Jeremiah William Creekmore v State Of Oklahoma

RE 2012-0711

Filed: Sep. 20, 2013

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Jeremiah William Creekmore appealed his conviction for Lewd Molestation. Conviction and sentence were ten years, with three years in prison and seven years suspended. Judge William C. Kellough revoked Creekmore's suspended sentence due to new charges. The appeals court found that the state did not prove that the new charges were final and reversed the revocation, sending the case back for a new hearing. Judge Lewis dissented.

Decision

The revocation of Creekmore's suspended sentence in Tulsa County District Court Case No. CF-2008-5092 is REVERSED AND REMANDED for a new revocation hearing. Pursuant to Rule 3.15 the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• was there sufficient evidence to prove a violation of probation?
• was it an abuse of discretion to revoke the whole seven year suspended sentence?
• was he deprived of effective assistance of counsel?

Findings

• the court erred in finding sufficient evidence to prove a violation of probation
• the revocation of the whole seven-year suspended sentence was an abuse of discretion
• it was unnecessary to address the issue of effective assistance of counsel

RE 2012-0711

Sep. 20, 2013

Jeremiah William Creekmore

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Jeremiah William Creekmore, pled guilty November 25, 2008, to Lewd Molestation, in Tulsa County District Court Case No. CF-2008-5092. He was fined $500.00 and sentenced to ten years with three years in the Department of Corrections and seven years suspended with rules and conditions of probation. Creekmore was given credit for time served. This sentence was ordered to run concurrently with Tulsa County Case No. CF-2008-2478.

The State filed an application to revoke Creekmore’s suspended sentence on June 4, 2012, alleging Creekmore was arrested in Pawnee County for possession of marijuana and unlawful possession of drug paraphernalia on January 13, 2012. Following a revocation hearing on July 20, 2012, the Honorable William C. Kellough, District Judge, revoked Creekmore’s seven year suspended sentence, with credit for all time earned and served.

Creekmore appeals, raising the following issues: (1) whether the trial court abused its discretion in finding the evidence sufficient to prove a violation of probation; (2) whether it was an abuse of discretion to revoke the whole seven year suspended sentence; and (3) whether he was deprived of effective assistance of counsel.

Finding merit to Creekmore’s first proposition of error, the order revoking Creekmore’s suspended sentence is reversed and remanded for a new hearing.

In Creekmore’s first proposition of error he argues that the State failed to present evidence that this Judgment and Sentence was final. We agree. No witnesses were called by the State at the revocation hearing, but a Judgment and Sentence for Pawnee County Case No. CF-2012-11 was offered as Exhibit 1, showing Creekmore had subsequently been convicted of possession of marijuana, a felony, and unlawful possession of drug paraphernalia, a misdemeanor. In *Pickens v. State*, 1989 OK CR 58, ¶ 12, 779 P.2d 596, this Court held that when the State introduces a certified or authenticated copy of the judgment and sentence of the predicate conviction as a basis for revocation of a suspended sentence, it must also offer strict proof of the finality of that predicate judgment and sentence. In the present case, as in *Pickens*, the State failed to offer strict proof of finality. Because the first proposition of error warrants relief, we find it unnecessary to address the remaining proposition of error.

DECISION

The revocation of Creekmore’s suspended sentence in Tulsa County District Court Case No. CF-2008-5092 is REVERSED AND REMANDED for a new revocation hearing. Pursuant to Rule 3.15 the MANDATE is ORDERED issued upon the filing of this decision.

REVOCATION APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, THE HONORABLE WILLIAM C. KELLOUGH, DISTRICT JUDGE

APPEARANCES AT TRIAL
STEPHANIE SINGER
ASSISTANT PUBLIC DEFENDER
TULSA COUNTY COURTHOUSE
TULSA, OKLAHOMA 74103

APPEARANCES ON APPEAL
RICHARD COUCH
ASSISTANT PUBLIC DEFENDER
TULSA COUNTY PUBLIC DEFENDER’S OFFICE
423 S. BOULDER AVE., SUITE 300
TULSA, OKLAHOMA 74103

CINDY BROWN DANNER
COUNSEL FOR APPELLANT

NICK CODDING
E. SCOTT PRUITT
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
TULSA COUNTY COURTHOUSE
TULSA, OKLAHOMA 74103

KEELEY L. MILLER
ASSISTANT ATTORNEY GENERAL
COUNSEL FOR THE STATE
313 N.W. 21st STREET
OKLAHOMA CITY, OKLAHOMA 73105

OPINION BY: A. JOHNSON, J.

LEWIS, P.J.: Dissent
SMITH, V.P.J.: Concur
LUMPKIN, J.: Concur
C. JOHNSON, J.: Concur

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Footnotes:

1. In Pickens U. State, 1989 OK CR 58, IT 12, 779 P.2d 596, this Court held "that when the State introduces a certified or authenticated copy of the judgment and sentence of the predicate conviction as a basis for revocation of a suspended sentence, it must also offer strict proof of the finality of that predicate judgment and sentence."
2. Judgment and Sentence for Pawnee County Case No. CF-2012-11 was offered as Exhibit 1, showing Creekmore had subsequently been convicted of possession of marijuana, a felony, and unlawful possession of drug paraphernalia, a misdemeanor.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Punishment for lewd acts with a child
• Okla. Stat. tit. 47 § 11-801(B)(1) (2011) - Definitions related to traffic laws

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:

• Pickens v. State, 1989 OK CR 58, 779 P.2d 596