Latarsha Grant v The State of Oklahoma

RE-2018-231

Filed: Jun. 6, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Latarsha Grant appealed her conviction for violating her probation. Conviction and sentence was for the revocation of her suspended sentences totaling 3117 days. Judge Kuehn dissented.

Decision

The order of the District Court of Pontotoc County revoking the balance of Appellant's concurrent suspended sentences (3117 days) in Case Nos. CF-2007-359 and CF-2011-269 in the District Court of Pontotoc County 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 in revoking Ms. Grant's suspended sentences based on incompetent evidence, violating her right to due process?
• Did the court abuse its discretion by violating Ms. Grant's statutory and due process rights to confront adverse witnesses?
• Did the trial court lack jurisdiction to revoke Ms. Grant's suspended sentence in CF-2011-269 for an offense to which she did not plead?
• Did the trial court abuse its discretion in revoking Ms. Grant's suspended sentence in CF-2011-269 for an offense to which she did not plead?
• Did Ms. Grant receive an excessive sentence?
• Did Ms. Grant receive ineffective assistance of counsel?
• Should inaccuracies in CF-2011-269 be corrected by entry of a nunc pro tunc order?

Findings

• the court did not err in revoking Appellant's suspended sentences based on competent evidence
• the court did not err in allowing the admission of hearsay evidence as the Oklahoma Evidence Code does not apply in probation revocation proceedings
• the court had jurisdiction to revoke Appellant's suspended sentence in CF-2011-269 for offenses related to her probation violations
• the court did not abuse its discretion in revoking Appellant's suspended sentence in CF-2011-269
• Appellant's sentence was not excessive
• Appellant did not receive ineffective assistance of counsel
• inaccuracies in CF-2011-269 will not be corrected by a nunc pro tunc order
• the order of the District Court revoking the balance of Appellant's concurrent suspended sentences is affirmed

RE-2018-231

Jun. 6, 2019

Latarsha Grant

Appellant

v

The State of Oklahoma

Appellee

OPINION

KUEHN, VICE PRESIDING JUDGE: Appellant, Latarsha Grant, appeals from the revocation of the balance of her concurrent suspended sentences (3117 days) in Case Nos. CF-2007-359 and CF-2011-269 in the District Court of Pontotoc County, by the Honorable Gregory D. Pollard, Special Judge. On October 23, 2007, Appellant entered a plea of guilty in Case No. CF-2007-359 to Assault and Battery With a Dangerous Weapon and was convicted and sentenced to a term of ten years, with the sentence suspended. On August 8, 2011, the State filed a motion to revoke Appellant’s suspended sentence in Case No. CF-2007-359 alleging she violated probation by committing the new offenses of Distribution of CDS Within 2,000 feet of Recreational Area; and Obtaining Money, Property or Valuable Thing by Means of a False and Bogus Check. On May 31, 2012, Appellant entered a plea of guilty in Case No. CF-2011-269 to one count of Distribution of CDS Within 2,000 feet of Recreational Area, after former conviction of a felony, and sentencing was continued. Also on May 31, 2012, Appellant stipulated to the motion to revoke her suspended sentence in Case No. CF-2007-359 and sentencing was continued. On August 30, 2012, Appellant was convicted and sentenced in Case No. CF-2011-269 to a term of ten years, with the sentence suspended after completion of the FORT program and ordered to run concurrently with Case No. CF-2007-359. In Case No. CF-2007-359, Appellant’s suspended sentence was revoked for sufficient time to complete the FORT program, with the balance remaining suspended and ordered to run concurrently with Case No. CF-2011-269. On March 17, 2014, the District Court conducted a judicial review of Appellant’s sentencing in both cases. The District Court found that Appellant had completed the RTP program, an equivalent of the FORT program, and ordered that she be released from incarceration with the balance of her sentences suspended.

On September 29, 2017, the State filed a motion to revoke Appellant’s suspended sentences in both cases alleging she violated probation by committing the new crimes of Count 1 – First Degree Robbery By Force and Fear, and Count 2 – Conspiracy to Commit a Felony, charged in Pontotoc County District Court Case No. CF-2017-485. On February 26, 2018, the revocation hearing was held before Judge Pollard in conjunction with Appellant’s preliminary hearing in Case No. CF-2017-485. At the hearing, the State presented the testimony of the victim and two police officers who investigated the robbery. The evidence showed that Appellant and two co-defendants developed a plan to rob a pizza delivery person. One of the co-defendants placed the call to have pizza delivered to Appellant’s trailer house. After arriving, the pizza delivery person couldn’t find the trailer so she called and asked someone to come outside. She saw Appellant standing on the porch of a trailer and asked if Appellant was going to pay for the pizza. Appellant was mumbling and saying no when the other co-defendant ran up. The other co-defendant put a gun to the back of the pizza delivery person’s head, and robbed her of her money bag and cell phone. Evidence showed that Appellant was later given money taken during the robbery. Police determined that the cell phone used to place the pizza order probably belonged to Appellant. The same phone number had been used to place four other pizza orders during the summer of 2017 that had been delivered to Appellant’s trailer. After hearing the evidence and arguments, Judge Pollard bound Appellant over for trial in Case No. CF-2017-485, and also bound her co-defendants over on the same charges in their cases. Judge Pollard found Appellant’s new crimes constituted violations of probation and revoked in full the balance of Appellant’s suspended sentences (3117 days).

Appellant filed this appeal asserting seven propositions of error:

PROPOSITION I: THE TRIAL COURT ABUSED ITS DISCRETION IN REVOKING MS. GRANT’S SUSPENDED SENTENCES BASED ON INCOMPETENT EVIDENCE, WHICH VIOLATED HER RIGHT TO DUE PROCESS UNDER THE 5TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE II, § 7 OF THE OKLAHOMA CONSTITUTION.

PROPOSITION II: THE COURT ABUSED ITS DISCRETION BY VIOLATING MS. GRANT’S STATUTORY AND DUE PROCESS RIGHTS TO CONFRONT ADVERSE WITNESSES.

PROPOSITION III: THE TRIAL COURT LACKED JURISDICTION TO REVOKE MS. GRANT’S SUSPENDED SENTENCE IN CF-2011-269 FOR AN OFFENSE TO WHICH SHE DID NOT PLEAD.

PROPOSITION IV: IN THE ALTERNATIVE TO PROPOSITION III, SUPRA, MS. GRANT ARGUES THAT THE TRIAL COURT ABUSED ITS DISCRETION IN REVOKING HER SUSPENDED SENTENCE IN CF-2011-269 FOR AN OFFENSE TO WHICH SHE DID NOT PLEAD.

PROPOSITION V: MS. GRANT RECEIVED AN EXCESSIVE SENTENCE.

PROPOSITION VI: MS. GRANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

PROPOSITION VII: INACCURACIES IN CF-2011-269 SHOULD BE CORRECTED BY ENTRY OF A NUNC PRO TUNC ORDER.

ANALYSIS
Appellant’s Proposition I states the District Court abused its discretion by revoking her suspended sentences based on incompetent evidence. Appellant doesn’t explain what evidence was incompetent or how it was incompetent. Appellant simply argues the evidence was insufficient. As to the robbery, Appellant argues that she was not involved in the actual robbery, and that there was insufficient proof that force or fear was used. As to the conspiracy, Appellant argues there was insufficient proof that she was a party to an agreement to commit the robbery. Appellant also argues that the testimony of one of the police officers contained hearsay statements of what the co-defendants told the officer about Appellant’s involvement in the robbery. At a revocation hearing, the prosecution need only show by a preponderance of the evidence that the terms of the accused’s suspension had been violated. Fleming v. State, 1988 OK CR 162, ¶ 4, 760 P.2d 206, 207. All sufficiency of the evidence claims are reviewed under the Spuehler standard. Hogan v. State, 2006 OK CR 19, ¶ 21, 139 P.3d 907, 919, citing Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. This Court thus reviews Appellant’s appeal of the sufficiency of the revocation hearing evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements of the alleged violations of probation by a preponderance of the evidence. Id. The decision of the District Court to revoke a suspended sentence in whole or in part based upon the evidence presented is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565. We find that there was sufficient evidence from which a rational trier of fact could have found by a preponderance of the evidence that Appellant committed the alleged violations of probation. Evidence was presented that Appellant was involved in the development of the plan to rob the pizza delivery person. The pizza order was to be delivered to Appellant’s trailer house and Appellant was present when the robbery occurred. This Court has consistently held that fear is presumed on the part of a victim when a firearm is pointed at him. Anderson v. State, 1986 OK CR 57, ¶ 12, 719 P.2d 1282, 1284-85. Finally, evidence taken from Appellant herself showed that she had knowledge of what had transpired during the robbery. Judge Pollard’s decision that Appellant violated her probation was not an abuse of discretion. Proposition I is denied.

In Proposition II, Appellant argues that the police officer’s testimony concerning what he was told by Appellant’s co-defendants is hearsay and is not substantially trustworthy. Appellant complains that she was not allowed to confront and cross-examine her co-defendants at the revocation hearing. First, the Oklahoma Evidence Code and its provisions concerning hearsay evidence do not apply in [p]roceedings for revoking probation. 12 O.S.2011, § 2103(B)(2). Second, witnesses with first-hand knowledge of the robbery testified at Appellant’s revocation / preliminary hearing. Contra Montemayor v. State, 1988 OK CR 285, 766 P.2d 1000. Third, Appellant confronted and cross-examined all three of the witnesses called by the State at the hearing. See Wortham v. State, 2008 OK CR 18, 188 P.3d 201. Fourth, Appellant elected not to call any witnesses or present any defense at the hearing and never objected to the police officer’s testimony. Finally, the officer’s testimony was corroborated by (a) the victim’s testimony; (b) evidence that the pizza order was to be delivered to Appellant’s trailer house; (c) Appellant’s presence at the robbery; and (d) Appellant’s knowledge of how the robbery transpired. See Hampton v. State, 2009 OK CR 4, 203 P.3d 179. Proposition II is denied.

In Propositions III, IV, V, VI, and VII, Appellant challenges the validity of her original plea of guilty and her original conviction and sentencing in Case No. CF-2011-269. Such arguments are properly made by motion to withdraw guilty plea in the District Court, and by petition for writ of certiorari to this Court. Section IV, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). The scope of review in a revocation appeal is limited to the validity of the revocation order. Rule 1.2(D)(4), Rules, supra. Therefore, the State is correct that these propositions have not been properly presented to the District Court and are outside the scope of this revocation appeal. Propositions III, IV, V, VI, and VII are denied.

DECISION
The order of the District Court of Pontotoc County revoking the balance of Appellant’s concurrent suspended sentences (3117 days) in Case Nos. CF-2007-359 and CF-2011-269 in the District Court of Pontotoc County 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. Okla. Stat. tit. 22 § 2103(B)(2)
2. Okla. Stat. tit. 22 § 304
3. Okla. Stat. tit. 22 § 950
4. Okla. Stat. tit. 22 § 981

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Murder in the First Degree
• Okla. Stat. tit. 21 § 801 (2011) - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 63 § 2-101 (2011) - Controlled Dangerous Substances
• Okla. Stat. tit. 12 § 2103 (2011) - Hearsay Evidence
• Okla. Stat. tit. 22 § 978 (2011) - 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:

• Fleming v. State, 1988 OK CR 162, I 4, 760 P.2d 206, 207
• Hogan v. State, 2006 OK CR 19, I 21, 139 P.3d 907, 919
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
• Anderson v. State, 1986 OK CR 57, I 12, 719 P.2d 1282, 1284-85
• Montemayor v. State, 1988 OK CR 285, 766 P.2d 1000
• Wortham v. State, 2008 OK CR 18, 188 P.3d 201
• Hampton v. State, 2009 OK CR 4, 203 P.3d 179