 101, I 4, 737 P.2d 954, 955
  • Mack v. State, 1981 OK CR 160, I 4, 637 P.2d 1262, 1264
  • Powell v. State, 1987 OK CR 238, II 3-4, 745 P.2d 1180, 1181-82
  • Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557
  • McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745
  • Hammon v. State, 2000 OK CR 7, I 46, 999 P.2d 1082, 1094
  • Hagar v. State, 1999 OK CR 35, II 8-10, 990 P.2d 894, 898
  • Demry v. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147
  • Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
  • Simpson v. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694-95, 698
  • Simpson v. State, 1994 OK CR 40, at 30, 876 P.2d at 701
  • United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993)

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