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ORIGINAL *1043277251 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA DUSTIN ARDELL CRUCE, ) NOT FOR PUBLICATION Appellant, ) V. No. RE-2018-644 FILED IN COURT OF CRIMINAL APPEALS THE STATE OF OKLAHOMA, STATE OF OKLAHOMA Appellee. ) APR 25 2019 JOHN D. HADDEN SUMMARY OPINION CLERK ROWLAND, JUDGE: Appellant appeals from the revocation of his suspended sentence in Okfuskee County District Court Case No. CF-2016-143, by the Honorable Lawrence W. Parish. On February 22, 2017, Appellant entered a plea of guilty to Assault With a Dangerous Weapon, in violation of 21 O.S.2011, § 645 (Count 1), Assault and Battery With a Dangerous Weapon, in violation of 21 O.S.2011, § 645, (Count 2), Burglary in the Second Degree, in violation of 21 O.S.2011, § 1435 (Count 3), Knowingly Concealing Stolen Property, in violation of 21 O.S.Supp.2016, § 1713 (Count 4), and Possession of a Controlled Dangerous Substance, in violation of 63 O.S.Supp.2016, § 2-402 (Count 5) in Case No. CF- 2016-143. Appellant was convicted and sentenced to ten years imprisonment each for Counts 1 and 2, seven years imprisonment for Count 3, and five years imprisonment each for Counts 4 and 5. Judge Parish suspended the execution of Appellant’s sentences in whole and ordered them served concurrently. On October 31, 2017, the State filed a Motion to Revoke Suspended Sentence alleging Appellant failed to pay reimbursement fees and committed the new crime of Domestic Abuse – Assault and Battery Against a Pregnant Woman as alleged in Okfuskee County District Court Case No. CM-2017-126. A hearing was held on the State’s motion to revoke on May 2, 2018. At the hearing, the parties announced the State would not pursue revocation based on the alleged Case No. CM-2017-126 new crime. The State abandoned this alleged violation as part of a plea agreement entered into with Appellant in Case No. CM-2017-126. Pursuant to this agreement, Appellant entered a plea of guilty in Case No. CM-2017-126 on October 6, 2017. As a result, the only alleged probation violation before the trial court at this hearing was Appellant’s failure to pay reimbursement fees as ordered. Following this revocation hearing, Judge Parish revoked five years of Appellant’s remaining suspended sentence. 2 Appellant claims the trial court abused its discretion by refusing to allow Appellant to remain in the community. Appellant maintains his performance on probation in this case required a more lenient or “more just result” and this revocation did not promote the “interests of justice.” The above quoted arguments are from Sparks U. State and Livingston U. State and neither case requires such a result in a revocation appeal. Sparks U. State, 1987 OK CR 247, II 7-8, 745 P.2d 751, 753; Livingston U. State, 1990 OK CR 40, 19 10-11, 795 P.2d 1055, 1058. In a revocation hearing the State is only required to prove violations by a preponderance of the evidence. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557 (citing McQueen U. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745). Here, Appellant stipulated to violating the rules and conditions of his probation by failing to pay reimbursement fees as ordered. In Winbush, this Court noted once the prosecution establishes a probationer has violated rules and conditions of probation by failing to make ordered payments “the burden is then on the probationer to ‘demonstrate’ sufficient bona fide efforts to make required payments” have been made. Winbush v. State, 2018 OK CR 38, I 11, 433 P.3d 1275, 1279 (citing Bearden U. 3 Georgia, 461 U.S. 660, 660-61 (syllabus b), 670, 671, 673 (fn.12), 103 S.Ct. 2064, 2066 (syllabus b), 2071-72, 2072, 2073 (fn.12), 76 L.Ed.2d 221, 225 (syllabus b), 231-33, 233 (fn. 12) (1983). Appellant presented no such evidence to the trial court in this case, although he did inform the court that he was working but had not yet been able to pay any of his earnings toward these obligations. A suspended sentence is a matter of grace. Hagar U. State, 1999 OK CR 35, I 8, 990 P.2d 894, 897; Demry U. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147. The State must only prove one violation of probation in order to revoke Appellant’s suspended sentence in full. Tilden, 2013 OK CR 10, I 10, 306 P.3d at 557. Judge Parish only revoked half of Appellant’s remaining suspended sentence. 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 U. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. In this case, the State filed a motion 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 4 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 Okfuskee County District Court Case No. CF-2016-143 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. AN APPEAL FROM THE DISTRICT COURT OF OKFUSKEE COUNTY, THE HONORABLE LAWRENCE W. PARISH, DISTRICT JUDGE APPEARANCES AT REVOCATION APPEARANCES ON APPEAL CURT ALLEN RICKI J. WALTERSCHEID P.O. BOX 998 P.O. BOX 926 OKMULGEE, OK 74447 NORMAN, OK 73070 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT EMILY MUELLER MIKE HUNTER ASST. DISTRICT ATTORNEY OKLA. ATTORNEY GENERAL P.O. BOX 225 SHERI M. JOHNSON OKEMAH, OK 74859 ASST. ATTORNEY GENERAL COUNSEL FOR STATE 313 N.W. 21st STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY: ROWLAND, J. LEWIS, P.J.: Concur KUEHN, V.P.J.:Concur in Results LUMPKIN, J.: Concur HUDSON, J.: Concur 5

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