Ruben Geraldo Velasquez v The State Of Oklahoma

RE-2017-113

Filed: Apr. 25, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Ruben Geraldo Velasquez appealed his conviction for violating the terms of his suspended sentences in Caddo County. His conviction and sentence were affirmed. Judge Lumpkin dissented. In this case, Velasquez had multiple convictions, including serious offenses like possession of a firearm after conviction and domestic violence. He was given a long sentence, but part of it was suspended, meaning he wouldn't have to serve all of it if he followed certain rules. Later, the state claimed he broke those rules by not paying fees, not reporting to his probation officer, and committing new crimes. The judge decided to revoke his suspended sentences entirely. Velasquez argued that he should get credit for time he spent in jail and said that his lawyer did not help him well, but the court disagreed. They found that the state had enough proof that he didn't follow the rules, so they upheld the judge's decision.

Decision

The revocation of Appellant's suspended sentences in Caddo County District Court Case Nos. CF-2011-74, CF-2011-181, and CF-2011-182 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there sufficient evidence to support the revocation of Appellant's suspended sentences?
• Did the trial court abuse its discretion by denying Appellant credit for time served?
• Did Appellant receive ineffective assistance of counsel in connection with the revocation proceedings?
• Was the trial court's decision to impose post-imprisonment supervision appropriate in this case?
• Was the revocation of Appellant's suspended sentences considered excessive given the circumstances?

Findings

• Appellant's first two propositions of error are without merit.
• Proposition IV is moot due to the trial court's amended revocation order.
• Appellant's ineffective assistance of counsel claim is without merit.
• Appellant has established no right to credit for time served, and the denial was not an abuse of discretion.
• Proposition VI is without merit; the evidence supported the revocation of the suspended sentence.
• The revocation of Appellant's suspended sentences is affirmed.

RE-2017-113

Apr. 25, 2019

Ruben Geraldo Velasquez

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Appellant appeals from the revocation of his suspended sentence in Caddo County District Court Case Nos. CF-2011-74, CF-2011-181, and CF-2011-182, by the Honorable David A. Stephens, Special Judge. On November 18, 2011, Appellant entered a plea of guilty to Possession of a Firearm After Conviction or During Probation, in violation of 21 O.S. § 1283 (Count 1), Driving While Under the Influence of Alcohol, in violation of 47 O.S. § 11-902(A)(2) (Count 2), Driving Without a Driver’s License, in violation of 47 O.S. § 6-303(A) (Count 3), and Transporting Open Bottle or Container of Liquor, in violation of 37 O.S. § 537(A)(7) (Count 4) in Case No. CF-2011-74; Assault and Battery With a Deadly Weapon, in violation of 21 O.S. § 652 (Count 1) and Threatening to Perform an Act of Violence, in violation of 21 O.S. § 1378(B) (Count 2) in Case No. CF-2011-181; and Domestic Assault and Battery by Strangulation, in violation of 21 O.S. § 644(I) in Case No. CF-2011-182. Appellant was convicted and sentenced in Case No. CF-2011-74 to twenty-five years imprisonment, with all but ten years suspended, for Count 1, one year imprisonment for Count 2, thirty days imprisonment for Count 3, and six months imprisonment for Count 4; in Case No. CF-2011-181 to eighteen and one half years imprisonment, with all but three and one half years suspended, for Count 1 and six months imprisonment for Count 2; and in Case No. CF-2011-182 to twenty-five years imprisonment, with all but ten years suspended. Judge Stephens ordered the sentences to be served concurrently.

On May 26, 2016, the State filed a petition seeking to revoke Appellant’s suspended sentences in Case Nos. CF-2011-74, CF-2011-181, and CF-2011-182 alleging Appellant failed to pay probation fees; failed to report; failed to report a change in address; failed to provide proof of employment; and committed the new crimes alleged in Caddo County District Court Case Nos. CF-2016-145 and CF-2016-203. Following a combined preliminary and revocation hearing, Judge Stephens revoked Appellant’s remaining suspended sentences in full. Judge Stephens denied Appellant’s request for credit for time served and ordered one year of post-imprisonment supervision upon Appellant’s release.

Appellant’s first two propositions of error are not properly presented as part of the appeal of the revocation of his suspended sentences. These propositions are based on the claim his original sentence for Count 1 in Case No. CF-2011-74 exceeded the maximum penalty allowed by statute. Appellant is challenging the validity of his predicate conviction. Any attempt to appeal his judgment and sentence must be pursued through the procedures governing certiorari appeals. Tilden v. State, 2013 OK CR 10, IT 4, 306 P.3d 554, 556; Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019). Propositions I and II are without merit.

In his fourth proposition of error Appellant objects to this revocation order including post-imprisonment supervision. The State agrees and concedes the issue but goes on to point out the issue is moot. On March 23, 2018, Judge Stephens issued an amended revocation order in each case removing the post-imprisonment supervision. Based on the trial court’s amended revocation order this proposition is moot.

Proposition III in Appellant’s brief argues he was provided ineffective assistance of counsel as evidenced by the errors alleged in Propositions I, II, and IV. Claims of ineffective assistance of counsel are reviewed under the standard set forth in Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 765, 145 L.Ed.2d 756 (2000) ([Petitioner] must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel.). A defendant must show both (1) deficient performance, by demonstrating that counsel’s conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-89, 104 S.Ct. at 2064-66. And we recognize that [a] court considering a claim of ineffective assistance of counsel must apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range of reasonable professional assistance. Harrington U. Richter, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). As determined above, we find no error warranting relief in this matter. Appellant has failed to establish that counsel’s performance was deficient or objectively unreasonable, and he is unable to show any resulting prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Appellant’s ineffective assistance of counsel claim is without merit.

Appellant argues in Proposition V that the trial court denial of credit for time served was an abuse of discretion and warrants relief. There is no constitutional or statutory authority requiring a trial court to give a defendant credit for time served in jail pending trial. Holloway U. State, 2008 OK CR 14, I 8 n. 4, 182 P.3d 845, 847 n. 4; In re Tidwell, 1957 OK CR 33, I 4, 309 P.2d 302, 304. There is no authority mandating credit for time served be granted or making it abuse of discretion to fail to give credit for time served. Shepard v. State, 1988 OK CR 97, I 21, 756 P.2d 597, 602. Appellant has established no right to credit for time served in this case and based on the record he has not established the denial here was an abuse of discretion. This proposition is without merit.

Lastly, in his sixth proposition, Appellant argues revocation in full was excessive and maintains this revocation order should be modified. The burden of proof to establish a violation of probation is that the alleged probation violation must be proven by a preponderance of the evidence. Tilden, 2013 OK CR 10, I 5, 306 P.3d at 556. A preponderance of the evidence means the evidence establishes that it is more likely than not that the alleged probation violations occurred. Hammon V. State, 2000 OK CR 7, I 46, 999 P.2d 1082, 1094. The State must only prove one violation of probation in order to revoke a suspended sentence in full. Tilden, 2013 OK CR 10, I 10, 306 P.3d at 557 (citing McQueen U. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745). In this case the State proved a significant number of violations including crimes involving violence, firearms, and controlled dangerous substances. Proposition VI is without merit. A suspended sentence is a matter of grace. Hagar U. State, 1999 OK CR 35, I 8, 990 P.2d 894, 898; Demry U. State, 1999 OK 6 CR 31, I 12, 986 P.2d 1145, 1147. 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. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. In this case, the State filed a petition setting forth the grounds for the revocation, and competent evidence justifying the revocation was presented to the trial court establishing the requirements necessary to revoke Appellant’s suspended sentence in full. 22 O.S.2016, § 991b(A). Appellant has not shown an abuse of discretion. Jones, supra.

DECISION

The revocation of Appellant’s suspended sentences in Caddo County District Court Case Nos. CF-2011-74, CF-2011-181, and CF-2011-182 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. 21 O.S. § 1283
2. 47 O.S. § 11-902(A)(2)
3. 47 O.S. § 6-303(A)
4. 37 O.S. § 537(A)(7)
5. 21 O.S. § 652
6. 21 O.S. § 1378(B)
7. 21 O.S. § 644(I)
8. Tilden v. State, 2013 OK CR 10, IT 4, 306 P.3d 554, 556
9. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019)
10. Holloway v. State, 2008 OK CR 14, I 8 n. 4, 182 P.3d 845, 847 n. 4
11. In re Tidwell, 1957 OK CR 33, I 4, 309 P.2d 302, 304
12. Shepard v. State, 1988 OK CR 97, I 21, 756 P.2d 597, 602
13. Hammon v. State, 2000 OK CR 7, I 46, 999 P.2d 1082, 1094
14. McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745
15. Hagar v. State, 1999 OK CR 35, I 8, 990 P.2d 894, 898
16. Demry v. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147
17. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
18. 22 O.S.2016, § 991b(A)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1283 (2011) - Possession of a Firearm After Conviction or During Probation
• Okla. Stat. tit. 47 § 11-902 (2011) - Driving While Under the Influence of Alcohol
• Okla. Stat. tit. 47 § 6-303 (2011) - Driving Without a Driver's License
• Okla. Stat. tit. 37 § 537 (2011) - Transporting Open Bottle or Container of Liquor
• Okla. Stat. tit. 21 § 652 (2011) - Assault and Battery With a Deadly Weapon
• Okla. Stat. tit. 21 § 1378 (2011) - Threatening to Perform an Act of Violence
• Okla. Stat. tit. 21 § 644 (2011) - Domestic Assault and Battery by Strangulation
• Okla. Stat. tit. 22 § 991b (2016) - Revocation of Suspended Sentences

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 4, 306 P.3d 554, 556
• Holloway v. State, 2008 OK CR 14, I 8 n. 4, 182 P.3d 845, 847 n. 4
• In re Tidwell, 1957 OK CR 33, I 4, 309 P.2d 302, 304
• Shepard v. State, 1988 OK CR 97, I 21, 756 P.2d 597, 602
• Hammon v. State, 2000 OK CR 7, I 46, 999 P.2d 1082, 1094
• McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745
• Hagar v. State, 1999 OK CR 35, I 8, 990 P.2d 894, 898
• Demry v. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565