Desmond Zhumonsha Smith v The State Of Oklahoma

RE-2018-208

Filed: May 16, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Desmond Zhumonsha Smith appealed his conviction for violating probation. His original conviction was for Possession of a Controlled Dangerous Substance and Falsely Personate Another to Create Liability, resulting in a twenty-year sentence for each crime. The court decided to keep his ten-year suspended sentence revoked. Judge Leah Edwards found enough evidence that he broke probation rules by committing new crimes. The decision to revoke Smith's sentence is affirmed. Judge Rowland disagreed with part of the decision.

Decision

The revocation of Appellant's suspended sentence in Garvin County District Court Case No. CF-2015-498 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 sufficient evidence to prove Appellant violated the rules and conditions of his probation?
• Did the trial court abuse its discretion in revoking a portion of Appellant's suspended sentence?
• Was the revocation of ten years of Appellant's suspended sentence excessive?

Findings

• the court did not err in finding sufficient evidence to support the violation of probation
• the court did not abuse its discretion in revoking the suspended sentence

RE-2018-208

May 16, 2019

Desmond Zhumonsha Smith

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Appellant appeals from the revocation of his suspended sentence in Garvin County District Court Case No. CF-2015-498, by the Honorable Leah Edwards, District Judge. On February 26, 2016, Appellant entered a plea of nolo contendere to Possession of a Controlled Dangerous Substance, in violation of 63 O.S.2011, § 2-402 (Count 1), and Falsely Personate Another to Create Liability, in violation of 21 O.S.2011, § 1531(4) (Count 2), in Case No. CF-2015-498. Appellant was convicted and sentenced to twenty years imprisonment each for Counts 1 and 2.

In his first proposition Appellant claims the State provided insufficient evidence to prove Appellant violated the rules and conditions of his probation by committing the new Garvin County crimes of Unauthorized Use of a Motor Vehicle and Placing Bodily Fluid on a Government Employee. This argument is without merit. In a revocation hearing the State is only required to prove a violation by a preponderance of the evidence. Tilden v. State, 2013 OK CR 10, 11 5, 10, 306 P.3d 554, 556-57 (internal citation omitted). A preponderance of the evidence means the evidence establishes it is more likely than not the alleged probation violations occurred. Hammon v. State, 2000 OK CR 7, I 46, 999 P.2d 1082, 1094. Here the testimony of Officer Cooper and Sheriff Rhodes was sufficient to prove the new Garvin County crimes by a preponderance.

At Proposition II Appellant argues revocation of ten years of his twenty-year suspended sentence was excessive and maintains this revocation order should be modified. The State must only prove one violation of probation in order to revoke a suspended sentence in full. Tilden, 2013 OK CR 10, I 10, 306 P.3d at 557. In this case the State established a multitude of probation violations including several new crimes in two different counties. Moreover, Judge Edwards did not revoke Appellant’s remaining sentence in full. Proposition II is without merit. A suspended sentence is a matter of grace. Hagar v. State, 1999 OK CR 35, I 8, 990 P.2d 894, 897; Demry v. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147. 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. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. In this case, the State filed a petition setting forth the grounds for the revocation, and competent evidence justifying the revocation was presented to the trial court establishing the requirements necessary to revoke Appellant’s suspended sentence in full. 22 O.S. § 991b(A). Appellant has not shown an abuse of discretion. Jones, supra.

DECISION

The revocation of Appellant’s suspended sentence in Garvin County District Court Case No. CF-2015-498 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. 63 O.S.2011, § 2-402
2. 21 O.S.2011, § 1531(4)
3. Tilden U. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554, 556-57
4. Hammon U. State, 2000 OK CR 7, ¶ 46, 999 P.2d 1082, 1094
5. Hagar U. State, 1999 OK CR 35, ¶ 8, 990 P.2d 894, 897
6. Demry U. State, 1999 OK CR 31, ¶ 12, 986 P.2d 1145, 1147
7. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565
8. 22 O.S. § 991b(A)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 (2011) - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 1531 (2011) - Falsely Personate Another to Create Liability
• Okla. Stat. tit. 22 § 991b(A) - Revocation of Suspended Sentences

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, 306 P.3d 554
• Hammon v. State, 2000 OK CR 7, 999 P.2d 1082
• Hagar v. State, 1999 OK CR 35, 990 P.2d 894
• Demry v. State, 1999 OK CR 31, 986 P.2d 1145
• Jones v. State, 1988 OK CR 20, 749 P.2d 563