Burglary in the Second Degree

RE-2018-644

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DUSTIN ARDELL CRUCE,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** No. RE-2018-644 **NOT FOR PUBLICATION** **FILED IN COURT OF CRIMINAL APPEALS** **APR 25 2019** **JOHN D. HADDEN CLERK** **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Dustin Ardell Cruce appeals from the revocation of his suspended sentence in Okfuskee County District Court Case No. CF-2016-143, overseen by the Honorable Lawrence W. Parish. On February 22, 2017, Appellant pleaded guilty to multiple charges, including Assault With a Dangerous Weapon (Counts 1 and 2), Burglary in the Second Degree (Count 3), Knowingly Concealing Stolen Property (Count 4), and Possession of a Controlled Dangerous Substance (Count 5). Appellant was sentenced to various terms of imprisonment, all suspended and ordered to run concurrently. On October 31, 2017, the State filed a Motion to Revoke Suspended Sentence, citing Appellant's failure to pay reimbursement fees and an alleged new crime of Domestic Abuse—Assault and Battery Against a Pregnant Woman (Case No. CM-2017-126). However, during a revocation hearing on May 2, 2018, the State abandoned its claim regarding the new crime as part of a plea agreement. Consequently, the only remaining basis for revocation was Appellant's failure to pay the ordered reimbursement fees. The trial court ultimately revoked five years of Appellant's suspended sentence. Appellant asserts that the court abused its discretion by not allowing him to remain in the community, claiming his overall performance during probation warranted a more lenient outcome. **Legal Standards** In revocation hearings, the State must only prove violations by a preponderance of the evidence (Tilden v. State, 2013 OK CR 10, ¶ 10). Appellant admitted to violating probation conditions due to non-payment of fees, failing to demonstrate attempts to satisfy his financial obligations. **Conclusion** The trial court exercised discretion by revoking part of Appellant's suspended sentence, and given the circumstances, including admitted violations, the court's decision aligns with established legal standards. The revocation is hereby **AFFIRMED**. **OPINION BY:** ROWLAND, J. **LEWIS, P.J.:** Concur **KUEHN, V.P.J.:** Concur in Results **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur The mandate will issue upon the filing of this decision in accordance with Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals. **[Download PDF Version](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-22_1734709407.pdf)**

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F-2015-909

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In OCCA case No. F-2015-909, Ricky Nolan Ennis appealed his conviction for multiple offenses. In a published decision, the court decided to affirm the convictions but vacated the restitution order and remanded the case for a proper determination of the victim's loss. Ricky Nolan Ennis pled guilty to burglary and domestic assault and battery, with sentencing delayed so he could complete a rehabilitation program. After he completed the program, the court agreed to delay his sentencing for five years. However, later on, the State alleged he violated his probation by committing new crimes. He was tried by jury for these new charges and found not guilty of kidnapping but guilty of assault and battery with a dangerous weapon, assault and battery in the presence of a minor, and threatening violence. The jury recommended various sentences, which the judge followed along with increasing his sentences from the earlier cases due to probation violations. Ennis raised several arguments in his appeal, questioning whether he was properly advised about his right to appeal, claiming he did not plead to the new charges, and arguing that the trial judge considered irrelevant information and that the evidence against him was unfairly prejudicial. Ennis also claimed his attorney did not represent him effectively, that the prosecutor misbehaved, and that the sentences he received were excessive. After a thorough review, the court found Ennis's complaints about not being advised on the right to appeal and other issues did not warrant relief. They noted that he did not raise many of these issues in a timely manner and that most of his claims did not show he was denied a fair trial. However, the court did find an error in how restitution was determined, as there was not enough evidence to justify the amount ordered. Ultimately, the court’s decision affirmed Ennis’s convictions but also required the case to return to the lower court to correctly handle the victim's restitution claim.

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C-2017-104

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In OCCA case No. C-2017-104, McLaughlin appealed his conviction for burglary and unlawful use of a police scanner. In an unpublished decision, the court decided to affirm the sentences for burglary and unlawful use of a police scanner but reversed the sentence for possession of burglary tools. One judge dissented. McLaughlin had pleaded no contest to charges of burglary in the second degree and unlawful use of a police scanner in a district court. At sentencing, he received life imprisonment for each of those counts, along with a fine for the second count. However, there was an additional charge for possession of burglary tools that had been dismissed earlier, but the court sentenced him for that count as well. McLaughlin wanted to withdraw his no contest plea later, but his request was denied. He filed for an appeal to challenge that denial, which was allowed to proceed. He raised three main arguments: one regarding the court's authority to sentence him for the dismissed charge, another about failing to bring him to trial on time, and the last about the severity of his life sentences being excessive. The court found that it was wrong for the district court to impose a sentence on the dismissed possession charge, and so it directed that judgment to be vacated. However, it ruled that McLaughlin had missed his chance to challenge the timing of his trial. The court also determined that his life sentences were not shockingly excessive, thus they would not be disturbed. In summary, McLaughlin's appeal was granted in part and denied in part: the decision on the burglary and police scanner charges stood, but the judgment on the possession of burglary tools was reversed, and the case was sent back to the lower court for corrections.

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RE-2015-206

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In OCCA case No. RE-2015-206, Akers appealed his conviction for Burglary in the Second Degree, Knowingly Concealing Stolen Property, Conspiracy to Commit Burglary II, and Possession of a Controlled Dangerous Substance (Methamphetamine). In an unpublished decision, the court decided to reverse the revocation order against him. One judge dissented. In this case, Akers had entered pleas of no contest to several charges after a plea agreement. He was sentenced to serve time in prison, but part of his sentence was suspended, meaning he wouldn’t have to serve it right away if he followed certain rules. However, a few months later, a judge revoked part of his suspended sentence because of a violation. Akers argued that the court did not follow the rules properly during the revocation process. Specifically, he claimed that the court didn’t hold a required hearing within 20 days after he entered a plea of not guilty to the motion for revocation. According to the law, if this time frame is not followed, the court loses the authority to revoke the suspended sentence. The record showed that the state filed a motion to revoke Akers' suspended sentence, and although he entered a plea of not guilty, he did not receive a hearing within the 20-day period. Akers' lawyer pointed out this issue during the hearing, claiming the court should not have moved forward with the revocation as it did not meet the required timeframe. The dissenting judge had a different opinion, but the majority agreed that Akers was right. Because the required hearing was not held on time, they decided to reverse the revocation order and told the lower court to dismiss the state’s motion, meaning Akers’ rights were upheld, and he would not face the consequences of the revocation. Thus, the decision was made to give Akers another chance by reversing the revocation.

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RE 2008-0961

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In OCCA case No. RE 2008-0961, Adrian Smith appealed his conviction for robbery and burglary. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences but also ordered that the judgment be corrected to show that he had nine years remaining instead of ten years. One judge dissented. Adrian Smith had pleaded guilty to several crimes, including robbery with a weapon. He got a sentence of ten years for each crime, but all of them were set to run at the same time, which means he would only serve the longest sentence. If he completed a substance abuse program, he would not have to serve the sentences after the first year. After being released, the state asked to take back his suspended sentence because they believed he had not followed the rules. After a court hearing, the judge decided to revoke the suspended sentences completely. Smith then appealed, saying the judge made mistakes. First, Smith claimed the judge was wrong to revoke his sentence for ten years. However, the state agreed that it should state nine years instead. Second, Smith argued that he did not get a fair process because the judge did not write down why his sentence was revoked. The court found that he was given enough information about why this decision was made, so he was not denied due process. Lastly, Smith argued that revoking his full sentences was too much. The court concluded that the judge had the right to make this decision and found no abuse of discretion. In the end, the appeal confirmed that the sentences would stay revoked but corrected the record to show the appropriate time remaining.

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F-2004-110

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In OCCA Case No. F-2004-110, Kelly Dallas Evans appealed his conviction for Burglary in the Second Degree and Possession of Burglary Tools. In a published decision, the court decided to affirm his convictions and sentences, although they modified the fine for the possession of burglary tools. One justice dissented. Evans was found guilty by a jury of burglary after they considered his past felony convictions. The jury recommended a life sentence for the burglary and a one-year jail sentence for having burglary tools, along with a fine. Evans argued that the prosecutor made unfair comments about his silence during the trial, that his life sentence was too harsh for a property crime, and that the fine for the misdemeanor was too high. The court examined Evans' complaints. They noted that his claims about the prosecutor’s comments were not raised during the trial, meaning they were looked at carefully for any major mistakes. They found that the prosecutor's remarks did not directly point to Evans not testifying but were more about the weak defense he presented. On the issue of his life sentence, the court recognized that it seemed severe, but they upheld it based on Evans' criminal history, saying it did not shock their sense of fairness. Regarding the fine for possession of burglary tools, the court agreed it was too high and decreased it to the correct maximum amount. In summary, the court confirmed Evans' long prison term for the burglary but changed the fine for the other charge.

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F 2004-1127

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In OCCA case No. F 2004-1127, Charles Clarence Tiger appealed his conviction for multiple charges, including conspiracy to commit a felony and several burglaries. In an unpublished decision, the court decided to reverse and dismiss some of the charges while affirming others. One judge dissented on the reversal of the conspiracy conviction. Tiger faced a jury trial where he was found guilty of numerous crimes, including conspiracy to commit burglary, and was sentenced to serve a long time in prison. He later appealed, arguing several points, including that he didn't get a fair and speedy trial, that his lawyer didn't help him properly, and that he was punished too harshly for his crimes. The court reviewed these claims carefully. They agreed that Tiger's right to a speedy trial was not violated and that his lawyer did provide effective legal help. However, they found that two of the charges against him conflicted with each other. They decided that being punished for both burglary and robbery from the same incident was not right, so they reversed the burglary charge related to that. Additionally, the court felt there wasn't enough evidence to support Tiger's conspiracy charge, so that one was also reversed. While some of Tiger's arguments were accepted, others were rejected. The judges agreed that the remaining charges that stayed upheld were fair and within legal limits, meaning he would still have to serve his time for them. In summary, the court decided to dismiss two of the charges and keep the others, showing that while some of Tiger's claims were valid, many were not. One judge disagreed with the court's choice to dismiss the conspiracy charge, believing there was enough proof to uphold it.

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