Milton Roger Hornsby v The State Of Oklahoma

RE-2018-128

Filed: Apr. 18, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Milton Roger Hornsby appealed his conviction for violating his probation after being found guilty of new crimes. His previous convictions included having a gun after being convicted of a crime and making threats. The court had given him a suspended sentence, which means he didn't have to serve time unless he broke the rules of his probation. However, when he was accused of a new crime, the judge decided to take away ten years of his suspended sentence. Hornsby argued that the judge didn't follow the right rules during the hearing, but the court found that the judge did follow the correct procedure. The appeal court agreed with the judge's decision and kept Hornsby's ten-year revocation. Judge Kuehn disagreed with the decision.

Decision

The revocation of Appellant's suspended sentences in McIntosh County District Court Case Nos. CF-2012-45 and CF-2012-60 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 due to the application of a lower burden of proof during the revocation hearing?
• Did the suppression of evidence during the preliminary hearing affect the outcome of the revocation hearing?
• Was there sufficient evidence to prove Appellant possessed the intent to do bodily harm during the altercation?
• Did the accumulation of errors deprive Appellant of a fair hearing?
• Was Judge Bland's decision to revoke ten years of Appellant's suspended sentence an abuse of discretion?

Findings

• the court did not err, the burden of proof was correctly applied
• evidence was not excluded, no plain error occurred
• evidence was sufficient to establish intent to do bodily harm
• there was no cumulative effect of errors
• the court did not abuse its discretion in revocation of suspended sentences
• the revocation of Appellant's suspended sentences is AFFIRMED

RE-2018-128

Apr. 18, 2019

Milton Roger Hornsby

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE: Appellant appeals from the revocation of his suspended sentence in McIntosh County District Court Case Nos. CF-2012-45 and CF-2012-60, by the Honorable James D. Bland, District Judge. On June 5, 2014, Appellant entered a plea of no contest to Possession of a Firearm After Conviction or During Probation, in violation of 21 O.S. § 1283 (Count 1), three counts of Threatening to Perform an Act of Violence, in violation of 21 O.S. § 1378(B) (Counts 2-4), Carrying a Firearm While Under the Influence, in violation of 21 O.S. § 1289.9 (Count 5), and Reckless Conduct with a Firearm, in violation of 21 O.S. § 1289.11 (Count 6), in McIntosh County District Court Case No. CF-2012-45; and Assault and Battery With a Dangerous Weapon, in violation of 21 O.S. § 645, in McIntosh County District Court Case No. CF-2012-60. Appellant was convicted and sentenced to twenty years imprisonment, with all twenty years suspended, for Count 1 and six months imprisonment, with all six months suspended, each for Counts 2-6 in Case No. CF-2012-45 and to twenty years imprisonment, with all twenty years suspended, in Case No. CF-2012-60. Judge Bland ordered the sentences to be served concurrently.

On September 19, 2016, the State filed a Motion to Revoke Suspended Sentence, in both cases, alleging Appellant committed the new crime of Assault and Battery with a Dangerous Weapon as alleged in McIntosh County District Court Case No. CF-2016-243. Following a December 29, 2016, hearing on the applications, Judge Bland revoked ten years of Appellant’s remaining suspended sentences.

In his first proposition, Appellant argues Judge Bland applied a lower burden of proof than required resulting in an abuse of discretion. This argument is based on a court minute that allegedly conflicts with Judge Bland’s description of the standard during the revocation hearing. The court minute regarding this revocation hearing stated: COURT FINDS PROBABLE CAUSE TO BELIEVE THE MOTION TO REVOKE SHOULD BE GRANTED. During the revocation hearing Judge Bland correctly stated the burden of proof when explaining it to Appellant. Judge Bland told Appellant the State had to show that it’s more likely than not that you’ve committed a violation of your probation, which would include a violation of any law. Judge Bland’s oral pronouncement of the burden of proof controls over a conflicting court minute. LeMay v. Rahal, 1996 OK CR 21, ¶ 18-20, 917 P.2d 18, 22 (citing U.S. v. Villano, 816 F.2d 1448, 1450-51 (10th Cir. 1987)). Judge Bland stated the correct burden of proof during the revocation hearing. As a result, Proposition I is without merit.

Appellant argues in Proposition II that because the preliminary hearing magistrate suppressed the discovery of the knife used in this incident, during the Case No. CF-2016-243 preliminary hearing, the victim’s testimony at the revocation hearing regarding the recovery of the knife by law enforcement is an error that changed the outcome of this revocation hearing. Appellant made no objection at the hearing. He complains for the first time in this proposition. Appellant has therefore waived appellate review of the issue for all but plain error. To be entitled to relief under the plain error doctrine, Appellant must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. See Simpson v. State, 1994 OK CR 40, ¶ 3, 11, 23, 876 P.2d 690, 693, 694-95, 698; 20 O.S.2011, § 3001.1. If these elements are met, this Court will correct plain error only if the error seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Simpson, 1994 OK CR 40, ¶ 30, 876 P.2d at 701 (citing United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993); 20 O.S.2011, § 3001.1. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. To establish plain error, the Appellant must first prove an actual error occurred in this revocation hearing. Because this case is a revocation and not part of a criminal prosecution, the full array of criminal prosecution rights does not apply. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). This Court has held that the Oklahoma Constitution should not be interpreted to require the exclusion, from revocation proceedings, of evidence seized in violation of the Fourth Amendment. Richardson v. State, 1992 OK CR 76, ¶ 7, 841 P.2d 603, 605. The evidence may be excluded if the police conduct is so egregious exclusion is required as a deterrent to illegal acts of police. Richardson, 1992 OK CR 76, ¶ 8, 841 P.2d at 605. If the State relies on illegally seized evidence during a revocation hearing to support its burden of proof, absent egregious police misconduct, the evidence will not be barred by the exclusionary rule. Id. Appellant has failed to establish this evidence was the product of officers’ egregious behavior. In the present case, Appellant has not met the plain error burden. Appellant has not established any error occurred and even if we assume error was present he has not established the error affected the outcome of the proceeding. Simpson, 1994 OK CR 40, ¶¶ 3, 11, 23, 876 P.2d at 693; 694-95, 698; 20 O.S.2011, § 3001.1. Proposition II is without merit.

At Proposition III, Appellant argues there was insufficient evidence presented to prove Appellant possessed any intent to do bodily harm to the victim during this altercation. The evidence presented at the revocation hearing was more than sufficient to establish it was more likely than not Appellant intended to do bodily harm to the victim. Hammon v. State, 2000 OK CR 7, ¶ 46, 999 P.2d 1082, 1094. This Proposition is without merit.

Lastly, Appellant claims an accumulation of errors has deprived him of a fair hearing. None of Appellant’s propositions have merit; therefore, there is no cumulative effect of errors. This Court must determine in this appeal if Judge Bland’s decision to revoke ten years of Appellant’s available twenty-year suspended sentence was an abuse of discretion. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565. In order to revoke a suspended sentence the burden of proof is that the alleged probation violations must be proven by a preponderance of the evidence. Tilden v. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554, 556. A preponderance of the evidence means the evidence establishes that it is more likely than not the alleged probation violations occurred. Hammon, 2000 OK CR 7, ¶ 46, 999 P.2d at 1094. The evidence was more than sufficient to support a finding by Judge Bland that it was more likely than not Appellant committed a probation violation. Appellant has failed to establish any abuse of discretion. Jones, 1988 OK CR 20, ¶ 8, 749 P.2d at 565.

DECISION

The revocation of Appellant’s suspended sentences in McIntosh County District Court Case Nos. CF-2012-45 and CF-2012-60 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. 21 O.S. § 1378(B)
3. 21 O.S. § 1289.9
4. 21 O.S. § 1289.11
5. 21 O.S. § 645
6. CF-2016-243
7. 20 O.S.2011, § 3001.1
8. U.S. v. Villano, 816 F.2d 1448, 1450-51 (10th Cir. 1987)
9. Simpson v. State, 1994 OK CR 40, I' 3, 11, 23, 876 P.2d 690, 693, 694-95, 698
10. United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993)
11. Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
12. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)
13. Richardson v. State, 1992 OK CR 76, I 7, 841 P.2d 603, 605
14. Richardson, 1992 OK CR 76, I 8, 841 P.2d at 605
15. Hammon v. State, 2000 OK CR 7, I 46, 999 P.2d 1082, 1094
16. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
17. Tilden U. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556
18. 20 O.S.2011, § 3001.1

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1283 - Possession of a Firearm After Conviction
• Okla. Stat. tit. 21 § 1378 - Threatening to Perform an Act of Violence
• Okla. Stat. tit. 21 § 1289.9 - Carrying a Firearm While Under the Influence
• Okla. Stat. tit. 21 § 1289.11 - Reckless Conduct with a Firearm
• Okla. Stat. tit. 21 § 645 - Assault and Battery With a Dangerous Weapon
• Okla. Stat. tit. 20 § 3001.1 - Plain Error Doctrine
• Okla. Stat. tit. 22 § 18 - Rules of the Oklahoma Court of Criminal Appeals

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:

• LeMay v. Rahal, 1996 OK CR 21, ¶ 18-20, 917 P.2d 18, 22
• Simpson v. State, 1994 OK CR 40, ¶ 3, 11, 23, 876 P.2d 690, 693, 694-95, 698
• Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923
• Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)
• Richardson v. State, 1992 OK CR 76, ¶ 7, 841 P.2d 603, 605
• Hammon v. State, 2000 OK CR 7, ¶ 46, 999 P.2d 1082, 1094
• Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565
• Tilden v. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554, 556