Cynthia McGhee v The State Of Oklahoma

RE-2010-706

Filed: Dec. 1, 2011

Not for publication

Prevailing Party: Cynthia McGhee

Summary

Cynthia McGhee appealed her conviction for embezzlement and fraud. Conviction and sentence were for fifty years in total, with the first twenty years suspended. One judge dissented.

Decision

The order of the District Court of Oklahoma County revoking three years of Cynthia McGhee's five year suspended sentence in Case No. CF-2002-5846 is REVERSED and this matter is REMANDED to the District Court for a hearing wherein the court is to make findings of fact regarding McGhee's ability, or lack thereof, to pay restitution and court costs in accordance with 22 O.S.2010, §991f(N) and (O). 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 filing of this decision.

Issues

• Was there sufficient evidence to show McGhee's failure to pay restitution was due to inability to pay rather than willfulness?
• Did the District Court err by failing to make a finding of fact regarding McGhee's ability to pay restitution and costs?
• Was the revocation of McGhee's suspended sentence an abuse of discretion?

Findings

• the court erred
• the evidence was sufficient to show inability to pay
• the decision to revoke was reversed and remanded

RE-2010-706

Dec. 1, 2011

Cynthia McGhee

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE A. JOHNSON, PRESIDING JUDGE:

On January 9, 2004, Appellant, Cynthia McGhee, represented by counsel, entered a blind plea of no contest in Oklahoma County District Court Case No. CF-2002-5846, to Embezzlement by Employee, Counts I – XI, XIV – XX, XXIII, and Using a Computer with Purpose to Defraud, Counts XII – XIII, XV, XXI – XXII. McGhee was sentenced to five years incarceration on each count, resulting in a sentence of fifty years incarceration, with all but the first twenty years suspended, pursuant to terms and conditions of probation. ^1

On April 19, 2010, the State filed a motion to revoke McGhee’s suspended sentence. ^2 On July 12 and 13, 2010, a hearing was held before the Honorable Donald L. Deason, District Judge. McGhee did not dispute that she had not paid restitution as ordered. At the conclusion of the hearing, the court revoked three years of McGhee’s five-year suspended sentence in Count II. From that order of revocation, McGhee has perfected this appeal.

In her only assignment of error, McGhee contends the decision to revoke her suspended sentence was an abuse of discretion because her failure to pay was the result of an inability to pay, not a willful refusal to pay. A District Court’s decision to revoke a suspended sentence in whole or in part is reviewable under the abuse of discretion standard. Hampton v. State, 2009 OK CR 4, 203 P.3d 179, 182. Further, revocation of a suspended sentence is justified even if a violation of only one condition is shown by a preponderance of the evidence. McQueen v. State, 1987 OK CR 162, ^2, 740 P.2d 744, 745.

In hearings regarding payment of restitution, the State has the burden to prove by a preponderance of the evidence that the probationer failed to make restitution as ordered. McCaskey v. State, 1989 OK CR 63, ^94, 781 P.2d 836, 837. Once the State meets its burden of proof, the burden shifts to the probationer to show the failure to pay was not willful, or that a good faith effort to make restitution was made. Id. 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. Id.

In this case, there is no argument McGhee failed to make the restitution payments as ordered. The question is whether her failure to pay was willful. After a review of the record on appeal, we FIND McGhee provided sufficient evidence that her failure to pay was due to an inability to pay, rather than a willful refusal to pay. It is well-settled that probation cannot be revoked for failure to pay fines, costs, or restitution, without a showing that the failure was willful and the defendant had the ability to pay. Bearden U. Georgia, 461 U.S. 660, 663-675, 103 S.Ct. 2064, 2068-2075, 76 L.Ed.2d 221 (1983). See also 22 O.S.2010, §991f(M)(3). In this case, the District Court never made a finding of fact regarding McGhee’s ability to pay restitution and costs. We find that error constituted an abuse of discretion.

DECISION

The order of the District Court of Oklahoma County revoking three years of Cynthia McGhee’s five-year suspended sentence in Case No. CF-2002-5846 is REVERSED and this matter is REMANDED to the District Court for a hearing wherein the court is to make findings of fact regarding McGhee’s ability, or lack thereof, to pay restitution and court costs in accordance with 22 O.S.2010, §991f(N) and (O). 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 filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

THE HONORABLE DONALD L. DEASON, DISTRICT JUDGE

ATTORNEYS AT TRIAL
JOAN LOPEZ
DEFENSE COUNSEL
OKLAHOMA CITY, OKLAHOMA
ATTORNEY FOR APPELLANT

ATTORNEYS ON APPEAL
JOAN LOPEZ
DEFENSE COUNSEL
OKLAHOMA CITY, OKLAHOMA
ATTORNEY FOR APPELLANT

PETER HADDOCK
KEELEY L. MILLER
ASSISTANT DISTRICT ATTORNEY
OKLAHOMA COUNTY
OKLAHOMA CITY, OKLAHOMA
ATTORNEY FOR APPELLEE

OPINION BY: A. JOHNSON, P.J.:
LEWIS, V.P.J.: Concur
LUMPKIN, J.: Concur in Results
C. JOHNSON, J.: Concur
SMITH, J.: Concur

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Footnotes:

1. McGhee's probation included restitution in excess of $244,000.00.
2. The State's sole allegation was that McGhee had failed to pay restitution as ordered.
3. Hampton v. State, 2009 OK CR 4, 203 P.3d 179, 182.
4. McQueen v. State, 1987 OK CR 162, q2, 740 P.2d 744, 745.
5. McCaskey v. State, 1989 OK CR 63, 94, 781 P.2d 836, 837.
6. Bearden U. Georgia, 461 U.S. 660, 663-675, 103 S.Ct. 2064, 2068-2075, 76 L.Ed.2d 221 (1983).
7. 22 O.S.2010, §991f(M)(3).
8. 22 O.S.2010, §991f(N) and (O).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Embezzlement by Employee
• Okla. Stat. tit. 22 § 991f(N) (2010) - Probation and Restitution
• Okla. Stat. tit. 22 § 991f(O) (2010) - Probation and Restitution

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• Bearden v. Georgia - U.S. Supreme Court case regarding probation and ability to pay fines

Other citations:

No other rule citations found.

Case citations:

• Hampton v. State, 2009 OK CR 4, 203 P.3d 179, 182
• McQueen v. State, 1987 OK CR 162, 740 P.2d 744, 745
• McCaskey v. State, 1989 OK CR 63, 781 P.2d 836, 837
• Bearden v. Georgia, 461 U.S. 660, 663-675, 103 S.Ct. 2064, 2068-2075, 76 L.Ed.2d 221 (1983)