Jeremy Lance Labby v The State Of Oklahoma

RE-2018-858

Filed: Aug. 15, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jeremy Lance Labby appealed his conviction for Unauthorized Use of a Motor Vehicle. His conviction and sentence were upheld in Cherokee County District Court Case No. CF-2015-149. Labby argued that revoking his suspended sentence was too harsh since he was making efforts to follow probation rules. However, the court found that he had committed several new crimes while on probation, which justified the decision. The court affirmed the full revocation of his suspended sentence. Judge Lumpkin dissented.

Decision

The revocation of Appellant's suspended sentence in Cherokee County District Court Case No. CF-2015-149 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 the revocation of the suspended sentence?
• Did the State provide sufficient evidence to justify the full revocation of the suspended sentence?
• Was the decision to revoke the suspended sentence based on the appellant's multiple violations of probation?
• Did the trial court consider the appellant's efforts to comply with probation requirements in its decision?
• Was the revocation in full justified despite the possibility of a lesser revocation?

Findings

• The court did not err in revoking the suspended sentence in full.
• The evidence was sufficient to support multiple violations of probation.
• The revocation of the suspended sentence was not an abuse of discretion.
• The revocation decision is affirmed.

RE-2018-858

Aug. 15, 2019

Jeremy Lance Labby

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Appellant appeals from the revocation of his suspended sentence in Cherokee County District Court Case No. CF-2015-149. In this case, Appellant was charged with Unauthorized Use of a Motor Vehicle, in violation of 47 O.S.2011, § 4-102. On December 15, 2016, Appellant entered a plea of no contest and was sentenced to three years imprisonment, with all three years suspended. On June 20, 2018, the State filed a 2nd Amended Motion to Revoke Suspended Sentence alleging Appellant committed several violations of his rules and conditions of probation including new crimes consisting of two counts of Assault and Battery on a Police Officer, as alleged in Cherokee County District Court Case No. CF-2017-51; Theft of Property as alleged in Benton County, Arkansas District Court Case No. CR-2017-291-1; and First Degree Burglary and Resisting Arrest, as alleged in Cherokee County District Court Case No. CF-2017-758. Following a revocation hearing, the Honorable Gary Huggins, Special Judge, revoked Appellant’s suspended sentence in full.

In his sole proposition, Appellant maintains revocation in full was excessive and claims this revocation order should be modified. Appellant argues this revocation was an abuse of discretion because he possessed a limited intellect and was allegedly making good faith efforts to comply. Appellant notes that he was current on his probation fees and had met with his probation officers as ordered. According to Appellant, revocation in full was an abuse of Judge Huggins’s discretion. Appellant’s claims are without merit. A suspended sentence is a matter of grace. Demry v. 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 a suspended sentence in full. Tilden U. 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, the State established that after being convicted and allowed to remain in the community on probation, Appellant committed multiple probation violations including several new crimes. 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. The State filed a petition setting forth the grounds for the revocation and competent evidence justifying the full revocation was presented to the trial court. 22 O.S.Supp.2016, § 991b(A). Appellant was on probation for Unauthorized Use of a Motor Vehicle and one of the new felony crimes Appellant committed while on probation was theft of a car. While on probation, Appellant committed crimes in two states and committed several additional violations of his rules and conditions of probation. The fact that Judge Huggins could have revoked less than the full suspended sentence, and chose not to, does not establish that this revocation is an abuse of discretion. Jones, 1988 OK CR 20, I 8, 749 P.2d at 565.

DECISION The revocation of Appellant’s suspended sentence in Cherokee County District Court Case No. CF-2015-149 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 CHEROKEE COUNTY, THE HONORABLE GARY HUGGINS, SPECIAL JUDGE

APPEARANCES AT REVOCATION

APPEARANCES ON APPEAL
CRYSTAL JACKSON MARK HOOVER 239 W. KEETOOWAH P. O. BOX 926 TAHLEQUAH, OK 74464 NORMAN, OK 73070 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT
CODY BOWLIN MIKE HUNTER ASST. DISTRICT ATTORNEY OKLA. ATTORNEY GENERAL 213 W. DELAWARE THEODORE PEEPER TAHLEQUAH, OK 74464 ASST. ATTORNEY GENERAL COUNSEL FOR STATE 313 N.E. 21st STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE

OPINION BY: LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur RA/F

Click Here To Download PDF

Footnotes:

1. 47 O.S.2011, § 4-102
2. Demry v. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147
3. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557 (citing McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745)
4. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
5. 22 O.S.Supp.2016, § 991b(A)
6. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019)

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 4-102 - Unauthorized Use of a Motor Vehicle
• Okla. Stat. tit. 22 § 991b(A) - Revocation of Suspended Sentence
• Okla. Stat. tit. 22, Ch. 18, App. - 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:

No case citations found.