Bruce Wayne Martin v The State Of Oklahoma

RE-2001-1375

Filed: Oct. 29, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Bruce Wayne Martin appealed his conviction for Grand Larceny. The conviction and sentence were modified to one year in jail. Judge Reta M. Strubhar dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT, the order of the Jackson County District Court revoking Appellant's suspended sentences in Case No. CF-2000-300, Count II of Case No. CF-2000-295, Case No. CF-99-183, CF-99-182 and CF-99-181 is AFFIRMED. The sentence for Grand Larceny in Count I of Case No. CF-2000-295 is hereby REMANDED to the District Court for resentencing pursuant to the directives of this Opinion. IT IS SO ORDERED.

Issues

• Was there cruel and unusual punishment in violation of the Eighth Amendment due to a sentence for Grand Larceny in excess of the statutory maximum?
• Did the trial court err in assessing restitution for crimes with which Appellant was not charged or convicted?
• Was the balance of Appellant's suspended sentences properly revoked based on violations of probation?
• Were the sentences imposed on Appellant excessive and should they be modified?

Findings

• the court erred in sentencing Appellant for Grand Larceny in excess of the statutory maximum
• the error in sentencing for Count I was deemed harmless due to the concurrent sentences
• Appellant's arguments regarding restitution have been waived
• the decision to revoke Appellant's suspended sentences is affirmed
• the sentence for Grand Larceny in Count I of Case No. CF-2000-295 is remanded for resentencing
• the sentences imposed are within the statutory ranges and there was no abuse of discretion

RE-2001-1375

Oct. 29, 2002

Bruce Wayne Martin

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION AFFIRMING REVOCATION OF SUSPENDED SENTENCE

On December 5, 2000, Appellant entered pleas of guilty in Jackson County District Court, to Theft of a Debit Card in Case No. CF-2000-300, Grand Larceny in Case No. CF-2000-295, Count I, Unauthorized Use of a Vehicle in Case No. CF-2000-295, Count II, Obtaining Cash/Merchandise by False Pretenses in Case No. CF-99-183, Uttering a Forged Instrument in Case No. CF-99-182, Count I, Petit Larceny in Case No. CF-99-182, Count II, and Obtaining Cash/Merchandise by False Pretenses in Case No. CF-99-181. The pleas were accepted and Petitioner was sentenced as follows: In CF-2000-300, three (3) years incarceration, with all but the first year suspended, to run concurrently with CF-2000-295 and CF-99-182; in CF-2000-295, Count I, five (5) years imprisonment, with all but the first year suspended, to run concurrently with CF-2000-300 and CF-99-182; in CF-2000-295, Count II, five (5) years imprisonment, with all but the first year suspended, to run concurrently with CF-2000-300 and CF-99-182; in CF-99-183, one (1) year imprisonment to run consecutive to Count I in CF-99-182 and consecutive to CF-99-181; in CF-99-182, Count I, seven (7) years imprisonment, with all but the first year suspended, to run concurrently with CF-2000-295 and CF-2000-300; in CF-99-182, Count II, six (6) months imprisonment to run concurrently with Count I; and in CF-99-181, one (1) year imprisonment to run consecutively to Count I in CF-99-182.

On September 25, 2001, the State filed an Application to Revoke the Suspended Sentences, alleging Appellant had violated the rules and conditions of his suspended sentences. Following a hearing on November 9, 2001, the Honorable Richard B. Darby, District Judge, sustained the application and revoked Appellant’s sentences. It is from that order that Appellant appeals.

Appellant’s first proposition of error contends he was subjected to cruel and unusual punishment in violation of the Eighth Amendment when he received a sentence for Grand Larceny in excess of the statutory maximum. The punishment for Grand Larceny if the property value is less than Five Hundred Dollars ($500.00) is incarceration in the county jail for not more than one (1) year. See 21 O.S.2001, § 1705. Appellant entered a plea of guilty to Grand Larceny for taking and carrying away by stealth $150.00 cash. Accordingly, Appellant asserts his sentence of five (5) years for Grand Larceny in CF-2000-295 is in violation of statute and must be vacated. The State agrees the trial court erred in sentencing Appellant in excess of the statutory maximum. However, the State contends the error is harmless since the trial court ordered the sentences in Count I and Count II of Case No. CF-2000-295 to run concurrently. After a review of the record, we agree.

Specifically, the State alleged Appellant had 1) failed to report to his probation officer as directed, 2) failed to keep his probation officer informed of his current address, and 3) had committed the new offense of Grand Larceny on September 24, 2001. Appellant pled guilty in Count II to Unauthorized Use of a Motor Vehicle. The sentencing range for that crime is one (1) to five (5) years imprisonment. Appellant was sentenced to five (5) years incarceration in Count II. Therefore, while there was error in the sentencing for Count I, there was no prejudice to Appellant because the court still had the authority to revoke four (4) remaining years in Count II. This Court has held that a defendant must show not only error, but also resulting prejudice from that error before reversal is warranted. See Bland v. State, 2000 OK CR 11, 4 P.3d 702, 727. We find no prejudice. Therefore, Appellant’s conviction for Grand Larceny is AFFIRMED, but the sentence in Count I is MODIFIED to one (1) year incarceration in the county jail.

In his second proposition of error, Appellant contends he was improperly assessed restitution for crimes with which he was not charged or convicted. The State argues Appellant’s arguments regarding restitution have been waived. As the State correctly notes, Appellant has not sought to withdraw his guilty pleas, but rather, is only challenging the restitution imposed. Citing Rules 1.2(D)(5)(a)(iv) and 1.2(D)(a)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2002), the State contends that in order to have appealed the restitution imposed, Appellant must have complied with the rules governing regular misdemeanor and felony appeals. We agree. Further, it was Appellant’s employment decision to enter into a plea agreement to pay the total amount of restitution for all claims, in exchange for receiving only one felony bogus check conviction. Finally, pursuant to the revocation order, the balance of Appellant’s suspended sentences was revoked. Thus, Appellant will be incarcerated for eight years.

In his final assignment of error, Appellant contends such sentences are excessive and should be modified. It is well settled that a violation of a suspended sentence need only be proven by a preponderance of the evidence. Robinson v. State, 1991 OK CR 44, Il 3, 809 P.2d 1320, 1322. Further, a District Court’s decision to revoke a suspended sentence is reviewable under the abuse of discretion standard. Crowels v. State, 1984 OK CR 29, I 6, 675 P.2d 451, 453. In the present case, Appellant does not contend insufficient evidence was presented, but rather argues for sympathy. The sentences are within the statutory ranges of punishment, and we find no abuse of discretion.

IT IS THEREFORE THE ORDER OF THIS COURT, the order of the Jackson County District Court revoking Appellant’s suspended sentences in Case No. CF-2000-300, Count II of Case No. CF-2000-295, Case No. CF-99-183, CF-99-182 and CF-99-181 is AFFIRMED. The sentence for Grand Larceny in Count I of Case No. CF-2000-295 is hereby REMANDED to the District Court for resentencing pursuant to the directives of this Opinion.

IT IS SO ORDERED.

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Footnotes:

1. See 21 O.S.2001, § 1705.
2. In addition, Counts I and II in Case No. CF-2000-295 were ordered to run concurrently with CF-99-182 in which Appellant was sentenced to seven (7) years incarceration, with all but the first year suspended.
3. Appellant contends he was charged with one count, not eight counts, of obtaining cash or merchandise by false pretenses, totaling $100.00.
4. Robinson v. State, 1991 OK CR 44, Il 3, 809 P.2d 1320, 1322.
5. Crowels v. State, 1984 OK CR 29, I 6, 675 P.2d 451, 453.
6. for purportedly writing eight other checks, totaling $4,889.60.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1705 - Grand Larceny
• Okla. Stat. tit. 22 § 1.2(D)(5)(a)(iv) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 1.2(D)(a)(i) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 - Sentencing Guidelines
• Okla. Stat. tit. 21 § 1710 - Theft of Services
• Okla. Stat. tit. 47 § 11-801(B)(1) - Traffic Regulations

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:

• Bland v. State, 2000 OK CR 11, 4 P.3d 702, 727
• Robinson v. State, 1991 OK CR 44, 809 P.2d 1320, 1322
• Crowels v. State, 1984 OK CR 29, 675 P.2d 451, 453