Bobby Lee Ruppel, Jr. v State Of Oklahoma

F-2018-513

Filed: Jun. 27, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Bobby Lee Ruppel, Jr. appealed his conviction for Assault with a Dangerous Weapon and Robbery with a Weapon. Conviction and sentence were both 25 years in prison for each count, meaning he has to serve them one after the other. Judge Hudson affirmed the conviction but said that the court mistakenly ordered Ruppel to pay restitution without proper proof of the victim's losses; this part was sent back to the lower court to fix. Judge Lewis, Judge Kuehn, and Judge Lumpkin agreed with the outcome, but Judge Rowland only partially agreed.

Decision

The Judgments and Sentences of the District Court are AFFIRMED. The District Court's restitution order is VACATED and the case is REMANDED to the District Court for a proper determination on the issue of loss in accordance with this opinion. 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 delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the trial court in imposing restitution without following mandatory statutory procedures?
• Did the appellant receive an excessive sentence based on the facts and circumstances of the case?

Findings

• the court erred in imposing restitution without following the mandatory statutory procedures
• the restitution order was vacated and the case remanded for proper determination of loss
• the sentence was not excessive and the trial court did not abuse its discretion

F-2018-513

Jun. 27, 2019

Bobby Lee Ruppel, Jr.

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Appellant, Bobby Lee Ruppel, Jr., was tried and convicted in a nonjury trial in Lincoln County District Court, Case No. CF-2016-325A, of Count 1: Assault with a Dangerous Weapon, After Two or More Felony Convictions, in violation of 21 O.S.2011, § 645; and Count 2: Robbery with a Weapon, After Two or More Felony Convictions, in violation of 21 O.S.2011, § 801. The Honorable Cynthia Ferrell Ashwood, District Judge, presided at trial. At a separate sentencing proceeding, Judge Ashwood sentenced Ruppel to twenty-five (25) years imprisonment in each of Counts 1 and 2.1

Ruppel must serve 85% of his Count 2 sentence before he is eligible for parole. Both sentences were ordered to run consecutively to each other. The court further ordered Ruppel to pay restitution in the amount of $9,757.49. Ruppel now appeals, raising two (2) propositions of error before this Court:

I. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING RESTITUTION WITHOUT FOLLOWING THE MANDATORY STATUTORY PROCEDURES GOVERNING RESTITUTION ORDERS, IN VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS UNDER THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. II, § 7, OF THE OKLAHOMA CONSTITUTION; and

II. BASED ON THE FACTS AND CIRCUMSTANCES OF THIS CASE, APPELLANT RECEIVED AN EXCESSIVE SENTENCE THAT SHOULD BE MODIFIED.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find Ruppel’s Judgments and Sentences should be AFFIRMED, but the matter must be remanded to the District Court for a proper proceeding on the determination of restitution.

Proposition I: Pursuant to 22 O.S.2011, § 991f(C), a district court shall order a convicted defendant to pay restitution if the crime victim suffered compensable injury, such as incurred medical expenses and loss of wages. The amount may be up to three times the amount of economic loss suffered as a direct result of the defendant’s criminal act. 22 O.S.2011, § 991f(A)(1). Although a defendant may be ordered to pay restitution for economic loss as defined by Section 991f, an order of restitution may only include those losses which are determinable with reasonable certainty. 22 O.S.2011, § 991a(A)(1)(a). A ‘reasonable certainty’ must be more than an approximation, estimate, or guess. Inherent in the definition of reasonable certainty is the requirement of proof of the loss to the victim. Logsdon v. State, 2010 OK CR 7, ¶ 9, 231 P.3d 1156, 1162 (internal citations omitted). The record must reflect a basis for the trial judge’s determination of a victim’s loss or the decision will be deemed arbitrary and found to violate Section 991a. Honeycutt v. State, 1992 OK CR 36, ¶ 33, 834 P.2d 993, 1000. Title 22 O.S.2011, § 991f(E)(3) requires the district attorney to provide the court an official request for restitution form, completed and signed by the victim, which includes all invoices, bills, receipts, and other evidence of injury, loss of earnings and out-of-pocket loss. This form shall be filed with any victim impact statement to be included in the judgment and sentence.

Despite Ruppel’s failure to object to the manner or amount of restitution awarded at sentencing, upon review we find Ruppel is entitled to relief under the plain error doctrine. The State merely advised the trial court that the restitution owed to the victim totaled $9,757.49. The record does not contain testimony regarding the victim’s monetary losses, written documents showing the amount of economic injury, or a restitution claim form to support the court’s restitution order. We thus cannot conclude from this record that the restitution amount ordered by the district court was determined with reasonable certainty. This is plain error which requires the restitution order be vacated and the case remanded to the district court for a proper determination on the issue of the victim’s loss. Relief is thus granted for Proposition I.

Notably, the State concedes the district court’s restitution order must be vacated as the court failed to follow the governing statutory procedures.

Proposition II: Under the facts and circumstances of this case, Appellant’s sentence is not so excessive as to shock the conscience of the Court. There is no absolute constitutional right or statutory right to receive concurrent sentences. The decision to run a defendant’s sentences concurrently or consecutively rests within the sound discretion of the trial court. Sentences are to run consecutively unless the trial judge, in his or her discretion, rules otherwise. As with other decisions left to the trial court’s discretion, we will not interfere with that decision unless an abuse of discretion can be shown. Here, the judge exercised her discretion and upon review, we find her exercise of this discretion was not an abuse of discretion. Proposition II is denied.

DECISION

The Judgments and Sentences of the District Court are AFFIRMED. The District Court’s restitution order is VACATED and the case is REMANDED to the District Court for a proper determination on the issue of loss in accordance with this opinion.

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 delivery and filing of this decision.

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Footnotes:

1. 1 Under 21 O.S.2011, § 13.1, Ruppel must serve 85% of his Count 2 sentence before he is eligible for parole.
2. 2 The court additionally ordered that Ruppel's sentences run consecutive to "any other sentences [Ruppel has] in any other cases."
3. 3 See Baird U. State, 2017 OK CR 16, I 25, 400 P.3d 875, 883; Levering U. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395; 20 O.S.2011, § 3001.1.
4. 4 Proposition II: Under the facts and circumstances of this case, Appellant's sentence is not SO excessive as to shock the conscience of the Court. Baird, 2017 OK CR 16, I 40, 400 P.3d at 886; Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149.
5. 5 There is no absolute constitutional right or statutory right to receive concurrent sentences. Pickens U. State, 1993 OK CR 15, "I 41, 850 P.2d 328, 338; 22 O.S.2011, § 976.
6. 6 21 O.S.2011, § 61.1; Riley U. State, 1997 OK CR 51, I 20, 947 P.2d 530, 534-35.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 645 (2011) - Assault with a Dangerous Weapon
• Okla. Stat. tit. 21 § 801 (2011) - Robbery with a Weapon
• Okla. Stat. tit. 21 § 13.1 (2011) - Sentencing Calculation for Parole
• Okla. Stat. tit. 22 § 991f(C) (2011) - Restitution Orders
• Okla. Stat. tit. 22 § 991f(A)(1) (2011) - Restitution for Economic Loss
• Okla. Stat. tit. 22 § 991a(A)(1)(a) (2011) - Reasonable Certainty for Restitution
• Okla. Stat. tit. 22 § 991f(E)(3) (2011) - Official Request for Restitution Form
• Okla. Stat. tit. 22 § 3001.1 (2011) - Appeal Rights on Sentencing
• Okla. Stat. tit. 22 § 976 (2011) - Concurrent and Consecutive Sentences
• Okla. Stat. tit. 21 § 61.1 (2011) - Discretion in Sentencing

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:

• Baird v. State, 2017 OK CR 16, I 25, 400 P.3d 875, 883
• Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395
• Logsdon v. State, 2010 OK CR 7, I 9, 231 P.3d 1156, 1162
• Honeycutt v. State, 1992 OK CR 36, I 33, 834 P.2d 993, 1000
• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149
• Pickens v. State, 1993 OK CR 15, "I 41, 850 P.2d 328, 338
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
• Riley v. State, 1997 OK CR 51, I 20, 947 P.2d 530, 534-35