Anthony Curtis Creek v The State Of Oklahoma

RE-2018-932

Filed: Jan. 23, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Anthony Curtis Creek appealed his conviction for possession of a controlled dangerous substance and unlawful possession of drug paraphernalia. His convictions were for a total of 2 years, with 90 days in jail for the first charge and one year suspended for the second, running one after the other. Judge Hladik found that Creek had violated the terms of his suspended sentence, so he revoked six months of it. Creek had some disagreements with how the revocation was handled, but the court found no mistakes in the process. After reviewing the case, the court decided to keep the revocation of six months of Creek's suspended sentence. Judge Hudson dissented.

Decision

THE REVOCATION OF APPELLANT'S SUSPENDED SENTENCE IN GARFIELD COUNTY DISTRICT COURT CASE NO. CF-2013-393 IS AFFIRMED. PURSUANT TO RULE 3.15, RULES OF THE OKLAHOMA COURT OF CRIMINAL APPEALS, TITLE 22, CH.18, APP. (2020), THE MANDATE IS ORDERED ISSUED UPON THE FILING OF THIS DECISION.

Issues

• Was there an abuse of discretion by the trial court in utilizing a strict liability standard for sentencing, resulting in a cruel and excessive sentence?
• Did prosecutorial misconduct deprive Anthony Creek of the right to a fundamentally fair proceeding?
• Was there plain error when the trial court determined that the State provided the proper standard of proof?
• Was there a violation of equal protection under the Fourteenth Amendment and the Oklahoma Constitution?
• Did the accumulation of error deprive Appellant of due process of law?

Findings

• the court did not err in utilizing a strict liability standard for sentencing
• prosecutorial misconduct did not deprive Anthony Creek of the right to a fundamentally fair proceeding
• plain error did not occur regarding the standard of proof
• Mr. Creek was not denied equal protection under the Fourteenth Amendment or the Oklahoma Constitution
• the accumulation of error did not deprive Appellant of due process of law

RE-2018-932

Jan. 23, 2020

Anthony Curtis Creek

Appellant

v

The State Of Oklahoma

Appellee

ROWLAND, JUDGE: Anthony Curtis Creek, Appellant, entered a plea of guilty on March 16, 2015, in Garfield County District Court Case No. CF-2013-393, to the amended charge of Count 1 – Possession of a Controlled Dangerous Substance, a misdemeanor, and Count 2 – Unlawful Possession of Drug Paraphernalia, a misdemeanor. He was sentenced to one year with all suspended except 90 days in the County Jail on Count 1 and one year suspended on Count 2. The sentences were ordered to run consecutive. Appellant was also fined $500.00. 1

The State filed an application to revoke Appellant’s suspended sentence on Count 2 on January 20, 2017, alleging Appellant (1) possessed or consumed alcohol, and (2) committed the offenses of DUI-A, a misdemeanor, and Defective Equipment, a misdemeanor, as alleged in Oklahoma County, Case No. CM-2016-2776. Following a revocation hearing on June 2, 2017, before the Honorable Dennis Hladik, District Judge, six months of Appellant’s suspended sentence was revoked. Following Appellant’s stipulation to the State’s first allegation and hearing testimony as to the remaining allegations, Judge Hladik found Appellant possessed or consumed alcohol and that he committed the two new offenses as alleged. Appellant appeals the revocation of his suspended sentence.

On appeal, Appellant raises the following propositions of error:
1. The trial court abused its discretion in utilizing a strict liability standard for sentencing which resulted in a cruel and excessive sentence.
2. Prosecutorial misconduct deprived Anthony Creek of the right to a fundamentally fair proceeding.
3. Plain error occurred when the trial court determined that the State provided the proper standard of proof.
4. Mr. Creek was denied equal protection under the Fourteenth Amendment to the United States Constitution as well as Article II, §§ 7, 9, and 20 of the Oklahoma Constitution. 2
5. The accumulation of error in this case deprived Appellant of due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article II, § 7 of the Oklahoma Constitution.

Finding no error, we affirm the order of the District Court revoking six months of Appellant’s one year suspended sentence.

1. 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. Tilden U. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557. “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 v. State, 1989 OK CR 65, I 5, 780 P.2d 1181, 1183. Appellant stipulated to the State’s first allegation. Unrefuted testimony from the two officers supported the State’s remaining two allegations. After the State recommended Appellant’s suspended sentence be revoked in full, Judge Hladik revoked only six months of Appellant’s suspended sentence. Appellant has not shown an abuse of discretion.

2. Counsel for Appellant states that this argument “would be more appropriate for a post-conviction matter.” We agree. The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020). Further, the record does not support Appellant’s contentions that the prosecutors “allowed or encouraged the police officers to be evasive” or that the “prosecutors intentionally mislead the trial court about the nature of evidence.” Appellant has not shown he was deprived of a fair revocation hearing. This proposition of error has no merit.

3. We find no error. Violations of the conditions of a suspended sentence need only be shown by a preponderance of the evidence. Tilden, 2013 OK CR 10, “I 5, 306 P.3d at 556. Preponderance of the evidence has been defined to mean “simply the greater weight of evidence” – “that which, to the mind of the trier of fact or the seeker of the truth, seems most convincing and more probably true”. Henderson v. State, 1977 OK CR 238, I 4, 568 P.2d 297, 298. In this case a 4 preponderance of the evidence supports the trial judge’s decision to revoke Appellant’s suspended sentence. Appellant stipulated to the State’s first allegation. Revocation is proper even if only one violation is shown by a preponderance of the evidence. McQueen V. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745. Appellant has not shown an abuse of discretion.

4. Appellant’s argument appears to be that he was denied equal protection because the trial judge would not allow the admission of a document from the Department of Public Safety, the revocation of six months of a one-year suspended sentence was excessive, and the prosecutors were incompetent. The trial court’s ruling that the document was inadmissible was not an abuse of discretion nor did it deny Appellant a fundamentally fair revocation proceeding. See Degraffenreid v. State, 1979 OK CR 88, I 14, 599 P.2d 1107, 1110. The other two contentions were raised in propositions 1 and 2 and are without merit. Appellant has not shown that he was denied equal protection of the law.

5. In the absence of individual error, there can be no accumulation of error. Appellant has not shown error or a cumulative effect of errors. See Matthews U. State, 2002 OK CR 16, I 57, 45 P.3d 907, 924.

DECISION
The revocation of Appellant’s suspended sentence in Garfield County District Court Case No. CF-2013-393 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 22 § 18.
2. Walker v. State, 1989 OK CR 65, I 5, 780 P.2d 1181, 1183.
3. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020).
4. Tilden U. State, 2013 OK CR 10, I 5, 306 P.3d at 556.
5. Henderson v. State, 1977 OK CR 238, I 4, 568 P.2d 297, 298.
6. McQueen V. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745.
7. Degraffenreid v. State, 1979 OK CR 88, I 14, 599 P.2d 1107, 1110.
8. Matthews U. State, 2002 OK CR 16, I 57, 45 P.3d 907, 924.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentences for possession of controlled dangerous substances
• Okla. Stat. tit. 47 § 11-801(B)(1) (2011) - Definitions regarding DUI
• Okla. Stat. tit. 22 § 1.2(D)(4) (2020) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 18 (2020) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 51 (2011) - Factors for determining whether to impose a sentence
• Okla. Stat. tit. 21 § 651 (2011) - Sentencing for criminal offenses
• Okla. Stat. tit. 22 § 982 (2020) - Appeal from a revocation of suspended sentence

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.