Jose Angel Lopez v The State of Oklahoma

RE-2018-1071

Filed: Sep. 26, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jose Angel Lopez appealed his conviction for using a vehicle to help intentionally discharge a firearm and possession of a controlled substance. His conviction included a ten-year sentence for the first charge and a one-year sentence for the second, with both sentences running at the same time but with only five years to serve. After a review, his prison time was changed to three years of serving and seven years suspended. Later, the state accused him of not following the rules of his suspended sentence by not paying fees, not reporting when told, and committing new crimes, including assault. At a hearing, the judge decided to revoke his suspended sentence completely. Lopez argued that the judge made a mistake by basing the decision on hearsay evidence. However, the court found that the evidence was enough to show he had committed the new crimes. They agreed with the lower court's decision and upheld the revocation of his sentence. Thus, Lopez's appeal was denied, and the decision for revocation was confirmed. No dissent was noted in this case.

Decision

The District Court's revocation of Appellant's suspended sentence in Oklahoma County District Court Case No. CF-2010-3550 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 delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the trial court in revoking Appellant's suspended sentence based on hearsay evidence?
• Did the trial court's use of a previous judicial hearing's transcript violate Appellant's due process rights?
• Was the evidence presented by the State sufficient to prove by a preponderance that Appellant committed the new crimes alleged?
• Was Appellant's trial counsel's cross-examination of the witness in the preliminary hearing adequate for confrontation purposes?

Findings

• the court affirmed the revocation of Appellant's suspended sentence
• the trial court did not abuse its discretion in revoking the suspended sentence
• the evidence was sufficient to show violations of the conditions of the suspended sentence
• the use of hearsay evidence was not improper as it was met with appropriate standards

RE-2018-1071

Sep. 26, 2019

Jose Angel Lopez

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN

KUEHN, VICE PRESIDING JUDGE:

Appellant, Jose Angel Lopez, pled guilty to Count 1 – Using a Vehicle to Facilitate the Intentional Discharge of a Firearm, a felony, and Count 2 – Possession of a Controlled Dangerous Substance, a misdemeanor, in Oklahoma County District Court Case No. CF-2010-3550. He was sentenced to ten years imprisonment for Count 1 and one year imprisonment for Count 2. The sentences were ordered to run concurrently and be suspended for all but the first five years.

Following a one year Judicial Review hearing, Appellant’s sentence for Count 1 was modified to three years to serve and seven years suspended. The State filed an Application to Revoke Suspended Sentence, alleging Appellant violated the terms of his suspended sentence by failing to pay supervision fees, failing to report as directed, and committing the new crime of Possession of CDS, as alleged in Lincoln County Case No. CF-2014-343. The application to revoke was later amended to further allege Appellant committed the new crimes of Assault and Battery with a Deadly Weapon and Felon in Possession of a Firearm, as alleged in Oklahoma County Case No. CF-2017-4230. Following a revocation hearing before the Hon. Glenn M. Jones, District Judge, Appellant’s suspended sentence was revoked in full.

Appellant appeals the revocation of his suspended sentences raising a sole proposition of error: the trial court abused its discretion in revoking Appellant’s sentence based entirely upon hearsay evidence with no particularized guarantee of reliability. We affirm the order of the District Court revoking Appellant’s suspended sentence in full. 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 U. State, 2013 OK CR 10, I 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 U. State, 1989 OK CR 65, “I 5, 780 P.2d 1181, 1183. “Alleged violations of conditions of a suspended sentence need be proven only by a preponderance of the evidence.” Tilden, 2013 OK CR 10, I 5, 306 P.3d at 556.

Judge Jones determined that the State showed, by a preponderance of the evidence, that Appellant committed the new crimes alleged in Oklahoma County Case No. CF-2017-4230. This decision was reached after reviewing the preliminary hearing’s transcript from Case No. CF-2017-4230 wherein the victim testified Appellant entered his yard and shot him while he was sitting on his front porch. This Court has held that neither “the relaxed due process standards nor the provisions of Section 991b are violated when a transcript of a previous judicial hearing is admitted into evidence at a revocation hearing SO long as the defendant was allowed to confront and cross-examine the witnesses at the previous judicial hearing.” Wortham v. State, 2008 OK CR 18, “Il 15, 188 P.3d 201, 206.

A review of the preliminary hearing transcript shows that Appellant’s trial counsel, who also represented him at the revocation hearing, cross-examined the State’s only witness. The testimony of a witness about his personal knowledge of the events, under oath and subject to cross-examination, is not hearsay. Appellant has not shown an abuse of discretion.

DECISION

The District Court’s revocation of Appellant’s suspended sentence in Oklahoma County District Court Case No. CF-2010-3550 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 delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. Okla. Stat. tit. 22 § 991b.
2. Tilden v. State, 2013 OK CR 10.
3. Walker v. State, 1989 OK CR 65.
4. Wortham v. State, 2008 OK CR 18.
5. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019).

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, I 10, 306 P.3d 554, 557
• Walker v. State, 1989 OK CR 65, I 5, 780 P.2d 1181, 1183
• Wortham v. State, 2008 OK CR 18, I 15, 188 P.3d 201, 206