Misty Dawn Barrett v The State Of Oklahoma

RE-2018-868

Filed: Sep. 12, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Misty Dawn Barrett appealed her conviction for the revocation of her suspended sentences. The court upheld her conviction and sentence, confirming that she must serve the full amount of time originally suspended. Judge Kuehn noted that Barrett did not show that the judge made a mistake in revoking her sentences because she committed new crimes while on probation, which justified the decision. Judge Lewis, Judge Lumpkin, Judge Hudson, and Judge Rowland all agreed with this decision.

Decision

The revocation of Appellant's suspended sentences in Muskogee County District Court Case Nos. CF-2016-439, CF-2017-126, CF-2017-127, and CF-2017-129 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 the revocation of Appellant's remaining suspended sentences excessive?
• Did the trial court abuse its discretion in revoking Appellant's suspended sentences?
• Was there competent evidence presented to justify the revocation of Appellant's suspended sentences?
• Should the trial court have foreseen Appellant's actions given her history of drug addiction and rehabilitation?

Findings

• The court did not err in revoking Appellant's suspended sentences.
• Competent evidence was sufficient to justify the revocation of Appellant's remaining suspended sentences.
• The trial judge did not abuse his discretion in the revocation decision.
• The decision to revoke the suspended sentences was affirmed.

RE-2018-868

Sep. 12, 2019

Misty Dawn Barrett

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE:

Appellant appeals from the revocation of her suspended sentences in Muskogee County District Court Case Nos. CF-2016-439, CF-2017-126, CF-2017-127, and CF-2017-129. Appellant was charged with Possession of a Controlled Dangerous Substance (Count 1), Unlawful Possession of Drug Paraphernalia (Count 2), and Larceny of Merchandise From a Retailer (Count 3) in Case No. CF-2016-439; Larceny of an Automobile in Case No. CF-2017-126; Falsely Personating Another to Create Liability (Count 1), Possession of a Controlled Dangerous Substance (Count 2), Resisting an Officer (Count 3), Unlawful Possession of Drug Paraphernalia (Count 4), and Obstructing an Officer (Count 5) in Case No. CF-2017-127; and Uttering a Forged Instrument (Count 1), and Identity Theft – Use of Personal Information (Count 2) in Case No. CF-2017-129. Appellant entered pleas and was convicted and sentenced to the following terms of imprisonment: ten years for Count 1, one year for Count 2, and thirty days for Count 3 in Case No. CF-2016-439; ten years in Case No. CF-2017-126; ten years for Count 1, five years for Count 2, and one year each for Counts 3-5 in Case No. CF-2017-127; and one year for Count 1 and five years for Count 2 in Case No. CF-2017-129. The sentences were suspended and ordered to be served concurrently.

The State filed an Application to Revoke Suspended Sentence in all four cases and on October 25, 2017, the trial court revoked five years of Appellant’s suspended sentences. On July 25, 2018, the State filed a second Application to Revoke Suspended Sentence in all four cases alleging Appellant committed the new crimes of Possession of Contraband by an Inmate and Unlawful Possession of Drug Paraphernalia. Following a revocation hearing, the Honorable Mike Norman, District Judge, revoked Appellant’s remaining suspended sentences in full.

In her sole proposition, Appellant argues the revocation of her remaining suspended sentences was excessive and maintains this revocation order should be modified. Appellant argues that her actions should have been foreseen by the trial court when placing her on probation because drug addiction and rehabilitation naturally entail relapses. According to Appellant, Judge Norman abused his discretion because incarceration was not an effective solution in this case. Appellant’s claims are 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 U. 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 remaining suspended sentences in full. 22 O.S.Supp.2016, § 991b(A). Appellant was previously shown leniency when the trial court only revoked half of her suspended sentence. After spending time in prison for committing crimes while on probation, Appellant returned to the community and committed new crimes. A suspended sentence is a matter of grace. Hagar v. 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. Appellant has not shown Judge Norman abused his discretion. Jones, 1988 OK CR 20, I 8, 749 P.2d at 565.

DECISION

The revocation of Appellant’s suspended sentences in Muskogee County District Court Case Nos. CF-2016-439, CF-2017-126, CF-2017-127, and CF-2017-129 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. Jones v. State, 1988 OK CR 20, 18, 749 P.2d 563, 565.
2. 22 O.S.Supp.2016, § 991b(A).
3. Hagar v. State, 1999 OK CR 35, 18, 990 P.2d 894, 897.
4. Demry v. State, 1999 OK CR 31, 12, 986 P.2d 1145, 1147.
5. Jones, 1988 OK CR 20, 18, 749 P.2d at 565.
6. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019).

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 991b(A) - Revocation of Suspended Sentence
• Okla. Stat. tit. 21 § 701.8 - Possession of Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 1731 - Unlawful Possession of Drug Paraphernalia
• Okla. Stat. tit. 21 § 1732 - Larceny of Merchandise From a Retailer
• Okla. Stat. tit. 21 § 1720 - Larceny of an Automobile
• Okla. Stat. tit. 21 § 1535 - Falsely Personating Another to Create Liability
• Okla. Stat. tit. 21 § 268 - Resisting an Officer
• Okla. Stat. tit. 21 § 268A - Obstructing an Officer
• Okla. Stat. tit. 21 § 1541 - Uttering a Forged Instrument
• Okla. Stat. tit. 21 § 1956 - Identity Theft - Use of Personal Information
• Okla. Stat. tit. 22 § 18 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 18 - Mandate

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:

• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
• 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