Darmaecia Brendette Hill v The State Of Oklahoma

RE-2017-1287

Filed: Jun. 6, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Darmaecia Brendette Hill appealed her conviction for violating probation. The court revoked three and a half years of her suspended sentences. Judge Stephen R. Kistler agreed with this decision. The dissenting opinion was not recorded.

Decision

The order of the District Court of Payne County revoking three and one-half years of Appellant's suspended sentences in Case Nos. CF-2014-506 and CF-2015-773 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 jurisdiction for the district court to extend Ms. Hill's original sentence by the addition of post-imprisonment supervision?
• Did the district court's revocation of 3.5 years of Appellant's suspended sentences constitute an excessive punishment under the facts of the case?

Findings

• the court did not err in imposing a twelve month term of post-confinement supervision
• the decision to revoke three and one-half years of Appellant's suspended sentences was not an abuse of discretion

RE-2017-1287

Jun. 6, 2019

Darmaecia Brendette Hill

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Appellant, Darmaecia Brendette Hill, appeals from the revocation of three and one-half years of her suspended sentences in Case Nos. CF-2014-506 and CF-2015-773 in the District Court of Payne County, by the Honorable Stephen R. Kistler, Associate District Judge.

In Case No. CF-2014-506, Appellant entered a plea of guilty and was convicted of Count 1: Child Neglect, felony; and Count 2: Unlawful Possession of Marijuana, misdemeanor. She was sentenced to a term of seven years, with all but the first 120 days suspended on Count 1, and a term of one year, suspended, on Count 2, with the sentences to run concurrently with each other and with her sentence in Case No. CF-2015-773.

In Case No. CF-2015-773, Appellant entered a plea of guilty and was convicted of Count 1: Unlawful Possession of Controlled Dangerous Substance, Methamphetamine, felony. She was sentenced to a term of seven years, with all but the first 120 days suspended, and ordered to run concurrently with her sentences in Case No. CF-2014-506.

On June 22, 2016, the State filed its first motion to revoke Appellant’s suspended sentences alleging she violated probation by testing positive for Methamphetamine on 4/25/16, 5/5/16, 6/3/16 and 6/6/16; by testing positive for Amphetamine on 6/6/16; and by failing to conform to regulations of GPS monitoring. Judge Kistler revoked ninety days of Appellant’s suspended sentences.

On November 8, 2016, the State filed in both cases a second motion to revoke Appellant’s suspended sentences alleging she violated probation by testing positive for alcohol on 9/26/16, 9/28/16, and 10/5/16; and by committing the new offense of Count 1: Domestic Assault and Battery By Strangulation, as charged in Payne County District Court Case No. CF-2016-782.

On June 29, 2017, the State filed a third motion to revoke Appellant’s suspended sentences that restated the violations alleged in the first and second motions, adding only that she continued to violate GPS monitoring conditions.

On July 24, 2017, the State filed an amended third motion to revoke Appellant’s suspended sentences, restating allegations in the previous motions, and adding violations that Appellant committed the new offense of Public Intoxication, as charged in Payne County District Court Case No. CM-2017-1122, and that she had failed to maintain a stable address and failed to report change(s) of address.

On July 25, 2017, the revocation hearing was held before Judge Kistler. At the start of the hearing, the State announced that it was striking the alleged violations of probation that were included in the first motion to revoke, and that were the basis of the revocation of ninety days of Appellant’s suspended sentence in July of 2016. The State also announced that it would not put on evidence of the alleged violation Domestic Assault and Battery By Strangulation because of an uncooperative witness.

The State first called Jarod Knowles, a Stillwater police officer, who testified about Appellant’s public intoxication incident. Dee Miller, a DOC administrator for the Division of Community Sentencing, testified about Appellant’s positive tests for drugs and alcohol; her violations of GPS monitoring; and her failure to maintain a stable address and to report changes of address.

In defense, Appellant’s mother testified about her mental disorders that affected her actions. Appellant also testified about her need for treatment and justified some of her actions that were alleged as violations. After hearing the evidence and arguments, Judge Kistler convicted Appellant of Public Intoxication and sentenced her to thirty days in the county jail. Judge Kistler found Appellant violated probation as alleged, but continued sentencing for preparation of a pre-sentence investigation report to identify programs appropriate for Appellant both inside and outside of prison.

On December 1, 2017, the sentencing hearing was held before Judge Kistler. The State called Kim Evans, a team supervisor with the Stillwater Probation and Parole office, who had reviewed the Pre-Sentence Investigation Report. Evans testified about the contents of the report and corroborated its recommendation that Appellant’s suspended sentences be revoked. Miller again testified about Appellant’s violations, treatments, and lack of success throughout her probation. Miller agreed that the only available option is revocation of Appellant’s suspended sentences.

Appellant testified about events in her past that contributed to her problems. She asked to be sent to Eagle Ridge treatment facility rather than being revoked. Appellant’s mother testified about Appellant’s living arrangements and the reasons for those arrangements. The mother testified that Appellant was pregnant and that prison would not be best for her and her delivery.

After hearing the evidence and arguments, Judge Kistler revoked three and one-half years of her suspended sentences, with the balances to remain suspended. Judge Kistler also ordered that, upon her release from confinement, Appellant would serve a twelve month term of post-confinement supervision with DOC probation and parole.

Appellant appeals asserting two propositions of error:

PROPOSITION I: THE DISTRICT COURT WAS WITHOUT JURISDICTION TO EXTEND MS. HILL’S ORIGINAL SENTENCE BY THE ADDITION OF POST-IMPRISONMENT SUPERVISION.

PROPOSITION II: THE DISTRICT COURT’S REVOCATION OF 31/2 YEARS OF APPELLANT’S SUSPENDED SENTENCES WAS EXCESSIVE UNDER THE FACTS OF THIS CASE AND SHOULD BE FAVORABLY MODIFIED.

ANALYSIS

In Proposition I, Appellant contends that Judge Kistler improperly extended the original term of her sentences in these cases by imposing the twelve month term of post-confinement supervision with DOC probation and parole, starting after she is released from the three and one-half year partial revocation of her suspended sentences. We find Appellant’s arguments are without merit because the twelve month term of post-confinement supervision falls within the remaining balance of Appellant’s suspended sentences, and therefore does not extend the term of her original sentences.

Appellant was originally sentenced to terms of seven years, with the first 120 days to serve and approximately six years and eight months suspended. Judge Kistler previously revoked ninety days of Appellant’s suspended sentences, leaving approximately six years and five months suspended. Judge Kistler’s revocation of three and one-half years of Appellant’s suspended sentences leaves a balance of approximately two years and eleven months. The twelve month term of post-confinement supervision falls well within that two year and eleven month balance of the original term of Appellant’s sentences. Section 991a of Title 22 allows courts to impose such conditions of probation at the time of sentencing or at any time during the suspended sentence. 22 O.S.Supp.2014, § 991a(A)(1).

Appellant cites Friday v. State, 2016 OK CR 16, 387 P.3d 928; and Wells v. State, 2016 OK CR 28, 387 P.3d 966, to argue that the District Court is not authorized, pursuant to 22 O.S.Supp.2012, § 991a-21, to include in the order revoking her suspended sentence a term of post-imprisonment supervision. However, unlike Appellant’s partial revocation, Friday and Wells both involve revocations in full, which eliminates the use of Section 991a to impose post-imprisonment supervision during the suspended sentence. 22 O.S.Supp.2014, § 991a(A)(1). Appellant has therefore failed to show that the District Court was without authority in this case to impose post-imprisonment supervision during the remaining terms of Appellant’s original suspended sentences. Proposition I is denied.

The decision of the trial court to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. 22 O.S.Supp.2016, § 991b; Jones v. State, 1988 OK CR 20, IT 8, 749 P.2d 563, 565. Judge Kistler had more than sufficient evidence to show that Appellant committed repeated violations of the terms and conditions of her probation. The record shows that Appellant has been given numerous opportunities to remain on probation. Judge Kistler’s decision to revoke three and one-half years of Appellant’s suspended sentences was not an abuse of discretion. Proposition II is denied.

DECISION

The order of the District Court of Payne County revoking three and one-half years of Appellant’s suspended sentences in Case Nos. CF-2014-506 and CF-2015-773 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. 22 O.S.Supp.2014, § 991a(A)(1).
2. 22 O.S.Supp.2012, § 991a-21.
3. 22 O.S.Supp.2016, § 991b.
4. Jones v. State, 1988 OK CR 20, IT 8, 749 P.2d 563, 565.
5. Friday v. State, 2016 OK CR 16, 387 P.3d 928.
6. Wells v. State, 2016 OK CR 28, 387 P.3d 966.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Child Neglect
• Okla. Stat. tit. 21 § 422 (2011) - Domestic Assault and Battery By Strangulation
• Okla. Stat. tit. 21 § 643 (2011) - Public Intoxication
• Okla. Stat. tit. 22 § 991a (2014) - Conditions of probation
• Okla. Stat. tit. 22 § 991b (2016) - 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:

• Friday v. State, 2016 OK CR 16, 387 P.3d 928
• Wells v. State, 2016 OK CR 28, 387 P.3d 966
• Jones v. State, 1988 OK CR 20, 749 P.2d 563