Sanction Archives - OCCA Opinions

F-2018-375

Post author:Staff
Post published:June 13, 2019
Post category:F

In OCCA case No. F-2018-375, Jones appealed his conviction for multiple offenses including possession of controlled substances and public intoxication. In a published decision, the court decided to affirm the termination of Jones from Drug Court and his sentencing, while also remanding a separate charge for correction regarding sentencing length for public intoxication. One judge dissented. Jones had multiple guilty pleas and was given the chance to participate in a Drug Court program with the understanding that if he successfully completed it, his charges would be dropped. However, if he failed, he would face prison time. Although he had some chances and was sanctioned when he did not adhere to the program, he repeatedly tested positive for drugs, which caused the state to move for his termination from the program. During the hearings, witnesses from the state presented evidence that showed Jones had a new arrest for driving under the influence of alcohol and had failed multiple drug tests. Jones's defense argued that he had made progress and changed for the better, but the judge decided to terminate him from the Drug Court program based on the evidence of his continued drug use and new charges. The court found that his actions justified the termination. Additionally, the court recognized an error in Jones's sentencing for public intoxication because it exceeded the maximum allowed by law. The court ordered that part of the case be sent back to correct the sentence. The final decision was to uphold the termination from Drug Court but allow a correction on the public intoxication charge's sentencing in a separate order.

RE-2018-155

Post author:Staff
Post published:May 23, 2019
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)**

RE-2017-264

Post author:Staff
Post published:December 27, 2018
Post category:RE

In OCCA case No. RE-2017-264, Damion Deshawn Polk appealed his conviction for Domestic Abuse (Assault and Battery) After Former Conviction of Two or More Felonies. In an unpublished decision, the court decided to reverse the revocation of the balance of his suspended sentence. One judge dissented. The case started when Polk was given a ten-year sentence that was suspended, meaning he wouldn't have to go to prison right away. He had to follow certain rules, including paying fees, doing community service, and staying out of trouble. However, he did not follow these rules, and the State asked for his sentence to be revoked. At a hearing, Polk admitted to using drugs, which was one of the reasons his probation was being revoked. The judge gave him a punishment by sending him to jail for ninety days. After he served this time, he was supposed to report to a program but missed his next court date. Later, when the judge reviewed the case again, he revoked Polk's suspended sentence entirely. However, during the appeal, the court found that Polk had already been punished for his drug use and that the judge should not have fully revoked his sentence for that same violation. The appellate court decided that there should have been new violations presented for the full revocation. As a result, the court reversed the judge's decision to revoke Polk's suspended sentence completely. They noted that a suspended sentence can't be revoked for a reason that has already been punished. The appellate court ruled that since Polk had already faced penalties for his prior drug use, the judge should have considered that before taking away the rest of his suspended sentence.

RE-2015-767

Post author:Staff
Post published:November 18, 2016
Post category:RE

In OCCA case No. RE-2015-767, the appellant appealed her conviction for Assault and Battery with a Dangerous Weapon. In an unpublished decision, the court decided to affirm the revocation of her suspended sentence but ordered the lower court to give her credit for time served in jail. The court also agreed that imposing nine months of supervision after her imprisonment was not appropriate. No judge dissented.

M-2013-918

Post author:Staff
Post published:December 12, 2014
Post category:M

In OCCA case No. M-2013-918, the appellant appealed his conviction for direct contempt of court. In a published decision, the court decided to reverse and remand the case for further proceedings. One judge dissented, stating that while the court's warning was correct, the error in not allowing the appellant a chance to be heard was harmless because the appellant's sentence was later reduced.