Samuel Keith Carolina v The State Of Oklahoma

RE 2018-0118

Filed: May 30, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Samuel Keith Carolina appealed his conviction for Burglary. Conviction and sentence affirmed. Judge Rowland dissented.

Decision

The revocation of Appellant's suspended sentence in Oklahoma County District Court Case Nos. CF-2008-1311 is AFFIRMED. Appellant's motion to supplement the record with the written motion to quash pursuant to Rule 3.11(B)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), is GRANTED. The motion and transcript on the hearing on the motion to quash were reviewed by Judge Elliott without objection at the revocation hearing. 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 sentence?
• Did the State prove by a preponderance of the evidence that Appellant committed the alleged violations?
• Is the standard for proving violations of a suspended sentence based on a preponderance of the evidence?
• Was the order of the District Court to revoke Appellant's suspended sentence affirmed?

Findings

• Affirmed the order of the District Court revoking Appellant's suspended sentence.
• Granted Appellant's motion to supplement the record with the written motion to quash.
• Ordered the mandate to be issued upon the filing of the decision.

RE 2018-0118

May 30, 2019

Samuel Keith Carolina

Appellant

v

The State Of Oklahoma

Appellee

**SUMMARY OPINION**

JOHN D. HADDEN HUDSON, JUDGE:

Samuel Keith Carolina, Appellant, entered a plea of guilty on June 6, 2008, to the amended charge of Burglary 1 in Oklahoma County District Court Case No. CF-2008-1311. He was sentenced to twenty years with all except the first ten years suspended, with rules and conditions of probation, and with credit for time served. The State filed an application to revoke Appellant’s suspended sentence on December 14, 2017, alleging Appellant: (1) committed the new crime of Count 1 – Assault and Battery with a Deadly Weapon, Counts 2-5 – Shooting with Intent to Kill, Count 6 – Conspiracy to Commit a Felony, to wit: Shooting with Intent to Kill, as alleged in Oklahoma County District Court Case No. CF-2016-10009; (2) committed the new crime of Felon in Possession of a Firearm, as alleged in Oklahoma County District Court Case No. CF- 2016-9872; and (3) committed the new crime of Count 1 – Felon in Possession of a Firearm, Count 2 – Association While in Commission of a Gang Related Offense, and Count 3 – Concealing Stolen Property, as alleged in Oklahoma County District Court Case No. CF-2017-975. The State’s second and third allegations were stricken prior to the revocation hearing. Following a revocation hearing on January 30, 2018, before the Honorable Ray C. Elliott, Appellant’s suspended sentence was revoked in full. Judge Elliott found the violations alleged in the State’s first allegation supported by a preponderance of the evidence. Appellant appeals the revocation of his suspended sentence.

On appeal, Appellant argues the sole proposition of error that the State presented insufficient evidence to prove by a preponderance of the evidence that Appellant was guilty of the allegations in Oklahoma County Case No. CF-2016-10009. We affirm the order of the District Court revoking Appellant’s suspended sentence. 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, 556. 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, ¶ 4, 568 P.2d 297, 297-298. 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, 745. A preponderance of the evidence supports the revocation of Appellant’s suspended sentence.

**DECISION**

The revocation of Appellant’s suspended sentence in Oklahoma County District Court Case Nos. CF-2008-1311 is AFFIRMED. Appellant’s motion to supplement the record with the written motion to quash pursuant to Rule 3.11(B)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), is GRANTED. The motion and transcript on the hearing on the motion to quash were reviewed by Judge Elliott without objection at the revocation hearing. 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. Okla. Stat. tit. 21 § 1431.
2. Okla. Stat. tit. 21 § 651.
3. Okla. Stat. tit. 22 § 11.
4. Okla. Stat. tit. 22 § 467.
5. Rule 3.11(B)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019).
6. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019).
7. Tilden v. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554, 556.
8. Henderson v. State, 1977 OK CR 238, ¶ 4, 568 P.2d 297, 297-298.
9. McQueen v. State, 1987 OK CR 162, ¶ 2, 740 P.2d 744, 745.

Oklahoma Statutes citations:

No Oklahoma statutes found.

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, ¶ 5, 306 P.3d 554, 556.
• Henderson v. State, 1977 OK CR 238, ¶ 4, 568 P.2d 297, 297-298.
• McQueen v. State, 1987 OK CR 162, ¶ 2, 740 P.2d 744, 745.