Toni Lynn Cook v The State Of Oklahoma

RE-2019-57

Filed: Jan. 30, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Toni Lynn Cook appealed her conviction for revoking her suspended sentence. Conviction and sentence were affirmed, meaning she has to serve her original one-year sentence. Judge Hudson dissented.

Decision

The revocation of Appellant's suspended sentence in McIntosh County District Court Case No. CM-2016-369 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 sufficient evidence to prove the probation violations alleged in the State's Motion to Revoke Suspended Sentence?
• Did the Appellant provide a valid waiver of her right to a hearing within twenty days?
• Was the revocation in full excessive and an abuse of discretion by the trial court?

Findings

• evidence was sufficient to prove the probation violations alleged in the State's Motion to Revoke Suspended Sentence
• the waiver of the right to a hearing within twenty days was valid
• revocation in full was not excessive and was within the trial court's discretion

RE-2019-57

Jan. 30, 2020

Toni Lynn Cook

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

Appellant appeals from the revocation of her suspended sentence in McIntosh County District Court Case No. CM-2016-369. In this case she entered a plea of guilty on February 23, 2018, to Obstructing an Officer, in violation of 21 O.S.Supp.2015, § 540. She was convicted and sentenced to one year imprisonment, with the entire year suspended. On November 6, 2018, the State filed a Motion to Revoke Suspended Sentence alleging Appellant committed the new crimes of Assault and Battery on a Police Officer (Count 1), Assault and Battery on a Police Officer (Count 2), and Indecent Exposure (Count 3) as alleged in McIntosh County District Court Case No. CF-2018-218. On December 7, 2018, Appellant entered a plea of not guilty to the State’s motion and the case was passed twelve days to December 19, 2018. Appellant appeared with counsel on December 19, 2018, and waived her right to have the revocation hearing held within twenty days. The trial court continued the hearing to January 16, 2019.

Following a combined preliminary and revocation hearing, the Honorable Brendon Bridges, Associate District Judge, sustained the State’s motion to revoke and revoked Appellant’s suspended sentence in full. In her first proposition, Appellant argues the evidence in this case is insufficient to prove the probation violations alleged in the State’s Motion to Revoke Suspended Sentence. The State’s burden at a revocation hearing is preponderance of the evidence. Tilden v. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554, 556. A “preponderance of the evidence” means the evidence “more likely than not” established the alleged probation violations occurred. Hammon v. State, 2000 OK CR 7, ¶ 46, 999 P.2d 1082, 1094. The standard is not whether this Court agrees with Judge Bridges decision but rather whether this Court finds Judge Bridges abused his discretion when he determined a preponderance of the evidence at this hearing established Appellant committed the new crimes alleged. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565. An “abuse of discretion” is a clearly erroneous conclusion and judgment, one clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

The evidence before Judge Bridges was the testimony of two jailers and photographs of those jailers’ injuries. According to the jailers, Appellant exposed herself to her jailers. As a result, the jailers informed Appellant they were moving her to a solitary jail cell. During the move, Appellant refused to comply and physically resisted. Appellant grabbed and pushed the two officers injuring them. It is up to Judge Bridges to determine the credibility of this evidence, not this Court. McCarty v. State, 1998 OK CR 61, ¶ 61, 977 P.2d 1116, 1132-1133. Appellant fails to establish that Judge Bridges’s finding that it is more likely than not that Appellant violated her probation was an erroneous conclusion that was clearly against the logic and effect of the facts presented. Proposition I is without merit.

At Proposition II, Appellant argues her revocation should be reversed and dismissed. According to Appellant, no valid waiver of her right to a hearing within twenty days occurred which Appellant maintains is required pursuant to 22 O.S.Supp.2018, § 991b(A). Specifically, Appellant maintains the record lacks sufficient proof her waiver was knowing and voluntary. She maintains that because the record does not explicitly state such a waiver occurred, this revocation order must be vacated. Appellant waived the right to have the hearing held within twenty days, and Appellant does not allege that she ever wanted or requested a hearing within the twenty-day period. Also, Appellant does not allege that she was not informed and/or aware of the twenty-day requirement. She claims the documentation of the waiver that appears in the appeal record is inadequate. Appellant does not cite authority requiring the waiver procedures that she alleges are missing in this case. Proposition II is without merit.

Appellant’s Proposition III maintains revocation in full was excessive and that this revocation order should be modified. Appellant argues this revocation was an abuse of discretion. This claim is without merit. A suspended sentence is a matter of grace. Hagar v. State, 1999 OK CR 35, ¶ 8, 990 P.2d 894, 898; Demry v. State, 1999 OK CR 31, ¶ 12, 986 P.2d 1145, 1147. The State must only prove one violation of probation in order to revoke Appellant’s suspended sentence in full. Tilden, 2013 OK CR 10, ¶ 10, 306 P.3d at 557 (citing McQueen v. State, 1987 OK CR 162, ¶ 2, 740 P.2d 744, 745). Here the State established that, while on probation, Appellant committed three new crimes. In this case, the State filed a petition setting forth grounds for revocation and competent evidence justifying the revocation was presented to the trial court. See 22 O.S.Supp.2018, § 991b(A). The fact that Judge Bridges could have revoked less than the full amount, and chose not to, does not establish an abuse of discretion. Jones, 1988 OK CR 20, ¶ 8, 749 P.2d at 565. Proposition III is without merit. Appellant has not established the revocation order was an abuse of discretion by the trial court in this case.

DECISION

The revocation of Appellant’s suspended sentence in McIntosh County District Court Case No. CM-2016-369 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. Tilden U. State, 2013 OK CR 10, 5, 306 P.3d 554, 556.
2. Hammon U. State, 2000 OK CR 7, 9 46, 999 P.2d 1082, 1094.
3. Jones U. State, 1988 OK CR 20, 8, 749 P.2d 563, 565.
4. Neloms U. State, 2012 OK CR 7, 35, 274 P.3d 161, 170.
5. McCarty v. State, 1998 OK CR 61, 9 61, 977 P.2d 1116, 1132-1133.
6. Hagar U. State, 1999 OK CR 35, 8, 990 P.2d 894, 898.
7. Demry U. State, 1999 OK CR 31, 12, 986 P.2d 1145, 1147.
8. Tilden, 2013 OK CR 10, 10, 306 P.3d at 557 (citing McQueen v. State, 1987 OK CR 162, 2, 740 P.2d 744, 745).
9. 22 O.S.Supp.2018, § 991b(A).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 540 (2015) - Obstructing an Officer
• Okla. Stat. tit. 22 § 991b(A) (2018) - 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:

• Tilden v. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556
• Hammon v. State, 2000 OK CR 7, 9 46, 999 P.2d 1082, 1094
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
• McCarty v. State, 1998 OK CR 61, 9 61, 977 P.2d 1116, 1132-1133
• Hagar v. State, 1999 OK CR 35, If 8, 990 P.2d 894, 898
• Demry v. State, 1999 OK CR 31, 1 12, 986 P.2d 1145, 1147
• McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745