Dustin Ardell Cruce v The State Of Oklahoma

RE-2018-644

Filed: Apr. 25, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Dustin Ardell Cruce appealed his conviction for violating the conditions of his probation. His conviction and sentence were upheld by the court. Judge Lawrence W. Parish had previously given him a suspended sentence, which he lost because he didn't pay required fees and had problems related to new criminal charges, although those charges were dropped as part of a deal. The court decided that the evidence showed he didn't follow the rules of his probation, and since he didn't provide enough proof of trying to make payments, they took away part of his suspended sentence. In their opinion, the judges agreed with the trial court's decision except for one judge who dissented.

Decision

The revocation of Appellant's suspended sentence in Okfuskee County District Court Case No. CF-2016-143 is AFFIRMED.

Issues

• Was there an abuse of discretion by the trial court in revoking the suspended sentence?
• Did the State meet the burden of proof required to revoke the suspended sentence?
• Was there sufficient evidence presented to justify the revocation of the suspended sentence?
• Did Appellant demonstrate sufficient bona fide efforts to make required payments as ordered?

Findings

• the court did not err in revoking Appellant's suspended sentence
• evidence was sufficient to support the revocation of Appellant's suspended sentence
• the court did not abuse its discretion in the decision to revoke
• Appellant did not demonstrate adequate efforts to meet his payment obligations
• the State established the required grounds for revocation

RE-2018-644

Apr. 25, 2019

Dustin Ardell Cruce

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant appeals from the revocation of his suspended sentence in Okfuskee County District Court Case No. CF-2016-143, by the Honorable Lawrence W. Parish. On February 22, 2017, Appellant entered a plea of guilty to Assault With a Dangerous Weapon, in violation of 21 O.S.2011, § 645 (Count 1), Assault and Battery With a Dangerous Weapon, in violation of 21 O.S.2011, § 645, (Count 2), Burglary in the Second Degree, in violation of 21 O.S.2011, § 1435 (Count 3), Knowingly Concealing Stolen Property, in violation of 21 O.S.Supp.2016, § 1713 (Count 4), and Possession of a Controlled Dangerous Substance, in violation of 63 O.S.Supp.2016, § 2-402 (Count 5) in Case No. CF-2016-143. Appellant was convicted and sentenced to ten years imprisonment each for Counts 1 and 2, seven years imprisonment for Count 3, and five years imprisonment each for Counts 4 and 5. Judge Parish suspended the execution of Appellant’s sentences in whole and ordered them served concurrently.

On October 31, 2017, the State filed a Motion to Revoke Suspended Sentence alleging Appellant failed to pay reimbursement fees and committed the new crime of Domestic Abuse – Assault and Battery Against a Pregnant Woman as alleged in Okfuskee County District Court Case No. CM-2017-126. A hearing was held on the State’s motion to revoke on May 2, 2018. At the hearing, the parties announced the State would not pursue revocation based on the alleged new crime in Case No. CM-2017-126. The State abandoned this alleged violation as part of a plea agreement entered into with Appellant in Case No. CM-2017-126. Pursuant to this agreement, Appellant entered a plea of guilty in Case No. CM-2017-126 on October 6, 2017. As a result, the only alleged probation violation before the trial court at this hearing was Appellant’s failure to pay reimbursement fees as ordered. Following this revocation hearing, Judge Parish revoked five years of Appellant’s remaining suspended sentence.

Appellant claims the trial court abused its discretion by refusing to allow Appellant to remain in the community. Appellant maintains his performance on probation in this case required a more lenient or more just result and this revocation did not promote the interests of justice. The above quoted arguments are from Sparks v. State and Livingston v. State and neither case requires such a result in a revocation appeal. Sparks v. State, 1987 OK CR 247, ¶ 7-8, 745 P.2d 751, 753; Livingston v. State, 1990 OK CR 40, ¶ 10-11, 795 P.2d 1055, 1058. In a revocation hearing the State is only required to prove violations by a preponderance of the evidence. 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). Here, Appellant stipulated to violating the rules and conditions of his probation by failing to pay reimbursement fees as ordered. In Winbush, this Court noted once the prosecution establishes a probationer has violated rules and conditions of probation by failing to make ordered payments the burden is then on the probationer to ‘demonstrate’ sufficient bona fide efforts to make required payments have been made. Winbush v. State, 2018 OK CR 38, ¶ 11, 433 P.3d 1275, 1279 (citing Bearden v. Georgia, 461 U.S. 660, 660-61 (syllabus b), 670, 671, 673 (fn.12), 103 S.Ct. 2064, 2066 (syllabus b), 2071-72, 2072, 2073 (fn.12), 76 L.Ed.2d 221, 225 (syllabus b), 231-33, 233 (fn. 12) (1983). Appellant presented no such evidence to the trial court in this case, although he did inform the court that he was working but had not yet been able to pay any of his earnings toward these obligations.

A suspended sentence is a matter of grace. Hagar v. State, 1999 OK CR 35, ¶ 8, 990 P.2d 894, 897; Demry v. State, 1999 OK CR 31, ¶ 12, 986 P.2d 1145, 1147. The State must only prove one violation of probation in order to revoke Appellant’s suspended sentence in full. Tilden, 2013 OK CR 10, ¶ 10, 306 P.3d at 557. Judge Parish only revoked half of Appellant’s remaining suspended sentence. 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 v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565. In this case, the State filed a motion 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.

DECISION

The revocation of Appellant’s suspended sentence in Okfuskee County District Court Case No. CF-2016-143 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. 21 O.S.2011, § 645
2. 21 O.S.2011, § 645
3. 21 O.S.2011, § 1435
4. 21 O.S.Supp.2016, § 1713
5. 63 O.S.Supp.2016, § 2-402
6. Okla. Stat. tit. 22 § 991b(A)
7. Sparks U. State, 1987 OK CR 247, II 7-8, 745 P.2d 751, 753
8. Livingston U. State, 1990 OK CR 40, 19 10-11, 795 P.2d 1055, 1058
9. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557
10. McQueen U. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745
11. Winbush v. State, 2018 OK CR 38, I 11, 433 P.3d 1275, 1279
12. Bearden U. Georgia, 461 U.S. 660 (1983)
13. Hagar U. State, 1999 OK CR 35, I 8, 990 P.2d 894, 897
14. Demry U. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147
15. Jones U. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 645 - Assault with a Dangerous Weapon
• Okla. Stat. tit. 21 § 1435 - Burglary in the Second Degree
• Okla. Stat. tit. 21 § 1713 - Knowingly Concealing Stolen Property
• Okla. Stat. tit. 63 § 2-402 - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 22 § 991b(A) - Revocation of Suspended Sentences

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:

• Sparks U. State, 1987 OK CR 247, II 7-8, 745 P.2d 751, 753
• Livingston U. State, 1990 OK CR 40, 19 10-11, 795 P.2d 1055, 1058
• Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557
• McQueen U. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745
• Winbush v. State, 2018 OK CR 38, I 11, 433 P.3d 1275, 1279
• Hagar U. State, 1999 OK CR 35, I 8, 990 P.2d 894, 897
• Demry U. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147
• Jones U. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565