Richard Leroy Felton v The State Of Oklahoma

RE-2016-1101

Filed: Dec. 14, 2017

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Richard Leroy Felton appealed his conviction for violating the terms of his probation. Conviction and sentence were affirmed by the court. Judge Kuehn dissented.

Decision

The order of the District Court of Okmulgee County revoking Appellant's consecutive suspended sentences of one year on Count 2, and six months on Count 3, in Case No. CF-2015-396 is AFFIRMED. 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 sufficient evidence to prove that Mr. Felton violated Rules 9 and 26 of the terms and conditions of probation?
• Did Mr. Felton receive due process when the trial court based its order of revocation on a matter not alleged in the State's motion to revoke suspended sentence?
• Did the State prove by a preponderance of the evidence that Mr. Felton violated the terms of his probation by committing the new crime of violating a protective order?
• Was Mr. Felton denied his right to effective assistance of counsel?
• Did the trial court abuse its discretion when it revoked Mr. Felton's suspended sentence in full?

Findings

• the court did not err, sufficient evidence supported the revocation of probation.
• due process was not violated; the state met the requirements for notification of revocation grounds.
• the state proved that appellant violated the protective order beyond a preponderance of the evidence.
• appellant did not demonstrate ineffective assistance of counsel.
• the trial court did not abuse its discretion in revoking the suspended sentences.

RE-2016-1101

Dec. 14, 2017

Richard Leroy Felton

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: Appellant, Richard Leroy Felton, appeals from the revocation in full of his consecutive suspended sentences of one year on Count 2, and six months on Count 3, in Case No. CF-2015-396 in the District Court of Okmulgee County, by the Honorable Pandee Ramirez, Special Judge.

Pursuant to a plea agreement that included amending Count 1 to a misdemeanor, Appellant entered a plea of guilty on June 10, 2016, to Count 1: Threatening to Perform an Act of Violence, misdemeanor; Count 2: Resisting an Officer, misdemeanor; and Count 3: Carrying a Concealed Weapon, misdemeanor. He was sentenced to six months imprisonment in the county jail on Count 1; a term of one year, suspended, on Count 2; and a term of six months, suspended, on Count 3, with the sentences to run consecutively.

On October 26, 2016, the State filed a motion to revoke Appellant’s suspended sentences alleging he violated probation (1) by failing to pay supervision fees; (2) by failing to maintain gainful employment; (3) by failing to promptly and truthfully answer questions from probation officers and other law enforcement officers; (4) by failing to advise probation officers of his contact with police; and (5) by violating his protective order on two different dates.

The revocation hearing was held before Judge Ramirez on November 29, 2016. After hearing the evidence and arguments, Judge Ramirez found Appellant had violated Rules 7, 9, and 26 of his rules and conditions of probation, and revoked in full his consecutive suspended sentences of one year on Count 2 and six months on Count 3.

At the revocation hearing, the State first called Amy McGuire (McGuire), an investigator for the District Attorney’s office. McGuire testified that Appellant’s probation was supervised by the District Attorney’s office and that his probation file had been transferred to her. McGuire said that she had received information from Bobby Tollette (Tollette) of the Beggs Police Department regarding contact Appellant had with that agency.

On October 26, 2016, Appellant reported to McGuire at the probation office. When McGuire asked about his contact with other law enforcement agencies, Appellant got angry and said he didn’t have to report about his contact with other agencies. McGuire told Appellant his rules did require such reporting and she asked him to write a statement about his contact with the police. Appellant got extremely angry, stood up, fists clinched, jaw clinched, and told [McGuire] he was not going to deal with any f___ing police. McGuire asked Appellant if he was threatening her and told him to sit down several times before she finally got up and placed him in handcuffs. Appellant was still cussing and yelling and threatening that he was going to kill McGuire and have his people kill all of the probation officers. Another officer arrived and Appellant specifically threatened to kill that officer when he got out. Appellant continued his threats of shooting and killing all of them if they took him to jail. McGuire reviewed a report she had prepared concerning the incident and recounted how angry Appellant was and all of the threats to shoot and kill that he made.

The State’s next witness was Tollette, the chief of police in Beggs. Tollette testified he knew Appellant because he was a registered sex offender and a protective order had been issued against him. Tollette testified he saw Appellant violate the protective order one time, and that his officers had documented four violations. Tollette testified that because Beggs is a small community, they had adjusted the distances and boundaries of the protective order for Appellant’s benefit and had discussed those boundaries with him. Tollette said the five documented violations occurred after the adjusted boundaries had been discussed with Appellant. Tollette testified he contacted Appellant regarding the violations, but Appellant was not cooperative. Tollette testified he twice reported these violations and contacts to the District Attorney’s office. On cross examination, Tollette testified the boundaries had been set so that there was no legitimate reason for Appellant to be in the protected area.

After Tollette’s testimony, the State rested without presenting evidence concerning Appellant’s failure to pay supervision fees and failure to maintain gainful employment. Appellant did not present any witnesses and demurred to the evidence. After hearing arguments, Judge Ramirez found Appellant had violated his probation based upon Rules 7, 9, and 26. Judge Ramirez revoked Appellant’s one year suspended sentence and his six month suspended sentence in full.

Appellant filed this appeal asserting five propositions of error:

PROPOSITION I: THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT MR. FELTON VIOLATED RULES 9 AND 26 OF THE TERMS AND CONDITIONS OF PROBATION AS WAS ALLEGED IN THE MOTION TO REVOKE SUSPENDED SENTENCE AS THE ALLEGED PROHIBITED CONDUCT DID NOT CONSTITUTE A VIOLATION OF MR. FELTON’S PROBATION.

PROPOSITION II: MR. FELTON WAS DENIED DUE PROCESS WHEN THE TRIAL COURT BASED ITS ORDER OF REVOCATION ON A MATTER NOT ALLEGED IN THE STATE’S MOTION TO REVOKE SUSPENDED SENTENCE.

PROPOSITION III: IF THIS COURT FINDS THAT MR. FELTON WAS ON NOTICE THAT HE WOULD BE REQUIRED TO DEFEND AGAINST THE ALLEGATION THAT HE HAD COMMITTED A NEW CRIME, THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT MR. FELTON VIOLATED THE TERMS OF HIS PROBATION BY COMMITTING THE NEW CRIME OF VIOLATING A PROTECTIVE ORDER.

PROPOSITION IV: MR. FELTON WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE 6TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND ART. II, §§ VII, IX, AND XX OF THE UNITED STATES [SIC, OKLAHOMA] CONSTITUTION.

PROPOSITION V: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REVOKED MR. FELTON’S SUSPENDED SENTENCE OR, IN THE ALTERNATIVE, THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT REVOKED MR. FELTON’S SUSPENDED SENTENCE IN FULL.

ANALYSIS

As noted by the State, there is more than sufficient evidence to support the revocation of Appellant’s suspended sentences in this case, and to support the revocation of those sentences in full. Tilden v. State, 2013 OK CR 10, T5, 306 P.3d 554, 556 (alleged violations of conditions of a suspended sentence need be proven only by a preponderance of the evidence). In fact, Appellant acknowledges that the State proved a violation of Rule 7 of his rules and conditions of probation based upon his own admission of failing to promptly and truthfully answer inquiries from his probation officer about his contacts with the Beggs Police Department. Violation of even one condition of probation is sufficient to justify revocation of a suspended sentence. Tilden, 2013 OK CR 10 at 10, 306 P.3d at 557.

Appellant tries to argue in Proposition V that the threats he made to the probation officers while he was failing to answer inquiries from his probation officer should not be considered as a basis for the revocation. However, that argument is disingenuous at best. Appellant’s threats to kill the probation officers were part and parcel of his failure to promptly and truthfully answer inquiries from his probation officer, and of his violation of Rule 7. Even if Appellant’s other violations of probation are disregarded, this admitted violation of probation, and Appellant’s threats and other actions relating thereto, are alone sufficient to justify the revocation, and to justify revocation in full.

Appellant first argues in Proposition I that evidence about officers contacting and talking to him does not necessarily involve being questioned or arrested as required by Rule 9. Revocation of probation is not equated to a criminal prosecution in any sense and thus the full panoply of rights due a defendant in a criminal prosecution does not apply to probation revocations. Wortham v. State, 2008 OK CR 18, 1912, 13, 188 P.3d 201, 205, citing Morrissey v. Brewer, 408 U.S. 471, 480, 489, 92 S.Ct. 2593, 2600, 2604, 33 L.Ed.2d 484 (1972). We find that the evidence is sufficient to establish by a preponderance of the evidence that Appellant committed this violation of Rule 9. Tilden v. State, 2013 OK CR 10 at IT 5, 306 P.3d at 556.

In his second argument under Proposition I, Appellant correctly notes that Rule 26 requires that he have no contact with the persons protected, and that no evidence was presented that Appellant had actual contact with any of those parties. Again, however, other violations are more than sufficient to revoke Appellant’s suspended sentences and revoke them in full.

Appellant’s claims in Proposition II about the sufficiency of the allegations in the motion to revoke are without merit. In order to meet the requirements of due process, the petition to revoke a suspended sentence must allege facts and set forth the reasons for revocation with such clarity that the defense is able to determine what reason is being submitted as grounds for revocation, enabling preparation of a defense to the allegation. Lennox v. State, 1984 OK CR 22, III 5-7, 674 P.2d 1146, 1148-49. The motion to revoke in this case clearly sets forth sufficient facts and allegations to notify Appellant of all of the grounds upon which the revocation was sought. Id.

Appellant’s arguments under Proposition III concerning his violation of the protective order are likewise without merit. Evidence was presented that the distances and boundaries of the protective order had been adjusted for Appellant’s benefit and that those boundaries had been discussed with him. Evidence was presented that Appellant was subsequently found within those boundaries on five different occasions. Such evidence was more than sufficient to establish by a preponderance of the evidence that Appellant had knowingly and willfully violated the protective order. Tilden v. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556.

In Proposition IV, Appellant argues that his counsel at the revocation hearing was ineffective for failing to make the arguments asserted in this appeal. As discussed above, those arguments are, with one exception, without merit. Appellant has thus not established either (1) that counsel’s performance was constitutionally deficient; or (2) that counsel’s deficient performance prejudiced the defense. See e.g. Malone v. State, 2013 OK CR 1, II 14, 293 P.3d 198, 206.

DECISION

The order of the District Court of Okmulgee County revoking Appellant’s consecutive suspended sentences of one year on Count 2, and six months on Count 3, in Case No. CF-2015-396 is AFFIRMED

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. 1. The revocation in full of his consecutive suspended sentences of one year on Count 2, and six months on Count 3, in Case No. CF-2015-396.
2. 2. As noted by the State, there is more than sufficient evidence to support the revocation of Appellant's suspended sentences in this case.
3. 3. Tilden v. State, 2013 OK CR 10, T5, 306 P.3d 554, 556 (alleged violations of conditions of a suspended sentence need be proven only by a preponderance of the evidence).
4. 4. Wortham v. State, 2008 OK CR 18, 1912, 13, 188 P.3d 201, 205, citing Morrissey v. Brewer, 408 U.S. 471, 480, 489, 92 S.Ct. 2593, 2600, 2604, 33 L.Ed.2d 484 (1972).
5. 5. Lennox v. State, 1984 OK CR 22, III 5-7, 674 P.2d 1146, 1148-49.
6. 6. Tilden v. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556.
7. 7. Malone v. State, 2013 OK CR 1, II 14, 293 P.3d 198, 206.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Threatening to Perform an Act of Violence
• Okla. Stat. tit. 21 § 1271 (2011) - Resisting an Officer
• Okla. Stat. tit. 21 § 1290.22 (2011) - Carrying a Concealed Weapon
• Okla. Stat. tit. 22 § 991a (2011) - Rules of Probation
• Okla. Stat. tit. 22 § 982 (2011) - Motion to Revoke Suspended Sentence
• Okla. Stat. tit. 22 § 19 (2011) - Probation Violations

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, 556
• Wortham v. State, 2008 OK CR 18, 1912, 13, 188 P.3d 201, 205
• Lennox v. State, 1984 OK CR 22, III 5-7, 674 P.2d 1146, 1148-49
• Malone v. State, 2013 OK CR 1, II 14, 293 P.3d 198, 206