Excessive Revocation

RE-2019-57

  • Post author:
  • Post category:RE

In the Court of Criminal Appeals of the State of Oklahoma, Toni Lynn Cook appeals the revocation of her suspended sentence from the McIntosh County District Court. Cook had originally pled guilty to the charge of Obstructing an Officer. Following her guilty plea, the State filed a Motion to Revoke her suspended sentence, claiming she committed new crimes while on probation, which included multiple counts of Assault and Battery on a Police Officer and Indecent Exposure. The revocation hearing saw evidence presented, including testimonies from jailers detailing that Cook had exposed herself and physically resisted their attempts to move her to a solitary cell, leading to injuries to the officers involved. The trial court found that the State met its burden to show by a preponderance of the evidence that Cook had violated her probation. Cook raised several propositions on appeal: 1. **Insufficient Evidence**: Cook argued that the evidence presented was insufficient to prove the alleged probation violations. However, the court found that the evidence sufficient and credible, affirming that the trial judge did not abuse his discretion. 2. **Waiver of Hearing Within Twenty Days**: Cook contended that her waiver of the right to a hearing within twenty days was not valid. The court ruled that Cook had waived this right knowingly, as she had not requested an early hearing and did not provide evidence that she was unaware of this right. 3. **Excessiveness of Revocation**: Cook argued the revocation was excessive. The court noted that revocation is a matter of grace, and since Cook committed multiple new offenses while on probation, the trial judge's decision to revoke her sentence in full was not an abuse of discretion. In conclusion, the Court of Criminal Appeals affirmed the trial court’s decision to revoke Cook's suspended sentence, finding no merit in her claims. The mandate was ordered to be issued upon filing the decision.

Continue ReadingRE-2019-57

RE-2018-1039

  • Post author:
  • Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **FRANK REVILLA PAIZ, JR.,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. --- **Case No. RE-2018-1039** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 12 2019** **SUMMARY OPINION** **ROWLAND, JUDGE:** On January 4, 2017, Appellant Frank Revilla Paiz, Jr., represented by counsel, entered guilty pleas to multiple charges including Possession of CDS - Methamphetamine (Count 2), Unlawful Possession of Drug Paraphernalia (Count 4), Driving Without a Driver's License (Count 5), Failure to Maintain Insurance or Security (Count 6), and Failure to Pay Taxes Due to the State (Count 7) in Woodward County Case No. CF-2016-114. He received an eight-year sentence for Count 2 and a one-year sentence for Count 4, with all but the first year suspended, subject to probation conditions. Sentences were concurrent. On the same day, Paiz pleaded guilty in Woodward County Case No. CF-2016-117 to Possession of Controlled Dangerous Substance - Methamphetamine (Count 1) and Unlawful Possession of Drug Paraphernalia (Count 2), receiving similar sentences. On June 2, 2017, the State filed an Application to Revoke Paiz's suspended sentences in Cases CF-2016-114 and CF-2016-117, citing new charges for Possession of Controlled Dangerous Substance in Case No. CF-2017-142 and failure to pay court costs. Paiz pled guilty to the new offense, receiving a suspended sentence of ten years, contingent on completing a drug treatment program. The State filed another Application to Revoke on August 14, 2018, due to new charges of Carrying Weapons and violations of probation. Following a revocation hearing on September 28, 2018, Paiz stipulated to the allegations, leading to the revocation of approximately 2,495 days of suspended sentences by the District Court of Woodward County. Paiz appeals, arguing the revocation was excessive and constitutes an abuse of discretion. He cites that simple possession became a misdemeanor effective July 1, 2017, and criticizes the court for not exploring alternate sanctions. The scope of review in a revocation appeal focuses on the validity of the revocation order. This Court has held that even a single violation justifies revocation. Paiz admitted to multiple violations and new criminal activity, justifying the District Court's actions. **DECISION**: The revocation of Paiz's suspended sentences in Woodward County Case Nos. CF-2016-114, CF-2016-117, and CF-2017-142 is **AFFIRMED**. **Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon delivery and filing of this decision.** **AN APPEAL FROM THE DISTRICT COURT OF WOODWARD COUNTY, THE HONORABLE DON A. WORK, ASSOCIATE DISTRICT JUDGE** --- **APPEARANCES AT TRIAL:** **CURTIS BUSSETT, ATTORNEY AT LAW** P.O. BOX 1494 CLINTON, OK 73601 **COUNSEL FOR DEFENDANT** **APPEARANCES ON APPEAL:** **CHAD JOHNSON** P.O. BOX 926 NORMAN, OK 73070 **COUNSEL FOR APPELLANT** **SUSAN K. MEINDERS** **MIKE HUNTER** ASST. DISTRICT ATTORNEY WOODWARD COUNTY 1600 MAIN STREET WOODWARD, OK 73801 **COUNSEL FOR THE STATE** **CAROLINE E.J. HUNT** ASST. ATTORNEY GENERAL 313 N.E. 21 ST STREET OKLAHOMA CITY, OK 73105 **COUNSEL FOR APPELLEE** **OPINION BY: ROWLAND, J.:** **LEWIS, P.J.: Concur** **KUEHN, V.P.J.: Concur** **LUMPKIN, J.: Concur** **HUDSON, J.: Concur** [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-1039_1734355896.pdf)

Continue ReadingRE-2018-1039

RE-2017-1287

  • Post author:
  • Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Darmaecia Brendette Hill, Appellant,** **vs.** **The State of Oklahoma, Appellee.** **No. RE-2017-1287** **Summary Opinion** **Filed June 6, 2019** **Judge Lewis, Presiding** **ORDER** This appeal arises from the revocation of three and one-half years of suspended sentences in Case Nos. CF-2014-506 and CF-2015-773 in the District Court of Payne County, presided over by Honorable Stephen R. Kistler. **BACKGROUND** In Case No. CF-2014-506, Appellant was convicted of Child Neglect (felony) and Unlawful Possession of Marijuana (misdemeanor), receiving a seven-year sentence with all but the first 120 days suspended. Case No. CF-2015-773 involved a conviction for Unlawful Possession of Controlled Dangerous Substance (Methamphetamine) (felony), also sentenced to seven years with similar suspension conditions. Multiple motions to revoke were filed due to alleged probation violations, including positive drug tests and failure to comply with GPS monitoring. The final revocation hearing on July 25, 2017, resulted in the court revoking three and one-half years of Appellant's suspended sentences. **PROPOSITIONS OF ERROR** 1. **Jurisdictional Issue**: Appellant argues that the District Court unlawfully extended her original sentence by imposing a twelve-month post-confinement supervision after the suspended sentence was revoked. 2. **Excessive Revocation**: Appellant contends that the revocation of three and one-half years of her suspended sentences is excessive considering the circumstances of her case. **ANALYSIS** **Proposition I**: The court finds Appellant’s argument unpersuasive due to the twelve-month post-confinement supervision being within the balance of her original sentences. The initial seven-year sentence, with revocations, allows for this additional supervision under Title 22, § 991a. **Proposition II**: The court concludes that Judge Kistler acted within his discretion in revoking three and one-half years of Appellant's suspended sentences based on the repeated violations of her probation terms. The evidence presented supported the court’s decision as Appellant was granted multiple opportunities for compliance. **DECISION** The order of the District Court of Payne County revoking three and one-half years of Appellant's suspended sentences in Case Nos. CF-2014-506 and CF-2015-773 is ***AFFIRMED.*** **MANDATE**: Pursuant to Rule 3.15, the mandate is ordered issued upon the filing of this decision. **APPEARANCES** - **For Appellant**: Sarah J. Kennedy (Appellate Defense Counsel), Danny Joseph (Appellate Defense Counsel) - **For Appellee**: Karen Dixon (Attorney General of OK), Mike Hunter (Assistant District Attorney), Cierra Saltan (Assistant Attorney General) **OPINION BY**: LEWIS, P.J. **KUEHN, V.P.J.**: Concur **LUMPKIN, J.**: Concur **HUDSON, J.**: Concur **ROWLAND, J.**: Concur **Download PDF**: [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2017-1287_1734707641.pdf)

Continue ReadingRE-2017-1287

RE-2018-155

  • Post author:
  • Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **VESTER VON DOWNUM,** **Appellant,** **v.** **STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-155** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MAY 23, 2019** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** On June 15, 2015, Appellant Vester Von Downum, represented by counsel, was convicted of Planning/Conspiring/Endeavoring to Perform an Act of Violence in Muskogee County, Case No. CF-2014-656. He was sentenced to ten (10) years, with all but the first two (2) years suspended, subject to rules and conditions of probation. On December 6, 2017, the State filed an Application to Revoke Downum's suspended sentence, alleging he violated the terms of probation by violating a protective order issued in PO-2014-218. At the hearing on February 7, 2018, the District Court of Muskogee County, presided by the Honorable Norman D. Thygesen, revoked the remainder of Downum's suspended sentence. Downum now appeals, presenting the following propositions of error: 1. The State failed to prove by a preponderance of the evidence that Mr. Downum violated the terms of his probation by committing the new crime of violating a protective order; 2. The order of revocation is excessive based on the circumstances; 3. There exists a clerical error in the order revoking the suspended sentence that should be corrected by an order nunc pro tunc. **DECISION:** The revocation of Downum's suspended sentence is AFFIRMED. The scope of review in revocation appeals is limited to the validity of the revocation order. We examine the factual determination and consider whether the court abused its discretion. The trial court's findings will not be disturbed on appeal if there is evidence reasonably supporting them. Downum alleges the State did not prove he violated the protective order. In probation revocations, the State must prove violations by a preponderance of the evidence, and conflicting testimony was presented at the revocation hearing. The victim, T.H., claimed Downum contacted her on Facebook shortly after his release, which she found threatening due to their history. Downum testified the contact was accidental. Given the conflicting evidence, the court found sufficient grounds to support the violation, and we find no abuse of discretion in the decision to revoke Downum's sentence. As to Downum's claim of excessive punishment, we note that violation of even one condition of probation justifies full revocation, especially in this case where the violation occurred less than two weeks after his release. Regarding the clerical error in the Judgment filed February 9, 2018, it correctly reflects the need for a nunc pro tunc order to clarify that Downum was found guilty after a jury trial and not via a guilty plea. **CONCLUSION:** The order of the District Court of Muskogee County revoking Downum's suspended sentence in Case No. CF-2014-656 is AFFIRMED. The matter is REMANDED for entry of an order nunc pro tunc to correct the clerical error. **OPINION BY: LEWIS, P.J.:** **KUEHN, V.P.J.:** Concur **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur **[Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-155_1734703626.pdf)**

Continue ReadingRE-2018-155

RE-2009-239

  • Post author:
  • Post category:RE

In OCCA case No. RE-2009-239, the appellant appealed his conviction for uttering a forged instrument. In an unpublished decision, the court decided to modify the order of revocation to allow for concurrent sentences instead of consecutive sentences. One judge dissented regarding the finding of excessiveness in the revocation order. In the case, the appellant, who was originally given the benefit of a deferred sentence and then suspended sentences, was accused of violating his probation by not reporting to his probation officer. The sentencing judge ultimately revoked his suspended sentences and imposed a total of eight years in prison, which he argued was excessive. The court reviewed the record and statements made by the judge during the revocation hearing. They determined that although the judge had the power to revoke less than the full suspension, the circumstances of the case warranted a modification to allow the sentences to be served concurrently, rather than consecutively as originally ordered. Additionally, the appellant contended that a second assessment for victim compensation was unlawful, as it exceeded the statutory limit. However, the court noted that the compensation assessments were appropriate and not void, concluding that this issue did not affect the validity of the revocation order itself. The final decision directed the district court to change the revocation order to reflect concurrent serving of sentences while affirming the other aspects of the revocation.

Continue ReadingRE-2009-239

RE 2009-0080

  • Post author:
  • Post category:RE

In OCCA case No. RE 2009-0080, Zachary Glenn Hayes appealed his conviction for Rape by Instrumentation. In an unpublished decision, the court decided to affirm the revocation of his suspended sentence but vacated the order requiring him to pay jail costs. One member of the court dissented.

Continue ReadingRE 2009-0080

RE 2008-0961

  • Post author:
  • Post category:RE

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.

Continue ReadingRE 2008-0961

RE 2007-0517

  • Post author:
  • Post category:RE

In OCCA case No. RE 2007-0517, the appellant appealed his conviction for possession of a controlled dangerous substance with intent to distribute (cocaine). In a published decision, the court decided to affirm the revocation of the appellant's suspended sentences. The court also decided that the order must be corrected to reflect that one of the sentences was for five years, not ten years. One judge dissented in part, agreeing with the overall decision but raised concerns about the details of the sentencing.

Continue ReadingRE 2007-0517

RE-2004-1033

  • Post author:
  • Post category:RE

In OCCA case No. RE-2004-1033, Wren appealed her conviction for possession of a controlled dangerous substance (methamphetamine). In a published decision, the court decided to affirm the revocation of her suspended sentence but modified the length of her imprisonment. One judge dissented. Wren had originally been sentenced to four years in prison, which was suspended based on her agreeing to probation terms after entering a nolo contendere plea. She did not follow the rules of her probation on several occasions, which led to her first violation and a thirty-day jail sentence. Eventually, the state filed a second motion to revoke her suspended sentence after she failed drug tests and did not pay court costs. Even after a treatment program, Wren continued to use methamphetamine. When the court determined that she had broken her probation rules again, it revoked her suspended sentence entirely. However, Wren argued that her full sentence shouldn't be four years since part of it had already been executed with her previous thirty-day incarceration. The court agreed that the final sentence was actually longer than it should have been and modified the length to reflect the time she had already served. In the end, the court affirmed the revocation of her suspended sentence but adjusted the total imprisonment time to account for her earlier time served, confirming that she needs to serve three years and three hundred thirty-five days of her sentence.

Continue ReadingRE-2004-1033

RE 2003-0857

  • Post author:
  • Post category:RE

In OCCA case No. RE 2003-0857, #Montgomery appealed his conviction for #Burglary, Second Degree. In an unpublished decision, the court decided #to affirm the revocation of his suspended sentence, but modified the length of the revocation to three years. #One judge dissented. Montgomery had initially pled guilty to burglary and was given a chance to stay out of prison under certain rules for four years. However, he broke the rules multiple times. The state asked the court to impose his sentence because he did not keep a job, did not pay the money he owed, and committed new crimes like driving without a license. The judge revoked a large portion of his sentence for these reasons. On appeal, Montgomery argued that the judge had no right to take away three and a half years of his sentence and that the punishment was too harsh. The court found that while the judge made a mistake in calculating the time, the decision to revoke the sentence was not seen as overly harsh, so they changed the revocation from three and a half years to three years instead.

Continue ReadingRE 2003-0857

F-2002-492

  • Post author:
  • Post category:F

In OCCA case No. F-2002-492, Scott Lee Fox appealed his conviction for multiple crimes, including Assault and Battery with Intent to Kill and Injury to a Minor Child. In a published decision, the court decided to affirm most of the convictions and sentences, but reversed and dismissed the conviction for Injury to a Minor Child. One judge dissented.

Continue ReadingF-2002-492