Blog

RE-2018-155

  • Post author:
  • Post category:RE

Vester Von Downum v State Of Oklahoma

RE-2018-155

Filed: May 23, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Vester Von Downum appealed his conviction for planning or attempting to commit an act of violence. His conviction and sentence were for ten years, with two years served and the rest on probation. Judge Norman D. Thygesen revoked his probation after he was accused of contacting a person he had a protective order against. Downum argued that the State did not prove he violated the protective order, that revoking his sentence was too harsh, and there was a mistake in the court's paperwork. The court found that there was enough evidence to support the decision to revoke Downum's sentence and that the punishment was not excessive. Although they acknowledged there was an error in the paperwork saying he pleaded guilty instead of being found guilty by a jury, they decided to fix that mistake. The court's decision to revoke Downum's sentence was upheld. Judge Kuehn, Lumpkin, Hudson, and Rowland agreed with the opinion.

Decision

The order of the District Court of Muskogee County revoking Appellant's suspended sentence in Case No. CF-2014-656 is AFFIRMED. The matter is REMANDED to the District Court of Muskogee County for entry of an order nunc pro tunc consistent with this opinion. 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 sufficient evidence to support the claim that Downum violated the terms of his probation by violating a protective order?
  • Was the order of revocation excessive based on the facts and circumstances of the case?
  • Should the clerical error in the written order of revocation be corrected by an order nunc pro tunc?

Findings

  • The court found that the State proved by a preponderance of the evidence that Downum violated the terms of his probation by violating a protective order.
  • The court determined that the revocation of Downum's suspended sentence was not excessive and that there was no abuse of discretion by the judge.
  • The court identified a scrivener's error in the judgment and directed the district court to correct the judgment to reflect that Downum was found guilty after a jury trial.

RE-2018-155

May 23, 2019

Vester Von Downum

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: On June 15, 2015, Appellant Downum, represented by counsel, was convicted by a jury of Planning/Conspiring/Endeavoring to Perform an Act of Violence in Muskogee County Case No. CF-2014-656. Downum was sentenced to ten (10) years, with all but the first two (2) years suspended, subject to rules and conditions of probation. On December 6, 2017, the State filed an Application to Revoke Downum’s suspended sentence alleging he violated the terms and conditions of his probation by violating a protective order issued in PO-2014-218. At a hearing conducted February 7, 2018, the District Court of Muskogee County, the Honorable Norman D. Thygesen, Associate District Judge, revoked the remainder of Downum’s suspended sentence in full. From this Judgment and Sentence, Downum appeals raising the following propositions of error:

1. The State failed to prove by a preponderance of the evidence that Mr. Downum violated the terms of his probation by committing the new crime of violating a protective order;
2. The order of revocation in this case is excessive based on all the facts and circumstances and should be favorably modified by the Court; and
3. Clerical error in the written order revoking suspended sentence and commitment should be corrected by an order nunc pro tunc.

The revocation of Downum’s suspended sentence is AFFIRMED. The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. Tilden v. State, 2013 OK CR 10, ¶ 3-4, 306 P.3d 554, 555-556; Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019); Nesbitt v. State, 2011 OK CR 19, ¶ 5, 255 P.3d 435, 437; Grimes v. State, 2011 OK CR 16, ¶ 17, 251 P.3d 749, 755. We examine the basis for the factual determination and consider whether the court abused its discretion. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565; Crowels v. State, 1984 OK CR 29, ¶ 6, 675 P.2d 451, 453; Sparks v. State, 1987 OK CR 247, ¶ 5, 745 P.2d 751, 752.

Downum argues at proposition one that the State failed to prove by a preponderance of the evidence that he violated the terms of protective order PC-2014-218. The State, in seeking to revoke a suspended sentence based upon a new violation of the law, must either prove the finality of the judgment and sentence or each element of the charged offense alleged to constitute the violation. Pickens v. State, 1989 OK CR 58, ¶ 13, 779 P.2d 596, 598; Sams v. State, 1988 OK CR 137, ¶ 6, 758 P.2d 834, 835. However, alleged violations of conditions of a suspended sentence need only be proven by a preponderance of the evidence. Robinson v. State, 1991 OK CR 44, ¶ 3, 809 P.2d 1320, 1322; Fleming v. State, 1988 OK CR 162, ¶ 4, 760 P.2d 206, 207; Lewis v. State, 1897 OK CR 138, ¶ 9, 739 P.2d 534, 535. The evidence presented at the revocation hearing supporting the protective order violation was conflicting. The victim, T.H., alleged that Downum contacted her via Facebook messaging approximately two weeks after being released from prison. Although the message content was not threatening, T.H. testified that she considered any contact from Downum to be threatening because of his past behavior. She also testified that in order to message her on Facebook, Downum had to actively seek her out and search for her name (which had been changed recently due to her re-marriage) and affirmatively contact her. T.H. testified that because of the way such contact had to be initiated, the contact was intentional and not accidental. Downum testified that the message was sent to T.H. accidentally as part of a group text, of which T.H. had been a member prior to the issuance of the protective order. Downum denied intentionally contacting T.H. and stated that the whole incident was an accident.

The testimony at the revocation hearing was conflicting. When a case is tried by the court, and there is evidence reasonably tending to support the trial court’s findings, those findings will not be disturbed on appeal. Monroe v. State, 1987 OK CR 279, ¶ 6, 748 P.2d 519, 520; Fox v. State, 1976 OK CR 307, ¶ 16, 556 P.2d 1281, 1284. In the presence of conflicting evidence, this court will not interfere with a fact finder’s determination if there is competent evidence to support the verdict. Gilson v. State, 2000 OK CR 14, ¶ 77, 8 P.3d 883, 910. Although conflicting, there was more than sufficient evidence to support the trial court’s finding that Downum violated the protective order and his terms and conditions of probation. We find no abuse of discretion in Judge Thygesen’s decision to revoke Downum’s suspended sentence.

We also find no merit in Downum’s second proposition of error. He argues that revocation of his suspended sentences in full is excessive, and that the better course of action would be to impose some lesser sanction than revocation of his remaining eight years. This Court has repeatedly held that violation of even one condition of probation is sufficient to justify revocation of a suspended sentence. Tilden v. State, 2013 OK CR 10, ¶ 10, 306 P.3d 554, 557; McQueen v. State, 1987 OK CR 162, ¶ 2, 740 P.2d 744, 745. In this instance, less than 2 weeks after being released from the custody of the Oklahoma Department of Corrections, Downum violated the terms of a protective order by contacting T.H. Based on the record presented in this matter, we find no merit in Downum’s claim that revocation of his entire suspended sentence is excessive and find no abuse of discretion in Judge Thygesen’s decision to revoke Downum’s suspended sentence in full.

As to Proposition III, we find the existence of a scrivener’s error in the Judgment and Sentence filed February 9, 2018. Although the judgment and sentence reflects that Downum entered a guilty plea, the record reflects and the parties agree that Downum was found guilty after a jury trial. This obvious clerical error should be corrected by order nunc pro tunc. Sears v. State, 2019 OK CR 8, ¶ 7-8, P.3d; Neloms v. State, 2012 OK CR 7, ¶ 44, 274 P.3d 161, 172. Upon REMAND, the district court is directed to enter an order nunc pro tunc correcting the February 9, 2018 judgment and sentence to accurately reflect that Downum was found guilty after a jury trial in the above-referenced matter.

DECISION

The order of the District Court of Muskogee County revoking Appellant’s suspended sentence in Case No. CF-2014-656 is AFFIRMED. The matter is REMANDED to the District Court of Muskogee County for entry of an order nunc pro tunc consistent with this opinion. 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. Tilden U. State, 2013 OK CR 10, II 3-4, 306 P.3d 554, 555-556;
  2. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019);
  3. Nesbitt U. State, 2011 OK CR 19, I 5, 255 P.3d 435, 437;
  4. Grimes v. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755;
  5. Jones U. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565;
  6. Crowels v. State, 1984 OK CR 29, I 6, 675 P.2d 451, 453;
  7. Sparks v. State, 1987 OK CR 247, 5, 745 P.2d 751, 752;
  8. Pickens U. State, 1989 OK CR 58, I 13, 779 P.2d 596, 598;
  9. Sams U. State, 1988 OK CR 137, I 6, 758 P.2d 834, 835;
  10. Robinson U. State, 1991 OK CR 44, I 3, 809 P.2d 1320, 1322;
  11. Fleming U. State, 1988 OK CR 162, I 4, 760 P.2d 206, 207;
  12. Lewis v. State, 1897 OK CR 138, I 9, 739 P.2d 534, 535;
  13. Monroe U. State, 1987 OK CR 279, I 6, 748 P.2d 519, 520;
  14. Fox U. State, 1976 OK CR 307, I 16, 556 P.2d 1281, 1284;
  15. Gilson U. State, 2000 OK CR 14, I 77, 8 P.3d 883, 910;
  16. Tilden U. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557;
  17. McQueen v. State, 1987 OK CR 162, II 2, 740 P.2d. 744, 745;
  18. Sears U. State, 2019 OK CR 8, I 7-8, P.3d;
  19. Neloms U. State, 2012 OK CR 7, I 44, 274 P.3d 161, 172.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 701.8 - Revocation of suspended sentence
  • Okla. Stat. tit. 22 § 1.2(D)(4) - Rules of the Oklahoma Court of Criminal Appeals
  • Okla. Stat. tit. 22 § 3.15 - Mandate of the 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:

  • Tilden v. State, 2013 OK CR 10, I 3-4, 306 P.3d 554, 555-556
  • Nesbitt v. State, 2011 OK CR 19, I 5, 255 P.3d 435, 437
  • Grimes v. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755
  • Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
  • Crowels v. State, 1984 OK CR 29, I 6, 675 P.2d 451, 453
  • Sparks v. State, 1987 OK CR 247, I 5, 745 P.2d 751, 752
  • Pickens v. State, 1989 OK CR 58, I 13, 779 P.2d 596, 598
  • Sams v. State, 1988 OK CR 137, I 6, 758 P.2d 834, 835
  • Robinson v. State, 1991 OK CR 44, I 3, 809 P.2d 1320, 1322
  • Fleming v. State, 1988 OK CR 162, I 4, 760 P.2d 206, 207
  • Lewis v. State, 1897 OK CR 138, I 9, 739 P.2d 534, 535
  • Monroe v. State, 1987 OK CR 279, I 6, 748 P.2d 519, 520
  • Fox v. State, 1976 OK CR 307, I 16, 556 P.2d 1281, 1284
  • Gilson v. State, 2000 OK CR 14, I 77, 8 P.3d 883, 910
  • McQueen v. State, 1987 OK CR 162, II 2, 740 P.2d 744, 745
  • Sears v. State, 2019 OK CR 8, I 7-8, P.3d
  • Neloms v. State, 2012 OK CR 7, I 44, 274 P.3d 161, 172

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,