Rico Raynelle Pearson v The State of Oklahoma

RE-2009-1019

Filed: Feb. 22, 2011

Not for publication

Prevailing Party: Rico Raynelle Pearson

Summary

Rico Raynelle Pearson appealed his conviction for revocation of probation. Conviction and sentence were modified from a full seven years to three years, with four years suspended. Judge Lumpkin dissented.

Decision

The decision of the District Court of Tulsa County to revoke Appellant's suspended sentences in Case Nos. CF-2008-1939 and CF-2008-2408 is AFFIRMED, however, the revocation in full of the seven year suspended sentences is MODIFIED to revocation of three years with four years remaining suspended. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient evidence to establish Appellant's dominion and control over the marijuana found in the vehicle?
• Did the trial court abuse its discretion in revoking the entire seven-year suspended sentence based on the nature of the probation violations?
• Was the revocation of the suspended sentences found to be excessive given the circumstances of the case?

Findings

• the court erred in finding sufficient evidence of dominion and control over the marijuana
• the revocation of the entire sentence was excessive and should be modified
• the decision to revoke the suspended sentences was affirmed but modified to revocation of three years with four years remaining suspended

RE-2009-1019

Feb. 22, 2011

Rico Raynelle Pearson

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, PRESIDING JUDGE:

Appellant appeals from the revocation in full of his seven year suspended sentences in Case Nos. CF-2008-1939 and CF-2008-2408 in the District Court of Tulsa County, by the Honorable Carlos Chappelle, District Judge. In Case No. CF-2008-1939, Appellant entered a plea of guilty to Count I – Unlawful Possession of Controlled Drug (Cocaine Base); and Count II – Unlawful Possession of Controlled Drug – Second Offense (Marijuana). In Case No. CF-2008-2408, Appellant entered a plea of guilty to Count I – Possession of CDS Within 2000 feet of Park / School / Public Housing (Marijuana, Cocaine Base, Alprazolam); Count II – Unlawful Possession of Drug Paraphernalia; and Count III – Public Intoxication. He was given suspended sentences totaling seven (7) years in both cases with all sentences running concurrently.

On October 15, 2009, the State filed an Amended Application to Revoke Suspended Sentence alleging Appellant violated probation by committing, on or about August 23, 2009, the following crimes charged in Tulsa County District Court Case No. CF-2009-4884: Unlawful Possession of Controlled Drug (Marijuana and/or Cocaine); Driving with License Revoked (Misdemeanor); Speeding In Excess of Lawful Maximum Limit (Misdemeanor); Unsafe Lane Use (Misdemeanor); and Failure to Pay Taxes Due to State (Misdemeanor). The hearing on the application to revoke was held before Judge Chappelle on November 2, 2009. At the conclusion of the evidence and arguments, Judge Chappelle found Appellant had violated probation as alleged, and revoked his seven year suspended sentences in full.

Appellant asserts two propositions of error in this appeal. Appellant’s first proposition claims the presence of four hundredths of a gram of marijuana in the bottom of the center console of a vehicle not owned by Appellant is insufficient to establish dominion and control over the marijuana. Appellant’s second proposition contends that, given the nature of the probation violations that Appellant was alleged to have committed, even if proved by competent evidence, the revocation of his entire sentence was excessive and should be modified.

In his first proposition, Appellant has not established that Judge Chappelle abused his discretion by finding that sufficient evidence had been presented to establish Appellant had dominion and control over the marijuana found in the car. Harris v. State, 1989 OK CR 10, 3, 772 P.2d 1329, 1331. Appellant was the operator and sole occupant of the car, and thus it was under his exclusive control. Johnson v. State, 1988 OK CR 246, I 8, 764 P.2d 530, 532; Staples v. State, 1974 OK CR 208, I 17, 528 P.2d 1131, 1135. Appellant also acknowledged ownership of the plastic baggie, which was in the same console where the marijuana was found. Id. Moreover, Appellant doesn’t challenge Judge Chappelle’s finding that the other violations of probation alleged in the application to revoke were proven by a preponderance of the evidence. Revocation is proper even if only one violation is shown by a preponderance of the evidence. McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745.

We find merit to Appellant’s proposition two. An excessive punishment claim in a revocation appeal must be determined by a study of all the facts and circumstances in each particular case, and this Court is without authority to modify a sentence, unless we can conscientiously say that under all facts and circumstances the sentence is so excessive as to shock the conscience of the Court. Stigall v. State, 1971 OK CR 270, I 2, 487 P.2d 1182, 1183. Judge Chappelle’s stated reason for revoking Appellant’s seven year suspended sentences in full proved to be factually and legally incorrect. Judge Chappelle stated the reason he was imposing the stiff sentence was because Appellant had a second page on both cases, with two priors on the second page in Case No. CF-2008-2408. During the hearing, it was established that the 1998 felony case listed on the second page of both Case Nos. CF-2008-1939 and CF-2008-2408 had been deferred and never prosecuted to conviction. In addition, Judge Chappelle was using Case No. CF-2008-1939 as the second prior felony conviction on the second page in Case No. CF-2008-2408. However, Appellant entered pleas of guilty in both of these cases at the same time and thus had not been convicted in Case No. CF-2008-1939 at the time his crime was committed in Case No. CF-2008-2408, which precludes its use on the second page of the Information in Case No. CF-2008-2408. 21 O.S.Supp.2002 § 51.1(A) (the new felony crime must be committed after conviction for the prior felony). Therefore, neither of these cases had anything to legitimately list on the second page of the Informations. Thus, revoking the suspended sentences in full, because of second pages in these cases, was not correct. Judge Chappelle acknowledged that the probation violations proven in this revocation proceeding were minor. Moreover, the charges filed in the District Court of Tulsa County on the probation violations were dismissed. The State did present arguments, supported by the Tulsa County District Court Docket, that Appellant has had numerous contacts with law enforcement and with the Tulsa County District Attorney’s Office, and Appellant may have been fortunate he wasn’t convicted of a felony prior to these cases. However, under the facts of this case, because the stated reason for revoking the suspended sentences in full was not correct, and because the probation violations were minor and were not prosecuted to convictions, we find that Appellant has met his burden to prove that revocation in full of his seven year suspended sentences is excessive. We find that the revocation should be modified to revocation of three years with four years remaining suspended.

DECISION

The decision of the District Court of Tulsa County to revoke Appellant’s suspended sentences in Case Nos. CF-2008-1939 and CF-2008-2408 is AFFIRMED; however, the revocation in full of the seven year suspended sentences is MODIFIED to revocation of three years with four years remaining suspended. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Harris v. State, 1989 OK CR 10, 3, 772 P.2d 1329, 1331.
2. Johnson v. State, 1988 OK CR 246, I 8, 764 P.2d 530, 532.
3. Staples v. State, 1974 OK CR 208, I 17, 528 P.2d 1131, 1135.
4. McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745.
5. Stigall v. State, 1971 OK CR 270, I 2, 487 P.2d 1182, 1183.
6. Gonseth v. State, 1994 OK CR 9, I 6, 871 P.2d 51, 53-54.
7. Phipps v. State, 1974 OK CR 219, II 11-12, 529 P.2d 998, 1001.
8. Kincannon v. State, 1975 OK CR 210, "I 13, 541 P.2d 1339, 1342.
9. Caudill v. State, 1981 OK CR 161, 3, 637 P.2d 1264, 1266.
10. Demry v. State, 1999 OK CR 31, II 11-12, 986 P.2d 1145, 1147.
11. Crowels v. State, 1984 OK CR 29, I 6, 675 P.2d 451, 453.
12. Cooper v. State, 1979 OK CR 85, I 16, 599 P.2d 419, 423.
13. Wallace v. State, 1977 OK CR 154, I 7, 562 P.2d 1175, 1177.
14. Barthiume v. State, 1976 OK CR 94, I 3, 549 P.2d 366, 368.
15. Sparks v. State, 1987 OK CR 247, I 4, 745 P.2d 751, 752.
16. Black v. Romano, 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985).
17. Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973).
18. Jackson v. State, 1988 OK CR 236, I 11, 763 P.2d 388, 390.
19. 22 O.S.Supp.2002 § 51.1(A).
20. 22 O.S.Supp.2005, § 991b(A).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Sentencing for certain felonies
• Okla. Stat. tit. 21 § 51.1(A) - When prior felony convictions can be considered
• Okla. Stat. tit. 22 § 991b(A) - 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:

• Harris v. State, 1989 OK CR 10, I 3, 772 P.2d 1329, 1331
• Johnson v. State, 1988 OK CR 246, I 8, 764 P.2d 530, 532
• Staples v. State, 1974 OK CR 208, I 17, 528 P.2d 1131, 1135
• McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745
• Stigall v. State, 1971 OK CR 270, I 2, 487 P.2d 1182, 1183
• Rea v. State, 2001 OK CR 28, I 5 n. 3, 34 P.3d 148, 149 n. 3
• Phipps v. State, 1974 OK CR 219, II 11-12, 529 P.2d 998, 1001
• Kincannon v. State, 1975 OK CR 210, I 13, 541 P.2d 1339, 1342
• Caudill v. State, 1981 OK CR 161, I 3, 637 P.2d 1264, 1266
• Demry v. State, 1999 OK CR 31, II 11-12, 986 P.2d 1145, 1147
• Crowels v. State, 1984 OK CR 29, I 6, 675 P.2d 451, 453
• Cooper v. State, 1979 OK CR 85, I 16, 599 P.2d 419, 423
• Wallace v. State, 1977 OK CR 154, I 7, 562 P.2d 1175, 1177
• Barthiume v. State, 1976 OK CR 94, I 3, 549 P.2d 366, 368
• Sparks v. State, 1987 OK CR 247, I 4, 745 P.2d 751, 752
• Black v. Romano, 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636
• Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656
• Mack v. State, 637 P.2d 1262 (Okl.Cr.1981)
• Jackson v. State, 1988 OK CR 236, I 11, 763 P.2d 388, 390