Brandon Lee Sharp v The State Of Oklahoma

RE-2018-657

Filed: Aug. 29, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Brandon Lee Sharp appealed his conviction for the revocation of his suspended sentences. His conviction and sentence were for life imprisonment after he was found to have violated his probation. Judge Rowland dissented.

Decision

The revocation of Appellant's suspended sentences in Delaware County District Court Case Nos. CF-2012-441, CF-2013-145, and CF-2014-152 are 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 delivery and filing of this decision.

Issues

• Was there sufficient evidence to support the revocation of Appellant's suspended sentences based on multiple violations of probation?
• Did the State provide adequate notice regarding the grounds for revocation, specifically concerning the alleged obstruction of officers?
• Did the revocation hearing adhere to the 20-day requirement established by law, and was there a valid waiver of that requirement?
• Did the trial court abuse its discretion in deciding to revoke Appellant's suspended sentences?

Findings

• Appellant's arguments regarding restitution and DA fees are without merit.
• Revocation was proper because obstructing was a lesser included charge of the crime alleged.
• Proposition II is without merit.
• Appellant has not established that the trial court abused its discretion.
• The revocation of Appellant's suspended sentences is AFFIRMED.

RE-2018-657

Aug. 29, 2019

Brandon Lee Sharp

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE:

Appellant appeals from the revocation of his suspended sentences in Delaware County District Court Case Nos. CF-2012-441, CF-2013-145, and CF-2014-152. On October 8, 2013, Appellant entered a plea of guilty to Possession of a Firearm, in violation of 21 O.S.2011, § 1283 in Delaware County District Court Case No. CF-2012-441; and Bail Jumping, in violation of 59 O.S.2011, § 1335 in Delaware County District Court Case No. CF-2013-145. Appellant was convicted and sentenced to ten years imprisonment in each case and the sentences were ordered to be served concurrently and be suspended in full.

On May 6, 2014, Appellant was charged with Endeavoring to Manufacture Methamphetamine, in violation of 63 O.S.Supp.2012, § 2-401(G) (Count 1); Use of a Firearm During the Commission of a Felony, in violation of 21 O.S.Supp.2012, § 1287 (Count 2); and Possession of a Firearm After Conviction of a Felony, in violation of 21 O.S.Supp.2012, § 1283 (Count 3), in Delaware County District Court Case No. CF-2014-152. On the same day, the State filed a Motion to Revoke Suspended Sentence in both Case Nos. CF-2012-441 and CF-2013-145, alleging Appellant committed the new crimes charged in Case No. CF-2014-152. Appellant entered a plea of guilty in Case No. CF-2014-152 and stipulated to the State’s petitions to revoke in Case Nos. CF-2012-441 and CF-2013-145. He was revoked in full on both of the State’s petitions and sentenced to life imprisonment in Case No. CF-2014-152, with all but the first fifteen years suspended for each count. The sentences in Case No. CF-2014-152 were ordered to be served concurrently with the sentences in Case Nos. CF-2012-441 and CF-2013-145. The trial court ordered that the remainder of Appellant’s sentences would be suspended upon successful completion of either the Drug Offender Work Camp 2 or the Keys to Life Program. Appellant was released from prison on February 4, 2016, after having completed the Keys to Life Program.

On November 3, 2017, the State filed a Second Amended Motion to Revoke Suspended Sentence in each case alleging Appellant committed the new crimes of Kidnapping and Escape from Arrest or Detention as alleged in Delaware County District Court Case No. CF-2017-330A; failed to obey all orders of the district court; failed to report and failed to notify his probation officer of a change in his residence. Following a revocation hearing, the trial court revoked Appellant’s remaining suspended sentences in full.

Appellant’s first argument in Proposition I is that the State failed to establish he failed to pay restitution or pay his DA fees. This argument is irrelevant. The State must only prove one violation of probation in order to revoke a suspended sentence in full. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557 (citing McQueen U. State, 1987 OK CR 162, II 2, 740 P.2d 744, 745). Here, the State proved multiple unrelated probation violations that were alleged in the amended petition to revoke. Appellant’s arguments regarding restitution and DA fees are without merit.

Appellant next argues in this proposition that revocation for obstructing officers is impermissible in this case because it was never alleged as a violation in a petition to revoke his suspended sentence. He maintains that because the State’s petition alleged he committed the new crime of Escape From Arrest or Detention, not Obstructing, he was provided inadequate notice of what he would have to defend. Appellant relies on 22 O.S.Supp.2016, § 991b(A) to argue the State failed to file a petition setting forth obstructing as a grounds for which it would seek to revoke Appellant’s suspended sentences. Revocation was proper here because in this case, obstructing was a lesser included charge of the crime alleged. This Court held in Ketterman U. State that revocation is proper when the evidence presented establishes a new law violation that was a lesser included offense of the crime alleged in the petition to revoke. Ketterman v. State, 1985 OK CR 138, II 4-5, 708 P.2d 1134, 1135. Proposition I is without merit and denied.

At Proposition II, Appellant argues this revocation violated the 20-day requirement found in 22 O.S.Supp2016, § 991b(A). The twenty-day period is calculated by comparing the date the defendant enters a plea of not guilty to a petition to revoke with the date of the revocation hearing. 22 O.S.Supp2016, § 991b(A). A revocation hearing cannot be held outside twenty days unless both parties waive the requirement. Id. In Grimes v. State this Court held this requirement satisfied where the appellant acquiesced to the delay within the twenty days following a plea of not guilty. Grimes U. State, 2011 OK CR 16, II 7, 251 P.3d 749, 753, modified on other grounds by Sears v. State, 2019 OK CR 8, I 8, P3d . Appellant relies on a November 15, 2017, trial court Minute which orders Appellant to appear on November 20, 2017, to “address issue of 20 days” in making this claim. Assuming Appellant is correct, and the November 15, 2017, appearance demonstrates Appellant entered a plea of not guilty, the record establishes Appellant acquiesced to the delays in holding this hearing. Id. He appeared three times with counsel, November 20-22, 2017, and agreed to a continuance at each appearance. On November 22, 2017, Appellant agreed to continue the revocation hearing to December 8, 2017. Proposition II is without merit.

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. “An ‘abuse of discretion’ has been defined by this Court as a ‘clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application.” Walker U. State, 1989 OK CR 65, IT 5, 780 P.2d 1181, 1183. Appellant has not established that the trial court abused its discretion.

DECISION

The revocation of Appellant’s suspended sentences in Delaware County District Court Case Nos. CF-2012-441, CF-2013-145, and CF-2014-152 are 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 delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2011, § 1283
2. 59 O.S.2011, § 1335
3. 63 O.S.Supp.2012, § 2-401(G)
4. 21 O.S.Supp.2012, § 1287
5. 22 O.S.Supp.2016, § 991b(A)
6. 22 O.S.Supp.2016, § 991b(A)
7. Grimes v. State, 2011 OK CR 16, ¶ 7, 251 P.3d 749, 753
8. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565
9. Walker v. State, 1989 OK CR 65, ¶ 5, 780 P.2d 1181, 1183
10. Tilden v. State, 2013 OK CR 10, ¶ 10, 306 P.3d 554, 557
11. Ketterman v. State, 1985 OK CR 138, ¶¶ 4-5, 708 P.2d 1134, 1135

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1283 (2011) - Possession of a Firearm After Conviction of a Felony
• Okla. Stat. tit. 59 § 1335 (2011) - Bail Jumping
• Okla. Stat. tit. 63 § 2-401(G) (Supp. 2012) - Endeavoring to Manufacture Methamphetamine
• Okla. Stat. tit. 21 § 1287 (Supp. 2012) - Use of a Firearm During the Commission of a Felony
• Okla. Stat. tit. 22 § 991b(A) (Supp. 2016) - 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, I 10, 306 P.3d 554, 557
• McQueen v. State, 1987 OK CR 162, II 2, 740 P.2d 744, 745
• Ketterman v. State, 1985 OK CR 138, II 4-5, 708 P.2d 1134, 1135
• Grimes v. State, 2011 OK CR 16, II 7, 251 P.3d 749, 753
• Sears v. State, 2019 OK CR 8, I 8
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
• Walker v. State, 1989 OK CR 65, II 5, 780 P.2d 1181, 1183