Probation Violation

RE-2019-155

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **MICHELLE MARIE MESPLAY,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2019-155** **FILED** IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA FEB 13 2020 **JOHN D. HADDEN** CLERK --- **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant Michelle Marie Mesplay appeals from the revocation of her suspended sentences in Ottawa County District Court Case No. CF-2015-134. On October 2, 2015, Appellant entered a plea of no contest to Child Neglect under 21 O.S.Supp.2014, § 843.5(C). The trial court accepted her plea, withheld a finding of guilt, and delayed proceedings for ten years. On December 23, 2016, the State filed an Application to Accelerate Deferred Judgment, to which Appellant stipulated. The court then accelerated her deferred sentence to a conviction, sentencing her to ten years imprisonment with all ten years suspended. On May 3, 2018, the State moved to revoke the suspended sentence, citing failures to pay supervision fees and court costs, continued methamphetamine use, repeated failures to report, and unknown whereabouts. Appellant stipulated to the motion, and the Honorable Robert Haney revoked seven and a half years of her remaining ten-year suspended sentence. Appellant contends this revocation was excessive and claims an abuse of discretion regarding the length of the revocation. The court's decision to revoke is grounded in the understanding that a suspended sentence is a matter of grace (Demry v. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147). The State must demonstrate only one violation of probation to revoke a suspended sentence in full (Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557). In this case, Appellant’s stipulation to violating the terms of her suspended sentence validates the trial court’s revocation decision. The trial court’s discretion in revocations remains crucial, and disturbances to this discretion are reserved for clear abuse (Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565). Evidence presented to justify the revocation aligned with statutory requirements (22 O.S.Supp.2018, § 991b(A)), and Appellant has not substantiated any claim of abuse of discretion. **DECISION** The revocation of Appellant's suspended sentences in Ottawa County District Court Case No. CF-2015-134 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), MANDATE is ORDERED issued upon filing of this decision. **APPEARANCES:** **ANDREW MELOY** – Counsel for Defendant **MARK HOOVER** – Counsel for Appellant **ROGER HUGHES**, **MIKE HUNTER** – Counsel for Appellee **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR --- For the complete opinion in PDF format, [click here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2019-155_1734334834-1.pdf).

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F-2018-900

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ANGEL MUNOZ,** **Appellant,** **-VS-** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-900** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **JAN - 9 2020** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** Appellant, Angel Munoz, appeals from the acceleration of his deferred judgment and sentencing in Case No. CF-2016-701 in the District Court of Oklahoma County, by the Honorable Glenn M. Jones, District Judge. On March 7, 2018, Appellant entered a plea of guilty to Count 1: Assault and Battery With a Dangerous Weapon, with sentencing deferred for a period of five years under probation conditions until March 6, 2023. On June 26, 2018, the State filed an application to accelerate Appellant's deferred judgment and sentencing, alleging he violated probation by committing the new crime of Possession of a Firearm after a prior felony conviction, as charged in Oklahoma County District Court Case No. CF-2018-2625. An amended application was filed on August 21, 2018. At the hearing on this application, the State called Appellant's probation officer, Tammera Saavedra. During a home visit on April 13, 2018, Officer Saavedra found a nine-millimeter semiautomatic pistol and ammunition in plain view in a garage where Appellant claimed to be staying. Additionally, personal items belonging to Appellant were found near the firearm, leading to his arrest for possessing the firearm. Appellant's brother-in-law, Arturo Plascencia, testified that Appellant did not live in the garage, stating that he had never stayed there. Appellant corroborated this, but both testimonies were contradicted by evidence showing Appellant's possession and control of the area where the gun was found. After hearing the evidence, Judge Jones found that Appellant violated his probation. Consequently, he accepted the State's recommendation and sentenced Appellant to a term of ten years. Appellant raises two propositions of error on appeal: 1. **Proposition I**: The trial court abused its discretion by accelerating Appellant's sentence when the State failed to provide sufficient competent evidence of the alleged new offense. 2. **Proposition II**: The acceleration judgment should reflect Appellant's conviction for Assault and Battery With a Dangerous Weapon, rather than Assault and Battery With a Deadly Weapon. **ANALYSIS** In **Proposition I**, Appellant argues that the evidence was insufficient to establish his knowledge of the firearm's presence. The standard for reviewing such claims requires that the court finds whether a rational trier of fact could have concluded the essential elements of the probation violation were met by a preponderance of the evidence. Evidence presented indicated Appellant's admission to living in the garage at the time the firearm was discovered. Testimony from Officer Saavedra and physical evidence reinforced the conclusion that Appellant had dominion and control over the area where the firearm was located. Conflicting testimonies regarding Appellant's residence and possession were matters for the court to evaluate. Thus, Appellant failed to substantiate that Judge Jones acted irrationally in his ruling. In **Proposition II**, Appellant argues for a correction of the accelerating judgment to accurately reflect his offense. The State agrees that this matter warrants attention. Therefore, it should be remanded to the District Court for the necessary correction. **DECISION** The order of the District Court of Oklahoma County accelerating Appellant's deferred judgment and sentencing in Case No. CF-2016-701 is AFFIRMED. However, the case is REMANDED to the District Court for a correction in accordance with Appellant's request. 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. **APPEARANCES** **For the Appellant:** Kenneth C. Watson, Nancy Walker-Johnson Attorney at Law 119 N. Robinson, Suite 640 Oklahoma City, OK 73102 **For the State:** Tiffany Noble, Mike Hunter, Diane L. Slayton Assistant District Attorneys 505 County Office Building Oklahoma City, OK 73102 **OPINION BY:** LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-900_1735119586.pdf)

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F-2018-1087

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This document is a summary opinion from the Court of Criminal Appeals of the State of Oklahoma, addressing the appeal of Spencer Joe Cuccaro regarding his termination from the Kay County Drug Court and subsequent sentencing. ### Key Points: 1. **Case Background**: - Appellant Spencer Joe Cuccaro was placed in the Kay County Drug Court program on June 22, 2017, following a plea agreement that stipulated the conditions of his sentencing based on his performance in the program. - Cuccaro was involved in multiple cases (CF-2016-561, CF-2011-74, CF-2008-353) linked to drug offenses and was under specific probationary requirements. 2. **Allegations Against Cuccaro**: - The State filed a petition to remove Cuccaro from Drug Court, citing new criminal charges (including trafficking in illegal drugs), non-compliance with counseling requirements, and outstanding fees. - Evidence presented included testimonies from law enforcement regarding drug possession during a traffic stop and at the jail. 3. **Termination Hearing**: - At the termination hearing, evidence presented indicated that Cuccaro had violated the terms of his drug court agreement by committing new offenses and failing to meet his counseling and payment obligations. - The trial judge, David R. Bandy, found sufficient evidence to terminate Cuccaro from the Drug Court program. 4. **Appeal Propositions**: - **Proposition I**: Cuccaro claimed his no contest pleas were coerced. - **Proposition II**: He alleged the trial court failed to follow mandatory Drug Court procedures. - **Proposition III**: He contended the trial judge abused discretion in terminating him. - **Proposition IV**: He argued that the sentencing was excessive. 5. **Court's Analysis**: - The court found that Proposition I was not a suitable subject for this appeal and should be addressed in a separate certiorari appeal regarding the plea. - Proposition II also fell outside the scope of the termination appeal, which is to assess the validity of the termination order. - For Proposition III, the court upheld that the decision to terminate Cuccaro was within the judge’s discretion, consistent with the evidence of non-compliance and new criminal activity. - Proposition IV regarding sentencing was similarly ruled to be outside the appeal context, advising Cuccaro to raise such claims in the separate certiorari appeal. 6. **Decision**: - The court affirmed the termination order, emphasizing the trial judge's proper authority and the sufficiency of the evidence for termination from Drug Court. ### Conclusion: The Court of Criminal Appeals affirmed the District Court's order to terminate Spencer Joe Cuccaro from Drug Court and advised him to pursue any excessive sentence claims separately. The decision reflects adherence to legal standards concerning plea agreements, drug court compliance, and the discretion exercised by trial judges in such matters. For more details, you can access the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1087_1734789881.pdf).

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RE-2018-645

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**Court of Criminal Appeals of the State of Oklahoma** **ANTWOIN LEE WALKER, Appellant, vs. THE STATE OF OKLAHOMA, Appellee.** **Case No. RE-2018-645** **Summary Opinion** **File Date: December 12, 2019** **KUEHN, VICE PRESIDING JUDGE:** Antwoin Lee Walker appeals the full revocation of his six-year suspended sentence in Case No. CF-2015-675 by District Judge Paul Hesse of the Canadian County District Court. **Background:** On October 27, 2015, Walker pled guilty to Petit Larceny (Count 1) and Knowingly Concealing Stolen Property (Count 2), resulting in a six-month county jail sentence on Count 1 and a ten-year sentence on Count 2, with four years suspended. On May 30, 2017, the State filed to revoke his suspended sentence, citing new charges including Attempt to Kill, Rape in the First Degree, and two instances of Petit Larceny, in Case No. CF-2017-445. Walker was subsequently convicted on May 10, 2018, of all counts in that case. During a hearing on June 19, 2018, which combined revocation and sentencing phases, Judge Hesse considered evidence from the jury trial and sentenced Walker to life imprisonment on Counts 1 and 2, among others. In the revocation portion, Walker’s attorney agreed to incorporate the trial evidence in assessing the probation violation. Judge Hesse found Walker had violated his probation and revoked the suspended sentence in full, ordering it to run concurrently with his sentences from Case No. CF-2017-445. **Proposition of Error:** Walker asserts the trial court erred by taking judicial notice of evidence from the prior trial. **Analysis:** The appellate court finds that there was no judicial notice taken. Walker consented to the combination of hearings and did not object to the incorporation of trial evidence into the revocation proceedings. The court notes the distinction from precedent cases, as Walker's situation involves a combined hearing rather than separate unrelated proceedings. Given that the trial court is afforded discretion in revocation matters and there was no abuse of that discretion, the court ultimately finds no reversible error. **Decision:** The order revoking Walker’s six-year suspended sentence is AFFIRMED. **Appearances:** - **For the Appellant:** Craig Corgan, Sarah MacNiven - **For the State:** Eric Epplin, Mike Hunter, Theodore M. Peeper **Opinion by:** KUEHN, V.P.J. **Concurred by:** LEWIS, P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. **Note:** For the full opinion, see [here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-645_1734427729.pdf).

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RE-2018-484

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**In the Court of Criminal Appeals of the State of Oklahoma** **Case No. RE-2018-484** **Summary Opinion** **Appellant:** Orville Tabe Keith, Jr. **Appellee:** The State of Oklahoma **Judge Hudson:** Orville Tabe Keith, Jr. appeals the revocation of his concurrent twelve-year suspended sentences following a revocation hearing where the State alleged that he violated probation by committing Manslaughter in the First Degree. **Background:** On March 5, 2009, Appellant pled guilty to two counts of Assault and Battery With a Dangerous Weapon. He was sentenced to twelve years on each count, with the sentences to run concurrently and suspended under specific probation conditions. The State filed a Motion to Revoke on March 23, 2017, based on allegations that Appellant committed Manslaughter in connection with the death of Brandon Martinez during an altercation on June 27, 2015. Evidence presented included DNA matching Appellant to items found at the crime scene and testimony from a neighbor, Donna Underwood, who claimed Appellant admitted to killing Martinez. **Revocation Hearing:** The revocation hearing took place on May 1, 2018. The court reviewed evidence including: - DNA analysis linking Appellant to the crime scene. - Testimony from Underwood about Appellant’s self-incriminating statements. Judge Fry found that Appellant violated his probation conditions, leading to a full revocation of his suspended sentences. **Appellant's Argument:** Keith appeals on the grounds that the evidence presented was insufficient to justify the revocation of his suspended sentences. He challenges the credibility of Underwood's testimony and suggests that another individual, Paul Anderson, may have committed the homicide. **Analysis:** Oklahoma law requires that alleged violations of probation conditions be proven by a preponderance of the evidence. The appeals court found that Underwood's testimony and the DNA evidence were adequate for a rational trier of fact to conclude that Appellant had violated the terms of his probation. **Decision:** The court affirmed the trial court's decision to revoke Appellant's concurrent twelve-year suspended sentences, concluding there was no abuse of discretion in Judge Fry's ruling. **Order:** The order of the District Court of LeFlore County is **AFFIRMED**. **Opinion by**: HUDSON, J. **Concurrences by**: LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J.; ROWLAND, J. --- For further details, you can [**download the PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-484_1734542820.pdf).

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RE-2018-674

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **LEON DESHAWN WRIGHT,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. RE-2018-674** **Filed July 18, 2019** **SUMMARY OPINION** **HUDSON, JUDGE:** This case involves an appeal by Appellant Leon Deshawn Wright from the revocation of his suspended sentence in Oklahoma County District Court, Case No. CF-2014-1676. **Background:** On April 30, 2015, Wright entered a guilty plea to Knowingly Concealing Stolen Property after a previous felony conviction, for which he was sentenced to five years of imprisonment, all suspended. The State filed an application to revoke this sentence on May 9, 2016, citing multiple violations, including failure to obtain a mental health assessment, failure to report to a drug rehabilitation program, failure to pay supervision fees, and possession of marijuana. A hearing was conducted on August 27, 2018, overseen by the Honorable Bill Graves, where the judge granted the State's application for revocation, leading to the current appeal. **Analysis:** At a revocation hearing, the court determines if the terms of the probation have been violated, which should be proven by a preponderance of the evidence. Revocation should not be overturned unless there's an abuse of discretion by the trial court. 1. **Possession of Marijuana:** Appellant argues insufficient evidence for this charge. The court agrees but finds sufficient evidence for the remaining violations. 2. **Failure to Pay Fees:** Appellant contends his failure to pay fees was not willful. The court finds it was Appellant's responsibility to demonstrate he was not willful in this failure. As Appellant did not provide evidence regarding his employment status or good-faith efforts to pay, the burden was not met. 3. **Full Revocation Justification:** Appellant argues that the violations do not justify full revocation. However, the court finds the failure to report alone is an adequate basis for revoking the suspended sentence. **Decision:** The Oklahoma Court of Criminal Appeals affirms the District Court's order revoking the suspended sentence in Case No. CF-2014-1676. **Judges’ Concurrence:** - **KUEHN, V.P.J.:** Concurred in part/dissented in part, stating that while he agreed some violations justified revocation, he dissented concerning the failure to pay fines, emphasizing that Appellant's evidence of homelessness and unemployment should have been considered. He finds the court should demonstrate more clarity on when failure to pay fines due to indigence suffices to avoid revocation. For further details and the full legal opinion, you can [download the PDF here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-674_1734423903.pdf).

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RE-2018-425

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ROBERT JOSEPH CLARK, JR.,** **Appellant,** **v.** **STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-425** --- **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** On April 9, 2015, Appellant Clark, represented by counsel, entered a guilty plea to Count 1, Possession of a Controlled Dangerous Substance (CDS) (Methamphetamine), and Count 2, Possession of a CDS (Psilocybin) in Oklahoma County Case No. CF-2014-8289. Sentencing was deferred for five (5) years, subject to terms and conditions of probation. On September 9, 2015, Clark's sentence in Case No. CF-2014-8289 was accelerated, and he was sentenced to eight (8) years each for Counts 1 and 2, all suspended, with terms and conditions of probation. That same date, Clark entered a guilty plea to Count 1, Assault and Battery with a Dangerous Weapon, and Count 2, Possession of a CDS in Oklahoma County Case No. CF-2015-3126. He was sentenced to eight (8) years for each count, all suspended, also subject to terms and conditions of probation. Clark's sentences in Case No. CF-2015-3126 were ordered to run concurrently with his sentences in Case No. CF-2014-8289. Additionally, Clark entered a guilty plea in Oklahoma County Case No. CF-2015-3693 for Possession of a CDS, receiving a sentence of three (3) years, all suspended, which was ordered to be served consecutively to his sentence in Case No. CF-2015-3126. On March 24, 2017, the State filed an Application to Revoke Clark's suspended sentences in all three referenced cases, alleging the commission of new offenses in Oklahoma County Case Nos. CF-2016-7039 (possession of stolen property and possession of drug paraphernalia) and CM-2016-2833 (obstructing an officer and failing to wear a safety belt). Following a revocation hearing on April 17, 2018, the District Court of Oklahoma County, presided over by the Honorable Ray C. Elliott, revoked Clark's suspended sentences in full. Clark's sole proposition of error on appeal alleges an abuse of discretion in revoking his suspended sentences, claiming that the sentence is excessive. The revocation of Clark's suspended sentences is AFFIRMED. The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. We examine the basis for the factual determination and assess whether there was an abuse of discretion. It is established that violation of even one condition of probation is sufficient to justify the revocation of a suspended sentence. Based on the appeal record, there appears to be no merit in Clark's contention that the full revocation of his suspended sentences is excessive, nor do we find an abuse of discretion in Judge Elliott's decision. **DECISION** The order of the District Court of Oklahoma County revoking Appellant's suspended sentences in Case Nos. CF-2014-8289, CF-2015-3126, and CF-2015-3693 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 delivery and filing of this decision. --- **APPEARANCES AT TRIAL** **THOMAS HURLEY** **ASST. PUBLIC DEFENDER** **OKLAHOMA COUNTY PUBLIC DEFENDER'S OFFICE** **611 COUNTY OFFICE BLDG.** **320 ROBERT S. KERR AVE.** **OKLAHOMA CITY, OK 73102** **COUNSEL FOR APPELLANT** **KIRK MARTIN** **ASST. DISTRICT ATTORNEY** **OKLAHOMA COUNTY** **320 ROBERT S. KERR SUITE 505** **OKLAHOMA CITY, OK 73102** **COUNSEL FOR THE STATE** **OPINION BY:** LEWIS, P.J. **KUEHN, V.P.J.: Concur** **LUMPKIN, J.: Concur** **HUDSON, J.: Concur** **ROWLAND, J.: Concur** --- [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-425_1734692953.pdf)

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RE-2018-231

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This summary opinion addresses the appeal of Latarsha Grant concerning the revocation of her suspended sentences in two criminal cases. Below is a concise breakdown of the key points from the opinion: ### Background - Latarsha Grant was convicted in 2007 for Assault and Battery with a Dangerous Weapon (Case No. CF-2007-359) and sentenced to ten years with the sentence suspended. - In 2011, she was involved in new criminal activities leading to further actions against her suspended sentence. - By 2012, she had entered a guilty plea in a new case regarding drug distribution (Case No. CF-2011-269) with a concurrent ten-year suspended sentence after completing a rehabilitation program. - In 2017, a motion to revoke her suspended sentences was filed due to allegations of her involvement in a robbery, leading to the revocation hearing in 2018. ### Procedural History - The trial court, after hearing evidence, revoked her suspended sentences due to her involvement in the new crimes and appeared to find sufficient evidence against her. ### Appellate Claims Grant raised seven propositions of error, which the court proceeded to analyze: 1. **Competent Evidence**: The court found sufficient evidence that Grant had violated the terms of her suspended sentences. The evidence established her involvement in planning the robbery and her presence during the crime. 2. **Right to Confront Witnesses**: The court concluded that the hearsay issues raised were not applicable, as revocation procedures allow for such evidence. Furthermore, all relevant witnesses were available for cross-examination. 3. **Jurisdiction Concerns**: Grant's arguments relating to the trial court's jurisdiction or abuse of discretion regarding specific offenses were deemed misdirected, as they pertain to her original plea which she could challenge separately. 4. **Excessive Sentencing**: Grant claimed her overall sentence was excessive, but this is tied to the context of her behavior and criminal activities, which justified the trial court's decisions. 5. **Ineffective Assistance of Counsel**: Similar to the above, claims surrounding the inadequacy of her representation in court were not appropriately addressed in this revocation context and would need separate proceedings. 6. **Nunc Pro Tunc Orders**: Grant sought to correct inaccuracies related to her plea and sentencing, which would also need to be handled through a different legal mechanism than this appeal. ### Conclusion The appellate court affirmed the decision of the District Court to revoke the suspended sentences, stating that the evidence supported the trial court's findings. The court dismissed all of Grant's claims based on their analysis of procedural and evidential standards, emphasizing the limitations of their review scope in revocation appeals. ### Decision Issued The order to revoke the concurrent suspended sentences was **AFFIRMED**. The court ordered the issuance of the mandate. ### Document Access A link to the full opinion is provided for those seeking detailed legal reasoning: [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-231_1734701780.pdf).

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C-2018-372

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **LAVONTE ANTONIO JOHNSON,** **Petitioner,** **v.** **THE STATE OF OKLAHOMA,** **Respondent.** **Case No. C-2018-372** **SUMMARY OPINION DENYING PETITION FOR WRIT OF CERTIORARI** **Filed May 39, 2019** **JOHN D. HADDEN, CLERK** **LEWIS, PRESIDING JUDGE:** Lavonte Antonio Johnson, Petitioner, pled guilty to using a vehicle to facilitate the intentional discharge of a firearm, in violation of 21 O.S.2011, § 652(B), in the District Court of Oklahoma County, Case No. CF-2014-2033. The Honorable Susan K. Johnson, Special Judge, accepted the plea and deferred judgment for five (5) years, subject to rules and conditions of probation. The State later moved to accelerate the judgment, alleging that Petitioner violated the rules and conditions of probation by possessing a firearm and jumping bail. The Honorable Ray C. Elliott, District Judge, accelerated judgment and sentenced Petitioner to twenty-seven (27) years imprisonment. Petitioner filed a motion to withdraw his guilty plea, which the trial court denied. Petitioner now seeks a writ of certiorari based on the following propositions of error: 1. Petitioner did not knowingly and voluntarily enter his plea of guilty, and the district court erred when it denied his application to withdraw the plea. 2. Petitioner received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution. 3. Petitioner’s 27-year sentence is excessive under the Eighth Amendment and shocks the conscience. Certiorari review is limited to whether the plea was entered voluntarily and intelligently before a court of competent jurisdiction, whether the sentence is excessive, whether counsel was effective at either the plea hearing or the withdrawal hearing, and whether the State has the power to prosecute the defendant. ### Proposition One In this proposition, Petitioner claims that the record shows he did not voluntarily enter his plea, due to a notational error by his counsel regarding the 85% rule applicable to his sentence. The court points out that a valid plea represents a voluntary and intelligent choice among alternatives. The ruling on a motion to withdraw a plea is reviewed for abuse of discretion. The trial court concluded that despite the error, Petitioner was properly informed about the 85% crime classification, denying this proposition. ### Proposition Two Petitioner argues that his counsel failed to adequately advise him regarding the ramifications of the 85% rule, thus rendering his plea involuntary. The court reviews this claim under the two-pronged Strickland standard for ineffective assistance of counsel. The court found that Petitioner did not show that counsel's performance was deficient or that it prejudiced him, denying this proposition. ### Proposition Three Petitioner argues that his sentence is excessive. The court notes that a sentence within the statutory range will not be modified unless it shocks the court's conscience. Given that Petitioner violated probation for a violent felony by possessing a firearm and jumping bail, the court finds that the sentence does not shock the conscience, thus denying this proposition. ### Decision The petition for the writ of certiorari is DENIED. The Judgment and Sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon delivery and filing of this decision. **APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE** ### APPEARANCES AT TRIAL **TONY COLEMAN** **ATTORNEY FOR PETITIONER** ### APPEARANCES ON APPEAL **ANDREA DIGILIO MILLER** **ATTORNEY FOR PETITIONER** **LORENZO BANKS** **THOMAS HURLEY** **ATTORNEYS FOR DEFENDANT** **DANIEL POND** **ATTORNEY FOR THE STATE** **OPINION BY: LEWIS, P.J.** **KUEHN, V.P.J.: Concur** **LUMPKIN, J.: Concur** **HUDSON, J.: Concur** **ROWLAND, J.: Concur** [**Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-372_1734105356.pdf)

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F-2017-1301

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In OCCA case No. F-2017-1301, William Curtis Box appealed his conviction for Aggravated Domestic Assault and Battery. In an unpublished decision, the court decided to affirm the acceleration of his deferred judgment, which meant that his earlier decision to defer judgment was changed to a conviction. One judge dissented. The case started when Box was found guilty of a crime related to domestic violence and was given a deferred judgment, meaning he wouldn’t have a criminal record if he followed certain conditions for ten years. However, he did not follow those conditions and committed another crime called Obstructing an Officer. When the State of Oklahoma found out, they asked the court to change his deferred judgment to a conviction. Box argued that his probation should not be accelerated because the court did not have a written list of rules for his probation. He referred to previous cases from 1969 and 1970 which ruled in favor of defendants when there were no signed probation rules. However, the court explained that in later cases, they decided that a person on probation should understand they cannot commit any further crimes, even without a written agreement. Box also asked to withdraw his agreement to the State's application to change his probation status but could not find any laws that allowed him to do so. The court noted that a stipulation, or agreement, to accelerate a deferred judgment is different from things like guilty pleas, and there is no established way to take back such an agreement. Moreover, Box claimed that his sentence was too harsh. However, the court stated that during an acceleration appeal, they can only examine whether the acceleration was lawful, not whether the sentence was too long. Ultimately, the court upheld the decision to accelerate Box's judgment to a conviction based on his probation violation. They found no evidence of an abuse of discretion by the lower court in making this decision.

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RE-2018-644

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**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** **FILED APR 25 2019** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** ROWLAND, JUDGE: This appeal arises from the revocation of Dustin Ardell Cruce’s suspended sentence in Okfuskee County District Court Case No. CF-2016-143, adjudicated by the Honorable Lawrence W. Parish. On February 22, 2017, Cruce entered a guilty plea to multiple charges, including Assault With a Dangerous Weapon and Possession of a Controlled Dangerous Substance, resulting in a total sentence of ten years for the most serious counts, suspended in part. On October 31, 2017, the State filed a Motion to Revoke Suspended Sentence, citing Cruce's failure to pay ordered reimbursement fees and alleged new criminal activity. However, the State subsequently abandoned the new crime allegation as part of a plea agreement in a separate case, leaving only the failure to pay as the basis for revocation. At the revocation hearing on May 2, 2018, the trial court determined that Cruce had indeed violated his probation by failing to fulfill financial obligations. Despite Cruce's claims regarding his employment status and efforts to comply, he provided no evidence of bona fide attempts to make the required payments. The standard for revocation allows the State to meet its burden by a preponderance of the evidence, and one proven violation is sufficient to justify a full revocation of a suspended sentence. Judge Parish opted to revoke only half of Cruce's remaining suspended sentence, demonstrating leniency. Cruce’s appeal asserts that the trial court abused its discretion by imposing revocation. However, as established in previous case law, including *Sparks v. State* and *Livingston v. State*, the court has broad discretion in these matters. The trial court was within its rights to revoke the suspension based on the stipulated violation of payment obligations. The decision of Judge Parish is affirmed, as Cruce has not demonstrated an abuse of discretion. **DECISION** The revocation of Appellant's suspended sentence in Okfuskee County District Court Case No. CF-2016-143 is AFFIRMED. **Legal Representation:** Counsel for Appellant: CURT ALLEN Counsel for Appellee: EMILY MUELLER, ASST. DISTRICT ATTORNEY **OPINION BY:** ROWLAND, J. **Concur:** LEWIS, P.J.; KUEHN, V.P.J. (Concur in Results); LUMPKIN, J.; HUDSON, J.

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RE-2017-113

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In the case of Ruben Geraldo Velasquez v. The State of Oklahoma, the appellant appealed the revocation of his suspended sentences across multiple cases in the Caddo County District Court. The appeals were addressed by the Oklahoma Court of Criminal Appeals. The appellant had pleaded guilty to multiple charges, including possession of a firearm after conviction, driving under the influence, and domestic assault. His sentences were imposed with significant portions suspended, and he was placed on probation. However, the State filed a petition to revoke his suspended sentences citing several violations, including failure to pay fees, failure to report, changes in address, and new criminal offenses. The trial court revoked the appellant's suspended sentences in full after a hearing, and the appellant raised several propositions of error on appeal. The court determined that the first two propositions, which challenged the validity of the original sentences, were not properly resolved through this appeal and needed to follow certiorari procedures instead. The court found that the amendment to the revocation order, which removed post-imprisonment supervision, rendered one of the propositions moot. Regarding claims of ineffective assistance of counsel, the court concluded that the appellant had not demonstrated any deficiency in counsel's performance nor shown any resulting prejudice. The appellant's argument that the trial court abused its discretion by denying credit for time served was found to have no supporting legal authority, as the court indicated that there is no statutory requirement for such credit to be granted. Lastly, the court rejected the appellant's assertion that the revocation was excessive. The evidence presented to the trial court satisfied the standard necessary to revoke the suspended sentences, affirming that the burden of proof for violations is preponderance of the evidence, and that the decision to revoke is within the discretionary power of the trial court. Ultimately, the Oklahoma Court of Criminal Appeals affirmed the trial court’s decision to revoke the appellant's suspended sentences across all cited cases, concluding that there was no abuse of discretion in the revocation. The mandates for this decision were ordered to be issued following the filing of the opinion. The decision is summarized as follows: **The revocation of Ruben Geraldo Velasquez's suspended sentences is AFFIRMED.**

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RE-2016-1049

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In OCCA case No. RE-2016-1049, George appealed his conviction for violating the conditions of his probation. In an unpublished decision, the court decided to affirm the revocation of his suspended sentence in one case and reversed the revocations in three other cases with instructions to dismiss. One judge dissented. George had a history of criminal activity, including a guilty plea to second-degree statutory rape. He received a sentence with parts suspended, allowing him to leave prison if he followed probation rules, including not having contact with minors. This became an issue when George was found to be in contact with his biological son, which he claimed was unconstitutional since he was not the victim of his previous crime. During a hearing, evidence showed that George was discovered with a child, and while he later claimed that it was his son, the court found that the state proved he violated his probation by having contact with a minor. The court affirmed the revocation in the case where this violation occurred, stating that a single violation is enough to revoke probation. However, George was also accused of failing to pay court costs in three other cases. The court decided that there wasn’t enough evidence to prove he failed to pay, thus reversing the decision to revoke his probation in those cases. The court instructed the lower court to dismiss those revocations. This decision recognized the importance of proving probation violations with solid evidence, especially regarding financial obligations.

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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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RE 2016-0784

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In OCCA case No. RE 2016-0784, James Wilbur Allen appealed his conviction for the revocation of his suspended sentences related to six counts of Child Sexual Abuse. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences. One judge dissented.

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RE-2016-135

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In OCCA case No. RE-2016-135, Michael Brian Harrington appealed his conviction for violating probation. In a published decision, the court decided to deny the State's motion to dismiss the appeal as moot. The State had argued that Harrington's new ten-year sentence for a different crime made his revocation appeal unnecessary. However, the court found that his prior sentences could still affect how long he remains in prison, so the appeal matters.

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RE-2015-735

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In OCCA case No. RE-2015-735, Kathy Lynn Logan appealed her conviction for the revocation of her suspended sentences. In an unpublished decision, the court decided to reverse and remand the case. The court found that Logan was not given the proper opportunity to have a lawyer assist her during the revocation hearing, which is a requirement by law. The court noted that both Logan and the State agreed that the trial court did not properly check if Logan needed a lawyer, which meant she was denied her rights.

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RE-2015-104

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In OCCA case No. RE-2015-104, Eric Lamont Muhammad appealed his conviction for revocation of his suspended sentence. In an unpublished decision, the court decided to reverse the District Court's order to revoke his sentence and send the case back for further proceedings. One judge dissented, arguing that the hearing was held in a timely manner.

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RE-2014-371

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In OCCA case No. RE-2014-371, Holland appealed his conviction for Rape in the Second Degree. In a published decision, the court decided to modify the revocation order regarding his suspended sentence. One judge dissented. Holland pleaded guilty to a crime and received a sentence that included five years of imprisonment, but with some of that time suspended as long as he followed rules set by the court. However, he did not follow these rules, such as reporting to his probation officer and attending required treatment. Because of this, the court revoked his suspended sentence and ordered him to serve the full five years. Holland felt the punishment was too harsh and claimed he had tried to follow the rules. He argued that he should not have to serve the full five years because only a part of that sentence was supposed to be enforced. The court looked carefully at his claims. They found that Holland had not fully complied with the rules he agreed to follow, and therefore, they believed the judge was correct in deciding to revoke his suspension. However, they agreed that the judge had made an error when stating he had to serve five years in prison since he had already served part of that time. Ultimately, the court decided to change the revocation order so that Holland would only need to serve four years and eleven months, which is the remaining part of his original sentence. The court confirmed their decision and instructed the District Court to make the necessary changes.

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RE-2014-248

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In OCCA case No. RE-2014-248, Harvell appealed his conviction for violating conditions of probation related to drug possession. In an unpublished decision, the court decided to reverse the lower court's order that sentenced him to prison. The court concluded that the District Court lost its authority to revoke his suspended sentence when the state asked to dismiss the motion. Judge Smith dissented.

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RE-2013-1177

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In OCCA case No. RE-2013-1177, Ford appealed his conviction for Domestic Assault and Battery by Strangulation. In a published decision, the court decided to affirm the revocation of his suspended sentence but vacate the sentencing portion, ordering that a new sentencing order not exceed the original sentence. No one dissented.

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RE-2013-1027

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In OCCA case No. RE-2013-1027, Justin Michael Jay appealed his conviction for Forgery in the Second Degree. In an unpublished decision, the court decided to reverse and remand the case for corrections. One judge dissented. Justin Michael Jay was in trouble with the law and had a suspended sentence, which means he wouldn’t have to serve time in jail if he followed the rules. He had pleaded guilty to forgery and was given a suspended sentence of five years, but he had to spend the first 30 days in jail. However, things changed when he was accused of breaking the rules of his probation. The State, which is the side that brings charges, said that Jay did not pay the money he owed for supervision, restitution (the money owed to victims), and court costs. They also noted that Jay was charged with more crimes: Domestic Abuse and Possession of Drug Paraphernalia. Because of these new charges and failures to pay, the State asked the court to revoke Jay's suspended sentence. The court held a hearing to discuss Jay's situation. After listening to the evidence and arguments, the judge decided to revoke the rest of Jay's suspended sentence. This meant that Jay would have to serve the time he had left, which was almost five years. Later, the court filed a document that said Jay was revoked for 4 years and 335 days, and that he would have to be supervised after getting out of jail. Jay appealed this decision, arguing two main points. First, he claimed that the amount of time the judge revoked was wrong because he should have received credit for more days served when he was part of a special program for youthful offenders. Both Jay and the State agreed on this point, saying he should have been credited for 183 days instead of just 30. Therefore, they asked to change the revocation time to 4 years and 182 days. The second point Jay argued was that the court did not have the authority to order him to be under supervision after finishing his time in jail because the law about that only applies to those who were sentenced after November 1, 2012. Since Jay's original guilty plea and sentencing were before that date, the judge should not have included that supervision requirement. In the end, the court agreed with Jay on both points. They reversed the judgment that included the incorrect time and the unnecessary supervision requirement. They ordered the lower court to make the corrections and update the documents accordingly.

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RE 2013-0885

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In OCCA case No. RE 2013-0885, Lela Mae Goodwin appealed her conviction for violation of her probation due to several reasons, including drug use and not attending treatment. In an unpublished decision, the court decided to uphold the revocation of her suspended sentences but ordered the district court to remove a part that imposed post-imprisonment supervision. One judge dissented.

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RE-2013-250

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In OCCA case No. RE-2013-250, Richard Shane Kuehn appealed his conviction for Lewd Molestation. In a published decision, the court decided that the revocation of seven years of Kuehn's twelve-year suspended sentence was reversed because the judge who decided his case had previously worked as a prosecutor on it. Kuehn claimed he did not get a fair hearing because of this, and the court agreed, stating that judges cannot preside over cases in which they have been involved as attorneys without consent from the parties. Kuehn's other claims were not reviewed since the court found for him on the first point.

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RE 2011-0359

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In OCCA case No. RE 2011-0359, Lorance Ridell Dever appealed his conviction for a violation of probation after pleading guilty to Assault and Battery with a Deadly Weapon. In an unpublished decision, the court decided to reverse and remand the case, meaning they disagreed with the lower court's decision to revoke his suspended sentence. One judge dissented.

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