James Curtis Greenlow v The State of Oklahoma

RE 2012-0575

Filed: Jul. 10, 2013

Not for publication

Prevailing Party: The State of Oklahoma

Summary

James Curtis Greenlow appealed his conviction for several offenses, including unlawful possession of a controlled substance and false impersonation. His conviction and sentence included deferred sentences and fines. Greenlow later had his suspended sentences revoked because he failed to report or pay fines as required. The court affirmed the revocation of his sentences but stated that the sentences for his assault charges needed to be changed since they were too long. Judge Lumpkin disagreed with part of this decision.

Decision

The revocation of Greenlow's suspended sentences in Ottawa County District Court Case Nos. CF-2000-550 and CF-2000-563 is AFFIRMED; however, the matter is REMANDED to the District Court for re-sentencing in Case No. CF-2000-563 in accordance with the above. Pursuant to Rule 3.15 the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• whether the sentences in Case No. CF-2000-563 must be modified because they exceed the statutory maximum for the offenses
• whether Greenlow's failure to make the required payments was willful

Findings

• the court erred by imposing sentences that exceed the statutory maximum in Case No. CF-2000-563
• the evidence was sufficient to support the revocation of Greenlow's suspended sentences

RE 2012-0575

Jul. 10, 2013

James Curtis Greenlow

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE: Appellant James Curtis Greenlow pled guilty September 12, 2000, in Ottawa County District Court Case No. CF-2000-550 to Count 1 – Unlawful Possession of Controlled Dangerous Substance, Count 2 – False Impersonation of Another, Count 3 – Driving While License Suspended, Count 4 – Failure to Carry Security Verification Form and Count 5 – Driving a Defective Vehicle. He received a two year deferred sentence on Count 1 and a $250.00 fine, a two year deferred sentence on Count 2 and a $100.00 fine, a $100.00 fine on Counts 3 and 4, and a fine of $10.00 on Count 5. In Case No. CF-2000-563 Greenlow pled guilty on September 12, 2000, to two counts of Assault With Bodily Secretions. On each count sentencing was deferred for three years and Appellant was fined $100.00. The sentences were ordered to run concurrently with CF-2000-550.

Following a hearing April 2, 2010, on the State’s motion to accelerate Greenlow’s deferred sentences, the Honorable Bill Culver, Special Judge, accelerated the deferred sentences. In both cases Greenlow was sentenced to five years on each count, suspended. The sentences were ordered to run concurrently. On January 27, 2011, the State filed a motion to revoke Appellant’s suspended sentences alleging Appellant (1) failed to report, (2) failed to pay supervision fees as ordered, and (3) failed to pay fines and costs as ordered. Following a revocation hearing on June 25, 2012, Judge Culver found Appellant violated his rules and conditions of probation. The suspended sentences were revoked in full, with credit for time served. The sentences were ordered to run concurrently.

Greenlow appeals, raising the following issues: (1) whether the sentences in Case No. CF-2000-563 must be modified because they exceed the statutory maximum for the offenses; and (2) whether Greenlow’s failure to make the required payments was willful. We affirm the revocation of Greenlow’s suspended sentences but remand the matter to the District Court to modify the sentences imposed in Case No. CF-2000-563.

1. Greenlow was convicted of two counts of Placing Bodily Fluid on Government Employee in violation of 21 O.S.Supp.1999, § 650.9. He was sentenced pursuant to 21 O.S.Supp. 1999, § 9, which provides punishment by a fine not exceeding $1,000.00 or by imprisonment in the State Penitentiary not exceeding two years, or by both such fine and imprisonment. The State agrees that Greenlow’s five year sentences in Case No. CF-2000-563 exceed the statutory maximum. The matter is therefore remanded to the District Court for modification of Greenlow’s sentences.

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. 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. Cooper v. State, 1979 OK CR 85, IT 13, 599 P.2d 419, Henderson v. State, 1977 OK CR 238, 1191 4-5, 568 P.2d 297. Revocation is proper if only one violation is shown by a preponderance of the evidence. McQueen v. State, 1987 OK CR 162, IT 2, 740 P.2d 744. The State alleged and Greenlow testified that he did not report as directed. Greenlow also testified that he failed to make his payments as directed. Greenlow has not shown Judge Culver abused his discretion in revoking the suspended sentences.

DECISION

The revocation of Greenlow’s suspended sentences in Ottawa County District Court Case Nos. CF-2000-550 and CF-2000-563 is AFFIRMED; however, the matter is REMANDED to the District Court for re-sentencing in Case No. CF-2000-563 in accordance with the above. Pursuant to Rule 3.15 the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. Greenlow was convicted of two counts of Placing Bodily Fluid on Government Employee in violation of 21 O.S.Supp.1999, § 650.9. He was sentenced pursuant to 21 O.S.Supp. 1999, § 9, which provides punishment by a fine not exceeding $1,000.00 or by imprisonment in the State Penitentiary not exceeding two years, or by both such fine and imprisonment.
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.
3. 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." Cooper v. State, 1979 OK CR 85, IT 13, 599 P.2d 419, Henderson v. State, 1977 OK CR 238, 1191 4-5, 568 P.2d 297.
4. Revocation is proper if only one violation is shown by a preponderance of the evidence. McQueen v. State, 1987 OK CR 162, IT 2, 740 P.2d 744.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 650.9 - Placing Bodily Fluid on Government Employee
• Okla. Stat. tit. 21 § 9 - Punishment for Offenses

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:

• Fleming v. State, 1988 OK CR 162, I 4, 760 P.2d 206
• Cooper v. State, 1979 OK CR 85, I 13, 599 P.2d 419
• Henderson v. State, 1977 OK CR 238, I 4-5, 568 P.2d 297
• McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744