Betty Sue Black v The State Of Oklahoma

RE-2008-599

Filed: Apr. 10, 2009

Not for publication

Prevailing Party: Betty Sue Black

Summary

Betty Sue Black appealed her conviction for Obtaining Cash by False Pretenses. Conviction and sentence: 10 years imprisonment, with the first year served and the rest suspended, along with a $500 fine and $14,272 restitution. Judge Lumpkin dissented. Betty entered a plea and was sentenced, but later failed to pay restitution due to financial hardship and disabilities. The State claimed she violated her probation by not paying, and the judge revoked two years of her suspended sentence. Betty argued the failure to pay was not willful, and the appeal court agreed, finding the revocation was not justified. They reversed the decision and directed the dismissal of the State's motion.

Decision

The June 17, 2008, order of revocation entered in the District Court of Bryan County, Case No. CF-2007-520, is REVERSED and the District Court is directed to DISMISS that Motion to Revoke Suspended Sentence filed on January 18, 2008. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), MANDATE IS ORDERED ISSUED upon the filing of this decision.

Issues

• Was there an abuse of discretion in revoking Ms. Black's probation based solely on her failure to pay restitution, when the evidence failed to show the failure was willful?
• Should Ms. Black be deemed to have met her financial obligations due to improper incarceration based solely on her failure to pay and the demonstrated manifest hardship the obligations impose?
• Was the revocation hearing held within the 20 days required by statute, and did the absence of representation by counsel affect the validity of Ms. Black's waiver of this requirement?

Findings

• the court erred in revoking Ms. Black's probation based solely on her failure to pay restitution, as the evidence failed to show the failure was willful.
• the claims regarding manifest hardship and inability to pay restitution are outside the scope of this revocation appeal.
• the issue concerning the twenty-day rule is rendered moot due to the reversal of the revocation order.

RE-2008-599

Apr. 10, 2009

Betty Sue Black

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

In the District Court of Bryan County, Case No. CF-2007-520, Appellant, Betty Sue Black, while represented by counsel, entered a plea of nolo contendere to a felony count of Obtaining Cash by False Pretenses. Pursuant to a plea agreement, the Honorable Mark R. Campbell, District Judge, sentenced Appellant to ten (10) years imprisonment, with all but the first year suspended under written conditions of probation. Judge Campbell also sentenced Appellant to a $500.00 fine and to $14,272.00 in restitution to be paid through the District Attorney’s Office at the rate of $200.00 per month beginning [the] 5th day of the month after release. (O.R. 22.) Appellant was released from the executed one-year portion of her sentence on December 23, 2007, making her first restitution payment due on January 5, 2008. On January 18, 2008, the State filed a Motion to Revoke Suspended Sentence that alleged only one probation violation: Defendant failed to pay restitution as ordered. (O.R. 25.) Following an evidentiary hearing on this Motion, Judge Campbell found that Appellant had willfully failed to comply with the terms and conditions of her probation, and that she has failed to pay restitution as directed. (Tr. 18.) On June 17, 2008, Judge Campbell revoked a two-year portion of the suspension order as punishment for the above violation. Appellant now appeals this final revocation order and raises three propositions of error:

I. The trial court abused its discretion in revoking Ms. Black’s probation based solely on her failure to pay restitution, when the evidence failed to show the failure was wilful.

II. Ms. Black should be deemed to have met her financial obligations in this case due to her improper incarceration based solely upon her failure to pay, and the demonstrated manifest hardship the obligations impose.

III. The revocation hearing was not held within 20 days as required by statute, and any purported waiver by Ms. Black while unrepresented by counsel cannot cure this statutory violation.

Having reviewed the record in this matter, the Court finds merit under Appellant’s Proposition I requiring reversal of the District Court’s revocation order and dismissal of the State’s Motion to Revoke Suspended Sentence. As previously noted, the only probation violation alleged in the State’s Motion to Revoke was that Appellant failed to pay restitution as ordered. The only restitution having accrued at the time of that Motion was the $200.00 payment due on January 5, 2008. The State never amended the Motion to include any violations that occurred subsequent to its filing.

At the May 16, 2008, evidentiary hearing, the testimony and record before the District Court revealed that Appellant’s conviction arose from her having qualified, due to the result of mental and physical disabilities, for monthly Supplemental Security Income (SSI) and then having received those monthly benefits without notifying the Social Security Administration of a subsequent change in her income that disqualified her for further payments. When released from jail on December 23, 2007, the fifty-five-year-old Appellant was unemployed and inquired at several places for employment, but because of her felony record, none of those places would hire her. The testimony further revealed that Appellant had no resources or income to pay her restitution, no home of her own, and lived with an adult daughter who had a terminal illness. According to the testimony, the disabilities that had originally qualified Appellant for SSI remained, and Appellant was making application to have her SSI restored but had not yet been re-approved. The State offered little to dispute this testimony other than to elicit an admission by Appellant that she had recently been offered a janitorial job but declined to start that job until disposition of her revocation. There was nothing to show that this job opportunity was previously known to Appellant and available to her when she violated her probation by not making the January 5, 2008, restitution payment.

The State’s initial burden of proof in a revocation proceeding is to simply establish that there has been a failure to comply with a rule of probation. Once that is shown, the burden shifts to the probationer to show that the failure was not deliberate or that there was a good faith effort to comply. Appellant met that burden. Because the record before us indicates Appellant could not pay the restitution due on January 5th, and because that was the only violation encompassed by the Motion to Revoke before the District Court, it was an abuse of discretion for the District Court to revoke Appellant’s probation for that alleged violation.

In Proposition II, Appellant contends that the evidence before the District Court established that she is unable to pay the restitution judgment and that requiring her to do so represents a manifest hardship. Appellant therefore asks that this Court, under Rule 8.5 of Section VIII of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), relieve Appellant of any further obligation to pay the restitution. Appellant also suggests that under Rule 8.6, this Court should credit towards payment of the restitution that time Appellant has served due to an erroneous revocation order. We find these claims outside the scope of this revocation appeal. The procedures contemplated under Section VIII that lead up to relieving a defendant of financial obligations under a judgment and sentence, or that result in applying incarceration time in satisfaction of the financial obligation, anticipate that a request for such relief be first entertained by the trial court. There is no record in Appellant’s matter of her having made a request for this type of relief in the District Court. Moreover, the claims in Appellant’s Proposition II do not directly concern the validity of the revocation order, which is the only issue in a revocation appeal. Appellant’s Proposition III alleges that the District Court violated the twenty-day rule imposed by 22 O.S.Supp.2005, § 991b(A). The Court finds that the relief granted to Appellant on her first proposition of error has rendered moot those errors advanced under Proposition III.

DECISION

The June 17, 2008, order of revocation entered in the District Court of Bryan County, Case No. CF-2007-520, is REVERSED and the District Court is directed to DISMISS that Motion to Revoke Suspended Sentence filed on January 18, 2008. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), MANDATE IS ORDERED ISSUED upon the filing of this decision.

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Footnotes:

1. O.R. 22.
2. O.R. 25.
3. Tr. 18.
4. McCaskey v. State, 1989 OK CR 63, ¶ 4, 781 P.2d 836, 837.
5. Patterson v. State, 1987 OK CR 255, ¶ 3, 745 P.2d 1198, 1199.
6. Rule -8.5 of Section VIII of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009).
7. 22 O.S.Supp.2005, § 991b(A).
8. Rule 1.2(D)(4).
9. Martinez v. State, 1999 OK CR 33, ¶ 20, 984 P.2d 813, 821.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for certain offenses
• Okla. Stat. tit. 22 § 991b(A) (Supp. 2005) - Revocation of parole or probation
• Okla. Stat. tit. 22, Ch. 18, App. Rule 8.5 (2009) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22, Ch. 18, App. Rule 8.6 (2009) - 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
• Patterson v. State, 1987 OK CR 255, T 3, 745 P.2d 1198, 1199
• Martinez v. State, 1999 OK CR 33, II 20, 984 P.2d 813, 821