Matthew Carl Eddings v The State Of Oklahoma

RE 2014-0536

Filed: Aug. 4, 2015

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Matthew Carl Eddings appealed his conviction for possession of a controlled substance and driving under the influence. Conviction and sentence were upheld by the court. Judge Smith concurred, while Judge Lewis also concurred.

Decision

The revocation of Appellant's suspended sentence in Ottawa County District Court Case No. CF-2006-404 is AFFIRMED, but the matter is REMANDED to the District Court to modify the Judgment and Sentence to exclude any requirement for post-imprisonment supervision. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there an abuse of discretion by the trial court in revoking Mr. Eddings' suspended sentence based solely on his failure to pay restitution, court costs, assessments, and child support?
• Did the State fail to prove, by a preponderance of the evidence, that Mr. Eddings violated the rules and conditions of his probation?
• Was the revocation of Mr. Eddings' remaining suspended sentence barred by res judicata due to the same facts being presented in the prior hearings?
• Did the trial court lack legal authority to modify Mr. Eddings' sentence by adding one year of supervision after revoking the suspended sentence?

Findings

• the court did not err
• evidence was sufficient
• res judicata did not apply
• the court erred in imposing post-imprisonment supervision

RE 2014-0536

Aug. 4, 2015

Matthew Carl Eddings

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE:

Appellant, Matthew Carl Eddings, pled guilty June 15, 2007, in Ottawa County District Court Case No. CF-2006-404 to Count 1 – Possession of Controlled Substance-Oxycodone, a felony, and Count 2 – Driving a Motor Vehicle While Under the Influence of Drugs, a misdemeanor. On Count 1 he received a five year deferred sentence except for ten days to be served in the Ottawa County Jail, with rules and conditions of probation, a $1,000.00 fine, costs and assessments. On Count 2 he received a one year suspended sentence to run concurrent with Count 1, a $500.00 fine, costs and assessments.

On May 22, 2008, the State filed a motion to accelerate Appellant’s deferred sentence on Count 1 and a motion to revoke Appellant’s suspended sentence on Count 2. The court granted the State’s motion to withdraw the motion to revoke suspended sentence on Count 2 on December 5, 2008, and Appellant stipulated to the State’s motion to accelerate on Count 1. Appellant was sentenced to ten years on Count 1, all suspended, with all of the previously ordered fines, costs and restitution and with rules and conditions of probation.

On April 26, 2010, the State filed a motion to revoke Appellant’s suspended sentence alleging Appellant was in arrears in paying supervision fees, fines, costs, restitution, and child support, tested positive on a UA for drugs, failed to provide proof of a drug and alcohol assessment, and failed to report as directed. Appellant stipulated to the State’s motion to revoke on June 10, 2010, and pursuant to plea negotiations, five years of Appellant’s suspended sentence was revoked on Count 1 with the balance to remain suspended.

The State filed a motion to revoke Appellant’s remaining suspended sentence on March 6, 2014, alleging Appellant was in arrears paying fines and costs and in paying child support. Following a revocation hearing on June 18, 2014, the Honorable William Culver, Special Judge, found Appellant violated the rules and conditions of probation and revoked Appellant’s suspended sentence in full on Count 1 with credit for time served.

Appellant appeals the revocation of his suspended sentence raising the following propositions of error:

1. The trial court abused its discretion by revoking Mr. Eddings’ suspended sentence based solely on his failure to pay restitution, court costs, assessments, and child support.
2. The State failed to prove, by a preponderance of the evidence, that Mr. Eddings violated the rules and conditions of his probation.
3. Revocation of the remainder of Mr. Eddings’ suspended sentence on the same facts of the prior acceleration hearing and revocation hearing in this same case was barred by res judicata.
4. The trial court was without legal authority to modify Mr. Eddings’ sentence by adding one year supervision after revoking the suspended sentence.

We affirm the order of the District Court revoking Appellant’s suspended sentence but, finding merit to Appellant’s fourth proposition of error, remand the matter to the District Court for further proceedings as set forth below.

1. The State has the burden to prove by a preponderance of the evidence that the probationer has failed to make restitution. Once the State has met this burden, the burden shifts to the probationer to show that the failure to pay was not willful, or that Appellant made a good faith effort to make restitution. If the probationer presents evidence to show non-payment was not willful, the hearing court must make a finding of fact regarding the probationer’s ability to pay. McCaskey v. State, 1989 OK CR 63, IT 4, 781 P.2d 836, 837. In this case Appellant has not shown that his failure to pay was not willful or that he made a good faith effort to make the required payments. Appellant has not shown an abuse of discretion.

2. Violations of a suspended sentence need only be shown by a preponderance of the evidence. Fleming v. State, 1988 OK CR 162, IT 4, 760 P.2d 206, 207. This Court has defined a preponderance of the evidence as that which is of greater weight and, further, which could have been deemed more probably true than not. See Cooper V. State, 1979 OK CR 85, IT 13, 599 P.2d 419, 422-423, Henderson v. State, 1977 OK CR 238, 4-5, 568 P.2d 3 297, 297-298. Appellant has not shown an abuse of discretion. He admitted that he had not made the required payments for more than a year and he failed to show that his failure to pay was not willful or that he made a good faith effort to pay.

3. The doctrine of res judicata, the application of which is questionable in a criminal proceeding of this nature¹, does not apply where there are new facts which did not exist at the time of the prior judgment. Marutzky v. State, 1973 OK CR 398, IT 8, 514 P.2d 430, 432. In this case the State proved new facts at this revocation hearing which were not part of the prior revocation hearing or acceleration hearing. This proposition of error has no merit.

4. Section 991a-21 of Title 22 applies to those persons convicted and sentenced on or after November 1, 2012. Section 991a-21 requires the trial court to include a term of post-imprisonment supervision in the sentence of any person who is convicted of a felony and sentenced to a term of confinement with the Department of Corrections. In this case the trial court ordered Appellant to serve a term of post-imprisonment supervision for a period of one year. Appellant argues that he is not subject to the provisions of Section 991a-21 of Title 22 and the State agrees, as the Judgment and Sentence in this case was entered on December 5, 2008. We agree that this proposition of error has merit.

DECISION

The revocation of Appellant’s suspended sentence in Ottawa County District Court Case No. CF-2006-404 is AFFIRMED, but the matter is REMANDED to the District Court to modify the Judgment and Sentence to exclude any requirement for post-imprisonment supervision. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. McCaskey v. State, 1989 OK CR 63, IT 4, 781 P.2d 836, 837.
2. Fleming v. State, 1988 OK CR 162, IT 4, 760 P.2d 206, 207.
3. Cooper v. State, 1979 OK CR 85, IT 13, 599 P.2d 419, 422-423.
4. Henderson v. State, 1977 OK CR 238, 4-5, 568 P.2d 297, 297-298.
5. Marutzky v. State, 1973 OK CR 398, IT 8, 514 P.2d 430, 432.
6. Section 991a-21 of Title 22.
7. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Possession of Controlled Substance
• Okla. Stat. tit. 47 § 11-801 (2011) - Driving a Motor Vehicle While Under the Influence of Drugs
• Okla. Stat. tit. 22 § 991a-21 (2011) - Post-Imprisonment Supervision
• Okla. Stat. tit. 22 § 18 (2015) - Rules of the Oklahoma Court of Criminal Appeals

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:

• McCaskey v. State, 1989 OK CR 63, I 4, 781 P.2d 836, 837
• Fleming v. State, 1988 OK CR 162, I 4, 760 P.2d 206, 207
• Cooper v. State, 1979 OK CR 85, I 13, 599 P.2d 419, 422-423
• Henderson v. State, 1977 OK CR 238, I 4-5, 568 P.2d 297, 297-298
• Marutzky v. State, 1973 OK CR 398, I 8, 514 P.2d 430, 432