Jason Dayton Hamilton v The State Of Oklahoma

RE 2016-0218

Filed: Jun. 8, 2017

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jason Dayton Hamilton appealed his conviction for possession of a stolen vehicle. His conviction and sentence were for ten years in prison and a $500 fine. Judge Phillip Corley revoked his suspended sentence due to new crimes and not following rules of probation. Hamilton argued that there wasn't enough evidence to revoke his sentence and that he had poor legal help. The court agreed to fix the order to remove extra supervision time after prison, but they upheld the decision to revoke his sentence. Judge Lumpkin agreed with the result, but Judge Johnson did not take part in the opinion.

Decision

The revocation of Appellant's suspended sentence in Logan County District Court Case No. CF-2012-306 is AFFIRMED but the matter is remanded to the District Court with instructions to modify the revocation order by eliminating the provision ordering Appellant to serve a term of post-imprisonment supervision. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there incompetent evidence admitted in violation of Mr. Hamilton's constitutional due process right to confront witnesses against him?
• Did the State fail to produce competent evidence to prove, by a preponderance of the evidence, that Mr. Hamilton committed a new law violation?
• Did the State fail to show, by a preponderance of the evidence, that Mr. Hamilton violated Rule 11 by failing to report a change of address?
• Were there extenuating circumstances and factors warranting a favorable modification in the interest of justice?
• Was the imposition of post-imprisonment supervision in the order revoking Mr. Hamilton's suspended sentence unauthorized by law?
• Was the assessment of incarceration costs statutorily prohibited due to Mr. Hamilton's status as a mentally ill person?
• Was any failure to preserve issues for review a result of the ineffective assistance of counsel?

Findings

• the court erred in admitting incompetent evidence that violated the Appellant's due process rights
• evidence was sufficient to support the revocation of the suspended sentence
• the State failed to prove by a preponderance of the evidence that the Appellant violated Rule 11
• the request for modification in the interest of justice was denied
• the imposition of post-imprisonment supervision was unauthorized and the revocation order was modified accordingly
• the assessment of incarceration costs was not addressed due to the scope of review limitations
• the claim of ineffective assistance of counsel was rejected as Appellant failed to meet the burden of proof

RE 2016-0218

Jun. 8, 2017

Jason Dayton Hamilton

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE HUDSON, JUDGE:

Jason Dayton Hamilton, Appellant, pled guilty on December 20, 2013, in Logan County District Court Case No. CF-2012-306, to Possession of Stolen Vehicle, AFCF, a felony. He was sentenced to ten years; was ordered to complete the Bill Johnson or Joseph Harp program and upon the successful completion, the balance of his sentence would be suspended. Appellant received credit for time served. He was also fined $500.00. The case was ordered to run concurrent with Tulsa County Case No. CF-2010-3422.

The State filed an application to revoke Appellant’s suspended sentence on March 24, 2015, alleging Appellant violated the rules and conditions of probation by: (1) committing the new crimes of Count 1 – Larceny of Automobile, Count 2 – Eluding a Police Officer, Count 3 – Larceny from a Person, and Count 4 – Failure to Obey Traffic Control Device, as alleged in Tulsa County District Court Case No. CF-2015-720, and (2) he was kicked out of the sober living/transitional living program and failed to notify DOC where he was living. Following a revocation hearing on March 16, 2016, the Honorable Phillip Corley, District Judge, sustained the State’s motion and revoked the balance of Appellant’s suspended sentence. Appellant received credit for time served. The sentence was ordered to run concurrently with Tulsa County Case No. CF-2010-3422. Appellant was also ordered to serve a term of post-imprisonment supervision for a period of two years.

Appellant appeals the revocation of his suspended sentences arguing:

1. The decision to revoke rested on incompetent evidence admitted in violation of Mr. Hamilton’s statutory and constitutional due process right to confront the witnesses against him.
2. The revocation order must be vacated because the State failed to produce competent evidence to prove, by a preponderance of the evidence, that Mr. Hamilton committed a new law violation.
3. The State failed to show, by a preponderance of the evidence, that Mr. Hamilton violated Rule 11, by failing to report a change of address.
4. Alternatively, review of the entire record reveals extenuating circumstances and factors warranting a favorable modification in the interest of justice.
5. The imposition of post-imprisonment supervision in the order revoking Mr. Hamilton’s suspended sentence was unauthorized by law.
6. Assessment of incarceration costs was statutorily prohibited due to Mr. Hamilton’s status as a mentally ill person.
7. Alternatively, any failure to preserve issues for review was the result of the ineffective assistance of counsel.

Appellant’s first three propositions of error challenge sufficiency of the evidence. Violations of the conditions of a suspended sentence need only be shown by a preponderance of the evidence. Tilden v. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554. Preponderance of the evidence has been defined to mean simply the greater weight of evidence – that which, to the mind of the trier of fact or the seeker of the truth, seems most convincing and more probably true. Henderson v. State, 1977 OK CR 238, ¶ 94, 568 P.2d 297. Revocation is proper even if only one violation is shown by a preponderance of the evidence. McQueen v. State, 1987 OK CR 162, ¶ 2, 740 P.2d 744. In this case, a preponderance of the evidence supports the trial judge’s decision to revoke Appellant’s suspended sentence. Appellant has not shown an abuse of discretion.

The decision to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse thereof. Tilden v. State, 2013 OK CR 10, ¶ 10, 306 P.3d 554, 557. An ‘abuse of discretion’ has been defined by this Court as a ‘clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application’. Walker v. State, 1989 OK CR 65, ¶ 5, 780 P.2d 1181. Appellant has not shown an abuse of discretion.

The State agrees that the trial judge could not impose a term of post-imprisonment supervision after revocation of a suspended sentence. We agree. See Friday v. State, 2016 OK CR 16, ¶ 14-6, P.3d . The matter is remanded to the District Court with instructions to modify the revocation order by eliminating the provision ordering Appellant to serve a term of post-imprisonment supervision.

The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017). This issue is not within the scope of an appeal of the revocation of Appellant’s suspended sentence. Relief must first be requested in the District Court before seeking relief in this Court. See Grimes v. State, 2011 OK CR 16, ¶ 21, 251 P.3d 749.

To establish ineffective assistance of counsel, Appellant must prove that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). It is Appellant’s burden to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The burden is on the accused to demonstrate both a deficient performance and resulting prejudice. Appellant has not met this burden.

DECISION

The revocation of Appellant’s suspended sentence in Logan County District Court Case No. CF-2012-306 is AFFIRMED but the matter is remanded to the District Court with instructions to modify the revocation order by eliminating the provision ordering Appellant to serve a term of post-imprisonment supervision. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 22 § 18
2. Tilden U. State, 2013 OK CR 10, IT 5, 306 P.3d 554.
3. Henderson v. State, 1977 OK CR 238, 94, 568 P.2d 297.
4. McQueen U. State, 1987 OK CR 162, I 2, 740 P.2d 744.
5. Walker v. State, 1989 OK CR 65, "I 5, 780 P.2d 1181.
6. Friday v. State, 2016 OK CR 16, 1114-6, P.3d .
7. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017).
8. Grimes v. State, 2011 OK CR 16, IT 21, 251 P.3d 749.
9. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
10. Okla. Stat. tit. 22 § 18

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Possession of Stolen Vehicle
• Okla. Stat. tit. 22 § 982a (2011) - Suspension of Sentence
• Okla. Stat. tit. 22 § 1086 (2011) - Revocation of Suspended Sentence
• Okla. Stat. tit. 22 § 19 (2011) - Post-Imprisonment Supervision

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:

• Tilden v. State, 2013 OK CR 10, I 5, 306 P.3d 554
• Henderson v. State, 1977 OK CR 238, 94, 568 P.2d 297
• McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744
• Walker v. State, 1989 OK CR 65, I 5, 780 P.2d 1181
• Friday v. State, 2016 OK CR 16, I 14-6, P.3d
• Grimes v. State, 2011 OK CR 16, I 21, 251 P.3d 749