Jose Adolfo Rios v The State Of Oklahoma
RE-2018-1006
Filed: Dec. 12, 2019
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
# Jose Adolfo Rios appealed his conviction for violating probation. Conviction and sentence were upheld. Judge Hudson dissented. In this case, Jose Adolfo Rios was on probation after pleading guilty to serious crimes like rape and indecent acts with a child. He had a ten-year suspended sentence, meaning he would not go to prison as long as he followed certain rules. However, Rios did not follow these rules. He stopped checking in with his probation officer, did not tell her when he changed his address, and did not attend required treatment for sex offenders. He also got in trouble for another crime where he and his girlfriend were fighting. Because of all these things, the judge decided to fully revoke his suspended sentence, meaning he would have to serve his time in prison. Rios felt that the judge made a mistake because he didn't consider other punishments instead of just sending him to prison. But the court decided that the judge was right to revoke Rios's sentence because he broke several probation rules. The decision to keep him in prison stands, and there was not enough reason to say that the judge was wrong.
Decision
The order of the District Court of Oklahoma County revoking in full Appellant's concurrent ten year suspended sentences in Case No. CF-2006-6132 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 an abuse of discretion by the trial court in revoking Mr. Rios' sentence in full?
- Did the trial court's revocation of the suspended sentences violate Mr. Rios' due process rights?
- Was the revocation of Mr. Rios' sentence considered excessive under the circumstances?
- Did the trial court provide sufficient reasoning for the decision to revoke the suspended sentence?
- Was the evidence presented at the hearing adequate to support the finding of probation violations?
Findings
- the court did not err in revoking the suspended sentences in full
- the evidence was sufficient to support the revocation of probation
- the court did not abuse its discretion in the revocation decision
- the claim of excessive sentence was denied
RE-2018-1006
Dec. 12, 2019
Jose Adolfo Rios
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
LUMPKIN, JUDGE: Appellant, Jose Adolfo Rios, appeals from the revocation in full of his concurrent ten year suspended sentences in Case No. CF-2006-6132 in the District Court of Oklahoma County, by the Honorable Ray C. Elliott, District Judge. On April 4, 2008, Appellant entered a plea of guilty to two counts of Rape in the First Degree, Counts 1 and 2; and two counts of Indecent or Lewd Acts With a Child Under Sixteen, Counts 9 and 10. He was convicted and sentenced on Counts 1 and 2 to terms of twenty-two years, with all but the first twelve years suspended, and on Counts 9 and 10 to terms of twenty years, with all but the first ten years suspended, and all sentences ordered to run concurrently with each other.
On July 25, 2018, the State filed an Application to Revoke Suspended Sentence alleging that Appellant violated probation by (1) failing to report as directed; (2) failing to report change of address; (3) failing to pay supervision fees; (4) failing to reside in a residence approved by the probation officer; (5) failing to attend, actively participate and complete a sex offender treatment program; (6) failing to submit to polygraph testing; (7) failing to comply with sex offender registration act; and (8) committing the new crime of Domestic Assault and Battery With a Dangerous Weapon as alleged in Oklahoma County District Court Case No. CF-2018-3378.
On July 25, 2018, the hearing on the application to revoke was held before Judge Elliott. At the hearing, Appellant’s probation officer testified she wrote a violation report on June 22, 2018, because Appellant had stopped reporting as ordered. Appellant was last in her office on April 16th of 2018, and did not properly report in April and May of 2018. The probation officer and officers with the sex offender registration unit went by the house listed as Appellant’s residence and found no indication he was living there. He had thus not reported a change of address and was not residing at a residence approved by the probation officer. Appellant never paid anything toward his supervision fees and had been deemed a sex offender treatment failure because he failed to attend class on twenty-one occasions. Appellant took a polygraph on September 14, 2017, but failed to pay for the exam so the results were never reported. Appellant failed to take a polygraph in March of 2018. The probation officer testified she became aware that Appellant had started using methamphetamine because he had a positive drug test and because Appellant and his girlfriend had gotten high and attacked each other with a hammer and stick. The probation officer also found out one of the reasons Appellant had absconded from probation was because he was in jail for new crimes.
Appellant and his fiancé testified that he had hit her by accident, but had never struck her on purpose or in anger. Appellant testified that in March of 2018 he was the victim of a crime and had gotten stabbed several times. He acknowledged using drugs after the stabbing, but only when he was in pain. He also testified that after the stabbing he lost his job, lost his car, lost his house, and was staying on the streets as a transient. Appellant testified he had tried to comply with all his probation requirements, but because of all his problems he had fallen off.
After hearing arguments, Judge Elliott found by a preponderance of the evidence that Appellant had violated alleged probation items 1, failing to report; 2, failing to report change of address; 4, failing to reside at an approved residence; 5, failing to complete sex offender treatment, and 6, failing to submit to polygraph testing. Judge Elliott revoked Appellant’s four concurrent ten year suspended sentences in full. Appellant appeals asserting one proposition of error.
PROPOSITION I: THE TRIAL COURT ABUSED ITS DISCRETION IN REVOKING MR. RIOS’ SENTENCE IN FULL IN VIOLATION OF HIS DUE PROCESS RIGHTS AND RESULTING IN AN EXCESSIVE SENTENCE.
ANALYSIS
Appellant argues that nothing in the record suggests that Judge Elliott gave any consideration to other possible options besides revocation in full. Appellant also argues that under the facts and circumstances of this case revocation in full is excessive. The decision of the trial court to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, 749 P.2d 563. Judge Elliott had unrefuted evidence before him to support his finding that Appellant committed five of the alleged violations of probation. Appellant even acknowledged that he committed several of the alleged violations of probation. Appellant hasn’t established that Judge Elliott erred or abused his discretion by finding Appellant had violated terms and conditions of his probation and by revoking his concurrent ten year suspended sentences in full. Appellant’s claim that Judge Elliott failed to give sufficient reasons why disciplinary sanctions have been insufficient to gain Appellant’s compliance with probation requirements involves a statutory requirement for Drug Court termination proceedings. Suspended sentence revocation statutes applicable to Appellant do not include such a requirement.
DECISION
The order of the District Court of Oklahoma County revoking in full Appellant’s concurrent ten year suspended sentences in Case No. CF-2006-6132 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.
Footnotes:
- He was convicted and sentenced on Counts 1 and 2 to terms of twenty-two years, with all but the first twelve years suspended, and on Counts 9 and 10 to terms of twenty years, with all but the first ten years suspended, and all sentences ordered to run concurrently with each other.
- Appellant failed to attend class on twenty-one occasions.
- See 22 O.S.2011, § 471.7(E).
- See 22 O.S.2011, § 991b.
- Jones U. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565.
- Appellant's claim that Judge Elliott failed to give sufficient reasons why disciplinary sanctions have been insufficient to gain Appellant's compliance with probation requirements involves a statutory requirement for Drug Court termination proceedings.
Oklahoma Statutes citations:
- Okla. Stat. tit. 22 § 471.7 - Drug Court termination proceedings
- Okla. Stat. tit. 22 § 991b - Suspended sentence revocation
- Okla. Stat. tit. 21 § 701.8 - Rape in the First Degree
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:
No case citations found.