Suspended Sentence Archives - Page 2 of 8

RE-2018-662

Post author:Staff
Post published:August 29, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **RYAN MITCHELL CRONIC,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-662** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA AUG 29 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Ryan Mitchell Cronic, pleaded guilty to three felony counts of Concealing Stolen Property in Oklahoma County District Court Case No. CF-2013-2184. He was sentenced to five years suspended on each count and was ordered to pay restitution. Additionally, he pleaded guilty to one felony count of Concealing Stolen Property in Oklahoma County District Court Case No. CF-2015-580, which resulted in a five-year imprisonment sentence, also suspended in full and ordered to run concurrently with Case No. CF-2013-2184, with credit for time served. The State filed an Application to Revoke Suspended Sentence for each case, alleging Appellant failed to pay supervision fees and restitution. Appellant stipulated to these allegations and received a sentence of thirty days in the custody of the Oklahoma County Sheriff. The applications to revoke were later dismissed by the State's motion. A second Application to Revoke Suspended Sentence was filed alleging that Appellant again failed to pay supervision fees and restitution, as well as including new charges: Aggravated Attempting to Elude a Police Officer, Driving While Revoked, and Failure to Provide Proof of Security Verification. After a hearing, the Honorable Timothy R. Henderson, District Judge, ordered Appellant's suspended sentences revoked in full. Appellant appeals this revocation, claiming it was an abuse of discretion. We affirm the order of the District Court regarding the revocation of Appellant's suspended sentences. The decision to revoke suspended sentences lies within the trial court's discretion and will not be disturbed unless there is an abuse. An abuse of discretion is described by this Court as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Appellant has not demonstrated an abuse of discretion in the present case. However, there is a discrepancy in the record regarding Appellant's sentences. The Judgment and Sentence for both cases states Appellant was given a ten-year suspended sentence, while all other documents refer to a suspended sentence of five years. Consequently, we remand this matter to the District Court to address this inconsistency. **DECISION** The District Court's revocation of Appellant's suspended sentences in Oklahoma County District Court Case Nos. CF-2013-2184 and CF-2015-580 is **AFFIRMED**, but the case is **REMANDED** to the District Court for further proceedings consistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the **MANDATE is ORDERED** to be issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE** **APPEARANCES AT APPEAL REVOCATION HEARING** **RICHARD HULL** **COUNSEL FOR DEFENDANT** **HALLIE E. BOVOS** **611 COUNTY OFFICE BLDG.** **OKLAHOMA CITY, OK 73102** **COUNSEL FOR APPELLANT** **KELLY COLLINS** **OKLAHOMA COUNTY DISTRICT ATTORNEY** **MIKE HUNTER** **ATTORNEY GENERAL OF OKLA.** **COUNSEL FOR THE STATE** **OPINION BY:** KUEHN, V.P.J.: **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR**

RE-2018-858

Post author:Staff
Post published:August 15, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JEREMY LANCE LABBY,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2018-858** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **AUG 15, 2019** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** Appellant Jeremy Lance Labby appeals from the revocation of his suspended sentence in Cherokee County District Court Case No. CF-2015-149. Labby was originally charged with Unauthorized Use of a Motor Vehicle, in violation of 47 O.S.2011, § 4-102. On December 15, 2016, Labby entered a plea of no contest and was sentenced to three years imprisonment, with all three years suspended. On June 20, 2018, the State filed a 2nd Amended Motion to Revoke Suspended Sentence, alleging multiple violations of probation, including new crimes related to two counts of Assault and Battery on a Police Officer, Theft of Property in Benton County, Arkansas, and First Degree Burglary and Resisting Arrest in Cherokee County. Following a revocation hearing, Special Judge Gary Huggins revoked Labby's suspended sentence in full. In his sole proposition, Labby contends that the revocation of his suspended sentence was excessive and represents an abuse of discretion. He argues that despite his limited intellect and efforts to comply with probation requirements—such as being current on probation fees and meeting with probation officers—Judge Huggins’s decision to revoke his sentence in full was unwarranted. The Court finds Labby’s claims to be without merit. A suspended sentence is a matter of grace, and the State needs to establish only one violation of probation to revoke a suspended sentence in its entirety. The State successfully demonstrated that Labby committed multiple violations, including new felony offenses, while on probation. The determination to revoke a suspended sentence, either in whole or in part, rests within the trial court’s sound discretion, and such decisions are not to be disturbed absent a clear abuse of that discretion. Although it is noted that Judge Huggins had the option to impose a lesser penalty, his discretion to choose full revocation is justified by the evidence presented, which established significant violations by Labby. **DECISION** The Court affirms the revocation of Appellant's suspended sentence in Cherokee County District Court Case No. CF-2015-149. Pursuant to Rule 3.15 of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the Mandate is ordered issued upon the filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF CHEROKEE COUNTY, THE HONORABLE GARY HUGGINS, SPECIAL JUDGE** **APPEARANCES AT REVOCATION** **CRYSTAL JACKSON** Counsel for Defendant 239 W. Keetoowah Tahlequah, OK 74464 **MARK HOOVER** Counsel for Appellant P.O. Box 926 Norman, OK 73070 **CODY BOWLIN** Counsel for State ASST. DISTRICT ATTORNEY 213 W. Delaware Tahlequah, OK 74464 **MIKE HUNTER** Counsel for Appellee OKLA. ATTORNEY GENERAL 313 N.E. 21st Street Oklahoma City, OK 73105 **OPINION BY:** LEWIS, P.J. **KUEHN, V.P.J.:** Concur **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur **RA/F** *Click Here To Download PDF*

RE-2018-611

Post author:Staff
Post published:August 15, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **SHAZEL STEEL,** Appellant, v. **STATE OF OKLAHOMA,** Appellee. **No. RE-2018-611** **FILED IN COURT OF CRIMINAL APPEALS, STATE OF OKLAHOMA AUG 15 2019** **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **LUMPKIN, JUDGE:** On June 6, 2015, Appellant, Shazel Steel, pled guilty in three separate cases in Tulsa County. The details of these cases are summarized as follows: 1. **Case CF-2015-1948**: Appellant was convicted of Robbery in the First Degree and sentenced to twenty years imprisonment and fined $500.00. 2. **Case CF-2015-2091**: Appellant was convicted on Count 1 of Robbery with a Firearm and Count 2 of Burglary in the First Degree, receiving a twenty-year sentence and a fine of $100.00 for each count. (Count 3 was dismissed). 3. **Case CF-2015-2152**: For Count 1 (Robbery with a Firearm) and Count 2 (Kidnapping), Appellant received a twenty-year sentence each, while Count 3 (Assault with a Dangerous Weapon) led to a ten-year sentence and a fine of $100.00. (Count 4 was dismissed). All sentences were set to run concurrently, with a two-year judicial review period established. During the Judicial Review proceeding on June 5, 2017, Appellant's sentences were modified to be suspended in full. However, the State subsequently filed applications to revoke these suspended sentences based on allegations of violations related to ongoing criminal activity and non-compliance with probation conditions. The revocation hearing revealed that Appellant was in possession of a firearm while driving without a license, which was a violation of probation Rule #7 that prohibited being in a vehicle where firearms are located. Multiple other violations related to probation were also noted, leading to the revocation of Appellant's suspended sentences in full by the Honorable James M. Caputo. On appeal, Appellant challenges the revocation on the following grounds: 1. The evidence was insufficient to establish that he knowingly and willfully possessed a firearm. 2. The District Court abused its discretion in revoking the entire sentence. The Court addressed these propositions: **I.** The standard for revocation is whether the trial court abused its discretion. Given the evidence from Officer Terwilliger indicating that a loaded firearm was found in a car Appellant was operating, the Court deemed that the evidence sufficiently supported the revocation of the suspended sentences. **II.** As for the claim of abuse of discretion, the trial court’s decision to revoke the full suspended sentence was found to be reasonable given the multiple violations of probation. Thus, the Court affirmed the order granting the State's applications for revocation of the suspended sentences in all three Tulsa County District Court Cases. **DECISION:** The order revoking Appellant's suspended sentences is **AFFIRMED**. **APPEARANCES:** - **At Trial**: Kayla Cannon, Assistant Public Defender for Appellant; Sean Waters, Assistant District Attorney for the State. - **On Appeal**: Nicole Herron, Counsel for Appellant; Mike Hunter and Tessa L. Henry, Counsel for the State. **OPINION BY:** **LUMPKIN, J.:** **LEWIS, P.J.:** Concur **KUEHN, V.P.J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur **[Download PDF of Full Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-611_1734429007.pdf)**

RE-2018-769

Post author:Staff
Post published:July 18, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant, Robert Kenneth Kramer, appeals from the revocation of his suspended sentence in Okfuskee County District Court Case No. CF-2015-100. On September 9, 2015, Appellant entered a negotiated plea of nolo contendere to Financial Exploitation by a Caregiver (21 O.S.2011, § 843.1) After Former Conviction of a Felony (21 O.S.Supp.2011, § 51.1). He was sentenced to a term of imprisonment for ten years, with the final six years suspended. On May 31, 2017, the trial court modified the suspended portion of the sentence from six to eight years. On March 28, 2018, the State filed an application to revoke the suspended sentence, alleging that Appellant had committed new crimes: possessing a cell phone while incarcerated and knowingly concealing stolen property. A hearing on the application was held on July 11, 2018, before the Honorable Lawrence W. Parish, District Judge. Judge Parish granted the State's application and revoked the eight-year suspended sentence in full. **ANALYSIS** The standard for revocation of a suspended sentence requires a determination of whether the terms of the suspension order have been violated, which must be proven by a preponderance of the evidence. A trial court's decision to revoke should not be reversed unless there is an abuse of discretion. 1. **Proposition I: Violation of the 20-day Rule** Appellant claims the district court violated the 20-day Rule as stated in 22 O.S.Supp.2012, § 991b(A). Since Appellant did not raise this objection at the hearing, the review is for plain error. Appellant failed to demonstrate that any deviation affected his substantial rights, and he had previously waived his right to a hearing within the statutory time-frame. Therefore, this proposition is denied. 2. **Proposition II: Sufficiency of Evidence** Appellant argues that the evidence was insufficient to support the conclusion that he possessed a cell phone while in jail. Testimony from Appellant's ex-wife indicated that she received text messages from a phone she associated with him. Additionally, a jailer testified about witnessing inmates, including Appellant, trying to destroy a cell phone. This evidence satisfies the preponderance standard. **DECISION** The order revoking Appellant's suspended sentence in Case No. CF-2015-100 is AFFIRMED. **APPEARANCES:** - Counsel for Appellant: Curt Allen, Jeremy Stillwell, Indigent Defense System - Counsel for State: Emily Mueller, Assistant District Attorney; Mike Hunter, Attorney General of Oklahoma; Theodore Peeper, Assistant Attorney General **OPINION BY: ROWLAND, J.:** LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur in Results HUDSON, J.: Concur **[End of Summary Opinion]** For further details, you may view the full court opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-769_1734420410.pdf).

RE-2018-674

Post author:Staff
Post published:July 18, 2019
Post category:RE

**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).

M-2018-335

Post author:Staff
Post published:July 11, 2019
Post category:M

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JULIUS LAMAR WRIGHT,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. **No. RE 2018-0144** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JUL 11 2019** **SUMMARY OPINION** LEWIS, PRESIDING JUDGE: Appellant Julius Lamar Wright entered a plea of guilty in the District Court of Oklahoma County, Case No. CF-2009-228, for Count 1 - Possession of a Controlled Dangerous Substance With Intent to Distribute (Marijuana) and Count 2 - Possession of Drug Paraphernalia. On April 28, 2009, Appellant received a five-year deferred sentence on each count. On March 6, 2012, Appellant pled guilty to allegations in the application to accelerate his deferred sentences, resulting in a ten-year suspended sentence (first five years in custody) for Count 1, and one year in the Oklahoma County Jail for Count 2. These sentences were ordered to run concurrently with each other and with CF-2011-1457. Appellant was charged with Domestic Abuse by Strangulation on December 9, 2015, in Oklahoma County District Court Case No. CF-2015-8860. He entered a no contest plea and was given a ten-year suspended sentence with probation conditions, which ran concurrently with the earlier cases and included credit for time served. The State's motion to revoke Appellant's suspended sentence in Case No. CF-2009-228 due to the new charge and failure to pay restitution was dismissed on June 28, 2016, as part of the plea agreement in Case No. CF-2015-8860. On June 29, 2017, the State filed a motion to revoke Appellant's suspended sentences in Cases CF-2009-228 and CF-2015-8860, alleging a new crime of Possession of a Controlled Dangerous Substance in Oklahoma County District Court Case No. CF-2017-2733. After a revocation hearing on January 31, 2018, Appellant's suspended sentences in both cases were revoked. Appellant appeals the revocation of his suspended sentences, raising two propositions of error: 1. The evidence presented during his revocation hearing should have been excluded as it was obtained through egregious police conduct violating his Fourth Amendment rights. 2. The trial court abused its discretion by revoking Appellant's sentences in full, constituting a violation of his due process rights and resulting in an excessive sentence. We affirm the District Court's decision to revoke Appellant's suspended sentences in full. Appellant's first argument was not raised at the revocation hearing, leading us to review for plain error. To claim relief under the plain error doctrine, Appellant must prove: (1) an actual error occurred; (2) the error is clear and obvious; and (3) the error affected his substantial rights, impacting the outcome of the hearing. We find no plain error and conclude that the trial judge did not abuse discretion in finding Appellant violated the conditions of his suspended sentences. Regarding the second argument, the court has broad discretion in revoking suspended sentences, and this discretion will not be disturbed without showing an abuse thereof. Appellant has not demonstrated any such abuse. **DECISION** The revocation of Appellant's suspended sentences in Oklahoma County District Court Case Nos. CF-2009-228 and CF-2015-8860 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 filing of this decision. **REVOCATION APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE** **APPEARANCES ON APPEAL REVOCATION PROCEEDINGS** **THOMAS HURLEY** **MARVA A. BANKS** Assistant Public Defender Oklahoma County Public Defender's Office 611 County Office Building 320 Robert S. Kerr Oklahoma City, Oklahoma 73102 Counsel for Defendant **KIRK MARTIN** Assistant District Attorney Oklahoma County 320 Robert S. Kerr Suite 505 Oklahoma City, Oklahoma 73102 Counsel for the State **OPINION BY:** LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur **[PDF VERSION AVAILABLE HERE](https://opinions.wirthlawoffice.com/wp-content/uploads/M-2018-335_1734421708.pdf)**

RE 2018-0457

Post author:Staff
Post published:July 11, 2019
Post category:RE

In OCCA case No. RE 2018-0457, Tommy Lee Tucker appealed his conviction for Domestic Assault and Battery After Prior Conviction, Domestic Assault and Battery by Strangulation, and Kidnapping. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences but remanded the case to the District Court to correct inconsistencies in the sentencing documents. One judge dissented.

RE-2018-89

Post author:Staff
Post published:June 27, 2019
Post category:RE

In the case of Brandon Christopher Looney v. The State of Oklahoma, the Court of Criminal Appeals upheld the trial court's decision to revoke Looney's twenty-year suspended sentence based on multiple violations of probation. Looney had pled nolo contendere to assault and battery with a dangerous weapon, leading to a suspended sentence on the condition he comply with certain probation rules. The court reviewed allegations against Looney, including failing to report to his probation officer, changing his residence without notification, associating with convicted felons, failing a drug test, possessing weapons, and being charged with multiple offenses related to drug and firearm possession. At the revocation hearing, evidence was presented detailing these violations, including a deputy witnessing drug use and discovering firearms and drugs in the residence where Looney was staying. Looney argued that the judge erred in denying his demurrer regarding weapon-related allegations since the firearms were not found in his specific bedroom and there was no evidence he was aware of their presence. However, the court explained that as a convicted felon on probation, his residency rules prohibited him from firearms, regardless of awareness. The burden of proof for probation violations is a preponderance of evidence, and the trial judge's discretion to revoke the sentence was upheld. Looney also claimed that the judge did not consider lesser sentencing options and that the revocation was excessive. The court found no evidence that the judge neglected to consider alternatives and noted that Looney had repeatedly ignored probation requirements immediately after being placed on probation. Ultimately, the court denied all of Looney's propositions of error, concluding there were no abuses of discretion or violations of due process. Therefore, the order to revoke his suspended sentence was affirmed.

RE-2018-630

Post author:Staff
Post published:June 20, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CHRISTOPHER CHARLES DOWNUM,** **Appellant,** **v.** **STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-630** **FILED JUN 20 2019** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **HUDSON, JUDGE:** On July 14, 2017, Appellant Downum, represented by counsel, entered a plea of nolo contendere to a charge of Malicious Injury to Property in McIntosh County Case No. CM-2017-317. Downum was sentenced to one (1) year in the McIntosh County jail, all suspended, subject to terms and conditions of probation. On October 18, 2017, the State filed a Motion to Revoke Downum's suspended sentence alleging he committed the new offenses of Public Intoxication and Obstructing An Officer in McIntosh County Case No. CM-2017-457. The District Court of McIntosh County, presided over by the Honorable James D. Bland, held a combined revocation hearing and preliminary hearing on May 31, 2017, and revoked ten (10) days of Downum's suspended sentence in Case No. CM-2017-317. From this Judgment and Sentence, Downum appeals with the following propositions of error: 1. The trial court used the wrong legal standard in revoking Downum's suspended sentence. 2. The evidence was insufficient to show that Downum committed the acts of public intoxication and obstructing an officer. 3. The sentence imposed by the trial court is excessive. The revocation of Downum's suspended sentence is **AFFIRMED**. The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. The Court examines the basis for the factual determination and considers whether the court abused its discretion. Downum agues in Proposition I that Judge Bland used the wrong standard in revoking his suspended sentence by confusing the burden of proof for revoking a suspended sentence with that required for a preliminary hearing. This concern relates to Proposition II, where Downum claims there was insufficient evidence even if the appropriate standard had been applied. However, alleged violations of conditions of a suspended sentence need only be proven by a preponderance of the evidence. The Court finds no evidence in the appeal record supporting Downum's claim that Judge Bland did not apply the correct standard. The record shows competent evidence was presented at the revocation hearing, allowing the court to determine, by a preponderance of the evidence, that Downum violated his probation terms. Consequently, Propositions I and II are denied. In Proposition III, Downum argues that the ten-day revocation is excessive, citing no supporting authority. The Court has established that violation of any condition of probation can justify revocation of a suspended sentence. No abuse of discretion is found in Judge Bland's decision to revoke ten days of Downum's suspended sentence. **DECISION** The order of the District Court of McIntosh County revoking ten (10) days of Appellant's suspended sentence in Case No. CM-2017-317 is **AFFIRMED**. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF MCINTOSH COUNTY** **THE HONORABLE JAMES D. BLAND, DISTRICT JUDGE** **APPEARANCES AT TRIAL** WARREN GOTCHER GOTCHER & BEAVER 323 E. CARL ALBERT PKWY. P.O. BOX 160 MCALESTER, OK 74502 COUNSEL FOR APPELLANT **APPEARANCES ON APPEAL** WARREN GOTCHER GOTCHER & BEAVER 323 E. CARL ALBERT PKWY. P.O. BOX 160 MCALESTER, OK 74502 COUNSEL FOR APPELLANT GREGORY R. STIDHAM ASST. DISTRICT ATTORNEY MCINTOSH COUNTY 110 NORTH FIRST STREET EUFAULA, OK 74432 COUNSEL FOR THE STATE MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA THEODORE M. PEEPER ASST. ATTORNEY GENERAL 313 N.E. 21ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE **OPINION BY:** HUDSON, J. **LEWIS, P.J.: CONCUR** **KUEHN, V.P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **ROWLAND, J.: CONCUR** **[END OF DOCUMENT]** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-630_1734428440.pdf)

RE-2018-435

Post author:Staff
Post published:June 20, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOSE FIGUEROA MESTA,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2018-435** **FILED** IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JUN 20 2019 JOHN D. HADDEN CLERK **SUMMARY OPINION** LUMPKIN, JUDGE: Appellant appeals from the revocation of his suspended sentence in Texas County District Court Case No. CF-2015-1. On March 4, 2016, Appellant entered a plea of no contest to Possession of a Controlled Dangerous Substance Within 1,000 Feet of a Park, in violation of 63 O.S.Supp.2012, § 2-402(C)(1). The Honorable Jon Parsley, District Judge, convicted Appellant and sentenced him to ten years imprisonment, with all but the first eighty days suspended. On February 27, 2018, the State filed an Amended Application to Revoke Suspended Sentence alleging Appellant failed to submit probation reports; failed to report his arrest for public intoxication; moved back into Oklahoma without reporting it to the district court; and committed new crimes of Possession of a Controlled Drug, Marijuana, Within 2000 Feet of a School or Park, With Intent to Distribute (Count 1), and Possession of CDS Without a Tax Stamp Affixed (Count 2) as alleged in Texas County District Court Case No. CF-2018-58. Following a hearing, Judge Parsley revoked Appellant's remaining suspended sentence in full. **Proposition I:** Appellant alleges the trial court erred in assessing him attorney fees of $500, which he claims exceeds the amount allowed by statute. **Proposition II:** Appellant argues he cannot be assessed the costs of his incarceration because he is mentally ill. These claims are outside the scope of a revocation appeal. The consequence of judicial revocation is to execute a penalty previously imposed in the judgment and sentence. The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. As noted on numerous occasions, arguments regarding attorney fees and incarceration costs are administrative and not properly presented as part of the appeal of an order revoking a suspended sentence. Thus, we deny Propositions I and II. **Proposition III:** Appellant objects to the inclusion of post-imprisonment supervision in the revocation order. The State concedes this point, arguing the issue is moot because Judge Parsley entered an amended revocation order on January 17, 2019, deleting post-imprisonment supervision from the revocation order. We agree that this proposition is moot. The decision to revoke a suspended sentence in whole or part is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Appellant has not established that Judge Parsley abused his discretion. **DECISION** The revocation of Appellant's suspended sentence in Texas County District Court Case No. CF-2015-1 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon the filing of this decision. **APPEARANCES** AT REVOCATION **VONDA WILKINS** P.O. BOX 1486 GUYMON, OK 73492 COUNSEL FOR DEFENDANT ON APPEAL **LISBETH McCARTY** P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **TAOS SMITH** ASST. DISTRICT ATTORNEY 319 N. MAIN GUYMON, OK 73942 COUNSEL FOR STATE **MIKE HUNTER** OKLA. ATTORNEY GENERAL KEELEY MILLER ASST. ATTORNEY GENERAL 313 N.E. 21st ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE **OPINION BY:** LUMPKIN, J. **LEWIS, P.J.:** Concur **KUEHN, V.P.J.:** Concur **HUDSON, J:** Concur **ROWLAND, J:** Concur [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-435_1734691413.pdf)

RE 2018-0397

Post author:Staff
Post published:June 20, 2019
Post category:RE

In OCCA case No. RE 2018-0397, Wesley Scot Kilpatrick appealed his conviction for robbery in the second degree. In an unpublished decision, the court decided to affirm the revocation of his suspended sentence. One judge dissented. Wesley Scot Kilpatrick had pleaded guilty to robbery in the second degree, and a more serious charge of burglary in the first degree was dropped. He received a seven-year suspended sentence, which means he would not go to prison right away if he followed certain rules. He also had to pay a fine and court costs. Later, the state said Kilpatrick did not follow the rules of his suspended sentence. They claimed he failed to pay his costs and restitution, got into trouble with the police, and committed another crime. Because of this, a court hearing was held to decide if his suspended sentence should be revoked. At the hearing, the judge decided to revoke his sentence completely, meaning Kilpatrick would have to serve the full seven years in prison. Kilpatrick disagreed with this decision and appealed, arguing that the judge made a mistake in revoking his sentence. However, the court found that the judge did not make an error. They believed the judge had the right to make that decision based on the facts presented. The court defined an abuse of discretion as a decision that is clearly wrong and not based on logic or evidence. Since Kilpatrick did not show that the judge was wrong, the court affirmed the decision to revoke his suspended sentence. In the end, Kilpatrick would have to serve the full time in prison for his robbery conviction.

RE-2018-234

Post author:Staff
Post published:May 30, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JERRY WAYNE LANDS, NOT FOR PUBLICATION** **Appellant,** **v.** **STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-234** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MAY 30, 2019** **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **KUEHN, VICE-PRESIDING JUDGE:** On March 7, 2008, Appellant Jerry Wayne Lands, represented by counsel, entered a negotiated plea of no contest to the charge of Possession of a Controlled Dangerous Substance (Methamphetamine) After Former Conviction of a Felony in Pittsburg County Case No. CF-2007-420. He was sentenced to ten (10) years, all suspended, subject to terms and conditions of probation. Between May 2008 and March 2009, at least five (5) applications to revoke his probation were filed. On December 5, 2008, Lands was charged with additional offenses and ultimately, on April 13, 2009, the district court revoked five years of his suspended sentence in Case No. CF-2007-420. Subsequent to Lands' guilty plea in Case No. CF-2008-526, where he received a ten-year sentence with five years suspended, the State filed multiple revocation applications in both cases. On October 26, 2017, the State filed another Application to Revoke Lands' suspended sentences, which culminated in a full revocation during a hearing held on July 11, 2017. **PROPOSITIONS OF ERROR:** 1. Lands contends that the trial judge abused his discretion by refusing to grant a continuance for him to hire counsel. 2. He argues there was no valid waiver of the twenty-day requirement, resulting in loss of jurisdiction to revoke his sentence. 3. He claims the evidence was insufficient to support the allegations in the revocation motions. 4. He asserts the revocation of his entire remaining sentences was excessive. **DECISION:** 1. **Continuance Denial:** The court found no abuse of discretion by Judge Hogan in denying the requested continuance, which was sought on the day of the hearing without prior notification of intent to hire private counsel. 2. **Waiver of the 20-Day Rule:** The waiver was valid despite Lands' claim that it was made without the representation of counsel, as the appellate record indicated he knowingly waived his right to a timely hearing. 3. **Sufficiency of Evidence:** The court ruled there was sufficient evidence to warrant revocation of Lands' suspended sentences. Violations of probation can be established by a preponderance of evidence, and the record supported the trial court's findings. 4. **Excessiveness of Revocation:** The court concluded that revocation of Lands' entire suspended sentences was not excessive, given his extensive history of probation violations. **RULING:** The order of the District Court of Pittsburg County revoking Appellant's suspended sentences is **AFFIRMED**. **COUNSEL:** *Appellant:* Wesley J. Cherry *Appellee:* Max E. Moss, Jr., Assistant District Attorney; Mike Hunter, Attorney General of Oklahoma **OPINION BY:** KUEHN, V.P.J. *LEWIS, P.J.: CONCUR* *LUMPKIN, J.: CONCUR IN RESULTS* *HUDSON, J.: CONCUR* *ROWLAND, J.: CONCUR* **MANDATE ORDERED.** For a complete view and reference, [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-234_1734698244.pdf).

RE-2018-232

Post author:Staff
Post published:May 30, 2019
Post category:RE

**Court of Criminal Appeals of the State of Oklahoma** **Case No. RE-2018-232** **Summary Opinion** **Appellant:** Courtney Quillen **Appellee:** The State of Oklahoma **Decided on:** May 30, 2019 **Judge:** Kuehn, Vice Presiding Judge **Background:** Courtney Quillen appealed the revocation of her concurrent seven-year suspended sentences issued by Judge Gregory D. Pollard. She had been convicted in two cases for several counts of Uttering a Forged Instrument. **Key Dates:** - **August 25, 2016:** Quillen entered nolo contendere pleas in two cases. - **March 3, 2017:** The State filed a motion to revoke her suspended sentences for failing to pay fees. - **February 26, 2018:** A revocation hearing was held, leading to the decision to revoke her sentences. **Charges and Allegations:** The State alleged that Quillen committed additional crimes (robbery and conspiracy) while on probation, which constituted violations of her probation terms. **Decision:** The court concluded that: - The alleged procedural errors regarding the twenty-day rule did not affect the court's ability to revoke the sentences from Case No. CF-2015-817 since it had jurisdiction over that case. - The evidence presented established that Quillen had participated in a robbery, thus justifying the revocation of her suspended sentences. **Propositions of Error:** 1. **Jurisdiction challenge** - Denied; revocation in Case No. CF-2015-817 upheld. 2. **Validity of waiver regarding twenty-day rule** - Moot. 3. **Insufficient evidence for robbery** - Denied; evidence supported the involvement in robbery and conspiracy. 4. **Insufficient evidence for conspiracy** - Denied; Quillen was shown to have conspired with co-defendants. 5. **Ineffective assistance of counsel** - Moot due to affirming the revocation based on other factors. 6. **Abuse of discretion in revocation** - Denied; trial court acted within its discretion. **Final Order:** The Court affirmed the decision of the District Court of Pontotoc County to revoke Quillen’s concurrent suspended sentences. **Mandate Issued.** [Full opinion and details available here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-232_1734699237.pdf).

RE 2018-0118

Post author:Staff
Post published:May 30, 2019
Post category:RE

In OCCA case No. RE 2018-0118, Samuel Keith Carolina appealed his conviction for violating the terms of his suspended sentence. In an unpublished decision, the court decided to affirm the order revoking his suspended sentence. One judge dissented. Samuel Keith Carolina had originally been sentenced to twenty years for burglary, but the last ten years were suspended while he followed certain rules. However, in December 2017, the state accused him of committing several new crimes, including assault and battery with a deadly weapon and shooting with intent to kill. Some of these claims were removed before the revocation hearing. At the hearing held on January 30, 2018, the judge found enough evidence to support the state's claims, specifically the first allegation. Carolina argued that the evidence was not strong enough to prove he broke the terms of his sentence. The court explained that to revoke a suspended sentence, the evidence just needs to show that it's more likely true than not, meaning the evidence has to be convincing. Ultimately, because they found that there was enough evidence to support at least one of the violations, the court decided to uphold the revocation of Carolina's suspended sentence.

RE 2018-0118

Post author:Staff
Post published:May 30, 2019
Post category:RE

In OCCA case No. RE 2018-0118, Samuel Keith Carolina appealed his conviction for the revocation of his suspended sentence. In an unpublished decision, the court decided to affirm the order of the District Court revoking his suspended sentence. One justice dissented. Samuel entered a guilty plea to burglary and was given a suspended sentence, which meant he would not serve his full sentence unless he broke the rules. However, after some time, the State accused him of committing new crimes, which led to the revocation hearing. The court found enough evidence to support the claims against him and revoked his suspended sentence. On appeal, Samuel argued that the evidence presented was not sufficient to prove he had committed the new crimes. However, the court explained that for revoking a suspended sentence, the state only needs to show that it is more likely than not (a preponderance of the evidence) that the person violated the terms. Since the court found that the state met this burden, they confirmed the decision to revoke Samuel's sentence.

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-2018-249

Post author:Staff
Post published:May 16, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CAMERON CLEO GIVENS,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-249** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **MAY 16, 2019** **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **LUMPKIN, JUDGE:** Appellant Cameron Cleo Givens appeals from the revocation of his suspended sentence in Oklahoma County District Court Case No. CF-2003-2422, overseen by Judge Glenn M. Jones. On February 2, 2005, Appellant entered a plea of guilty to multiple counts, including four counts of Rape in the Second Degree and three counts of Forcible Oral Sodomy. He was sentenced to prison terms, with most of the sentences suspended, leading to an effective agreement of concurrent sentences. On May 2, 2017, the State filed an Amended Application to Revoke Suspended Sentence, alleging several violations, including failure to report to his probation officer, non-compliance with the Sex Offender Registration Act, and new crimes committed in two other cases. After the revocation hearing, Judge Jones revoked Appellant's suspended sentence in full. **Proposition I:** Appellant contends he was denied adequate opportunity to request discovery regarding Officer O'Connor's testimony. However, he was given notice about Officer O'Connor's potential testimony and did not establish a right to further discovery. The proposition is deemed meritless. **Proposition II:** Appellant asserts that it was improper to admit and rely on the preliminary hearing transcript from Case No. CF-2016-9187 for the revocation. The standards of due process allow for such admission without requiring proof of a witness's unavailability when the defendant had the chance to confront the witness in prior hearings. His objections are similarly without merit, as the case law indicates that competent evidence supported the revocation independent of the contested transcript. **Conclusion:** A suspended sentence is a grace extended by the court. The State need only prove one violation to justify a full revocation of a suspended sentence. In this case, the trial court's decision was within its discretion and supported by competent evidence. **Decision:** The revocation of Appellant's suspended sentences in Oklahoma County District Court Case No. CF-2003-2422 is **AFFIRMED**. ADDITIONAL NOTES: The opinion was filed by Judge Lumpkin, with concurrence from Presiding Judge Lewis, Vice-Presiding Judge Kuehn, and Judges Hudson and Rowland. **Mandate ordered upon filing.** **Counsel for Appellant:** Katie Samples and Johanna F. Roberts, Assistant Public Defenders, Oklahoma City, OK. **Counsel for Appellee:** Jessica Foster, Assistant District Attorney, and Mike Hunter, Attorney General of Oklahoma, Oklahoma City, OK. **For complete judicial proceedings, refer to the downloadable PDF.** [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-249_1734697863.pdf) --- *This document summarizes the judicial opinion concerning the revocation of Cameron Cleo Givens' suspended sentences following probation violations and provides insights on the legal rationale behind the court's decision.*

RE-2018-208

Post author:Staff
Post published:May 16, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DESMOND ZHUMONSHA SMITH,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2018-208** **Summary Opinion** **FILED MAY 16, 2019** **JOHN D. HADDEN, CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant Desmond Zhumonsha Smith appeals the revocation of his suspended sentence from the Garvin County District Court, Case No. CF-2015-498, presided over by the Honorable Leah Edwards. On February 26, 2016, Smith entered a plea of nolo contendere to charges of Possession of a Controlled Dangerous Substance and Falsely Personate Another to Create Liability. He was subsequently sentenced to twenty years imprisonment for each count. In his first proposition of error, Smith contends that the State failed to provide sufficient evidence to support the claim that he violated the conditions of his probation by engaging in new criminal behavior, specifically Unauthorized Use of a Motor Vehicle and Placing Bodily Fluid on a Government Employee. Upon review, this assertion lacks merit. The standard applicable in revocation hearings is a preponderance of the evidence, which requires the State to demonstrate that it is more likely than not that the violations occurred (Tilden v. State, 2013 OK CR 10). Testimony from Officer Cooper and Sheriff Rhodes sufficiently established the necessary proof of Smith's involvement in the new crimes. In his second proposition, Smith argues that the revocation of ten years of his twenty-year suspended sentence is excessive and asserts that it should be modified. The law stipulates that proving just one violation of probation is adequate for revocation (Tilden, 2013 OK CR 10). In this case, the State demonstrated multiple violations, including new charges from two counties. Furthermore, Judge Edwards did not fully revoke Smith's remaining sentence, affirming that such decisions fall under the trial court's discretion, which will not be overturned unless an abuse of that discretion is clearly shown (Jones v. State, 1988 OK CR 20). **DECISION:** The revocation of Desmond Zhumonsha Smith’s suspended sentence in Garvin County District Court Case No. CF-2015-498 is **AFFIRMED**. The mandate is ordered to be issued upon the filing of this decision, pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals. **APPEARANCES:** **For Defendant:** Arlan Bullard 110 N. Willow St., Ste. B Pauls Valley, OK 73075 **For Appellant:** Kristi Christopher P.O. Box 926 Norman, OK 73070 **For State:** Laura A. McClain Asst. District Attorney 201 W. Grant St., Room 15 Pauls Valley, OK 73075 Mike Hunter Attorney General of Oklahoma Theodore M. Peeper Asst. Attorney General 313 N.E. 21st Street Oklahoma City, OK 73105 **OPINION BY:** Kuehn, V.P.J. **CONCUR:** Lewis, P.J., Lumpkin, J., Hudson, J. **CONCUR IN RESULTS:** Rowland, J. [**Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-208_1734702735.pdf)

RE-2017-1128

Post author:Staff
Post published:May 16, 2019
Post category:RE

**OKLAHOMA COURT OF CRIMINAL APPEALS** **Case No. RE-2017-1128** **Elizabeth Kay Sears, Appellant,** **v.** **The State of Oklahoma, Appellee.** **FILED: MAY 16, 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** **¶1** This matter is an appeal from the revocation of Appellant Elizabeth Kay Sears' suspended sentence in Logan County District Court Case No. CF-2013-295, presided over by the Honorable Louis A. Duel, Associate District Judge. **¶2** On January 14, 2014, Appellant entered a plea of guilty to two counts of Child Neglect (21 O.S.2011, § 843.5(C)) and one count of Harboring a Fugitive (21 O.S.2011, § 440). She was sentenced to eight years imprisonment for each count, with the first three years of each sentence to be served, while the remaining years were suspended. On October 3, 2014, the District Judge modified Appellant's sentence to five years imprisonment for each count, all suspended, to be served concurrently. **¶3** The State filed a 2nd Amended Motion to Revoke Suspended Sentence on December 29, 2016, citing several probation violations, including new charges of Second Degree Burglary and Possession of Paraphernalia, arising from Logan County District Court Case No. CF-2016-404. **¶4** Appellant was arraigned on January 26, 2017, entered a plea of not guilty, and subsequently requested a continuance for her revocation hearing, which was ultimately heard on October 25, 2017. The court revoked Appellant's five-year suspended sentences in full after considering the evidence and arguments presented. **¶5** In her first proposition of error, Appellant contends that the revocation order should be reversed and dismissed. She argues that there was no valid waiver of the required twenty-day hearing period following her plea of not guilty, as stipulated in 22 O.S.Supp.2016, § 991b(A). She maintains that the record does not sufficiently show she was informed of this requirement; thus, the motion to revoke should be dismissed. **¶6** However, Appellant's request for a continuance of her revocation hearing undermines her argument. The legal precedent established in *Grimes v. State*, 2011 OK CR 16, clearly states that a defendant who acquiesces in or seeks a continuance cannot later claim entitlement to relief based on noncompliance with the twenty-day requirement. Moreover, Appellant does not claim ineffective assistance of counsel regarding this issue, and it is presumed that her attorney acted competently. **¶7** In her second proposition of error, Appellant seeks clarification of the trial court's revocation order, specifically, concerning the credit for time served. Although the State acknowledges a potential misstatement by the trial court about the duration of time credited, Appellant did not raise this issue for correction in the trial court before bringing it to this Court. Typically, we do not intervene without a preliminary determination by the District Court. **¶8** However, we will modify the procedural requirement that previously necessitated an appellant to file a separate motion to address this issue. In the absence of clear clerical error, we remand this matter back to the District Court of Logan County to allow Appellant to seek an order nunc pro tunc regarding the time served, as outlined in her second proposition of error. **DECISION** The revocation of Appellant's suspended sentence in Logan County District Court Case No. CF-2013-295 is AFFIRMED. This case is REMANDED for proceedings consistent with this opinion. A mandate will be issued following the filing of this decision. **APPEARANCES** **Counsel for Defendant:** Lisbeth L. McCarty, Oklahoma City, OK **Counsel for Appellant:** Lane Fitz, Norman, OK **Counsel for State:** Emily Kirkpatrick, Asst. District Attorney, Guthrie, OK **Counsel for Appellee:** Mike Hunter, Oklahoma Attorney General, Oklahoma City, OK **OPINION BY:** KUEHN, V.P.J. **CONCUR:** LEWIS, P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2017-1128_1734708375.pdf)

RE-2018-342

Post author:Staff
Post published:May 9, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOSHUA ERIC ARMSTRONG,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. No. RE-2018-342 **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **MAY - 9 2019** **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **HUDSON, JUDGE:** Appellant Joshua Eric Armstrong appeals from the revocation of his suspended sentence from the Woodward County District Court Case No. CF-2017-5, overseen by the Honorable David A. Work, Associate District Judge. ### Background On March 31, 2017, Appellant pled no contest to the charge of Possession/Concealing Stolen Property, leading to a five-year sentence, with all but the first two months suspended. On March 8, 2018, the State sought to revoke Appellant's suspended sentence on various grounds: failure to report, providing a false address, testing positive for methamphetamine, failing to pay court costs, prosecution reimbursement fees, restitution, and committing Grand Larceny (Case No. CF-2018-11). At the March 27, 2018, hearing, Judge Work revoked four years of Armstrong's suspended sentence. ### Appellant's Claims 1. **Proposition I**: Judge Work’s pronouncements were insufficient regarding the alleged probation violations. - **Finding**: No statutory requirement exists for detailed findings at revocation. The petition sufficiently informed Appellant of the grounds. 2. **Propositions II, III, and V**: The State did not prove certain alleged violations. - **Finding**: The State proved other violations; only one is necessary for revocation. 3. **Proposition IV**: Insufficient evidence to prove a false address. - **Finding**: Evidence indicated Appellant likely provided a false address. 4. **Proposition VI**: Improper revocation for unemployment not alleged in the petition. - **Finding**: Appellant failed to object during the hearing, waiving the issue for all but plain error review, which he did not establish. 5. **Proposition VII**: The trial court abused discretion in revoking part of the suspended sentence instead of requiring treatment. - **Finding**: Evidence supported the violations alleged in the petition, and there was no abuse of discretion. ### Decision The revocation of Appellant's suspended sentence in Woodward County District Court Case No. CF-2017-5 is **AFFIRMED**. Mandate to be issued upon filing of this decision. **Appearances**: **Counsel for Defendant**: Ryan D. Recker **Counsel for Appellant**: Sarah MacNiven **Counsel for the State**: Kate Loughlin, Mike Hunter, Keeley L. Miller **OPINION BY**: HUDSON, J. **LEWIS, P.J.**: CONCUR **KUEHN, V.P.J.**: CONCUR **LUMPKIN, J.**: CONCUR **ROWLAND, J.**: CONCUR [Download PDF of Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-342_1734697264.pdf)

RE-2018-644

Post author:Staff
Post published:April 25, 2019
Post category:RE

**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.

RE-2017-113

Post author:Staff
Post published:April 25, 2019
Post category:RE

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.**

RE-2018-128

Post author:Staff
Post published:April 18, 2019
Post category:RE

In the Court of Criminal Appeals of the State of Oklahoma, Milton Roger Hornsby appealed the revocation of his suspended sentence from the McIntosh County District Court, overseen by Judge James D. Bland. This appeal arose from convictions in two cases, CF-2012-45 and CF-2012-60, covering multiple charges including possession of a firearm after conviction and assault with a dangerous weapon. Hornsby initially received a twenty-year suspended sentence for one charge and six-month suspended sentences for others, all to be served concurrently. The State's motion to revoke the suspended sentences, filed on September 19, 2016, was due to an alleged new crime involving assault and battery with a dangerous weapon. Following a hearing on December 29, 2016, Judge Bland revoked ten years of Hornsby's suspended sentences. Hornsby raised several legal arguments on appeal: 1. **Burden of Proof**: He argued that Judge Bland imposed a lower burden of proof than required. However, the court affirmed that Judge Bland properly articulated the standard during the hearing, which was that the State needed to show it was more likely than not that Hornsby violated his probation. 2. **Suppressed Evidence**: Hornsby contended that evidence pertaining to the use of a knife, previously suppressed in a related case, was improperly considered at the revocation hearing. The court noted that Hornsby did not object during the hearing and thus waived his right to raise this issue on appeal apart from claiming plain error, which he failed to establish. 3. **Intent to Harm**: Hornsby claimed there was insufficient evidence to prove he intended to inflict bodily harm. The court stated that the evidence presented was sufficient to suggest that it was more likely than not that Hornsby had such intent. 4. **Cumulative Errors**: Lastly, Hornsby argued that the accumulation of errors deprived him of a fair hearing. The court found no merit in this argument, as each proposition raised was without merit. The Court concluded that there was no abuse of discretion in Judge Bland's decision to revoke the suspended sentence, affirming the revocation. The mandate was ordered to issue following the filing of the decision.

RE-2017-484

Post author:Staff
Post published:April 4, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JERMAINE THRASH,** Appellant, **VS** **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2017-484** **Filed April 4, 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Jermaine Thrash, appeals from the revocation of his ten-year suspended sentence in Case No. CF-2005-4341 in the District Court of Oklahoma County, by the Honorable Michelle D. McElwee, District Judge. On October 11, 2005, Appellant entered a plea of guilty to Count 1 - Rape in the First Degree; and Count 2 - Forcible Oral Sodomy. He was sentenced to fifteen years for each count with the first five years to be served and the remaining ten years suspended, with the sentences running concurrently. On September 29, 2015, the State filed an application to revoke Appellant's suspended sentence, alleging multiple violations of probation: testing positive for illegal drugs, failure to pay supervision fees, failure to participate in a sex offender treatment program, and possession of pornographic material. Appellant waived the twenty-day hearing requirement, and the hearings were subsequently continued several times to allow him to comply with probation requirements. The revocation hearing took place on May 1, 2017, before Judge McElwee. The State's witness, Megan Hicks, Appellant's probation officer, testified about Appellant's consistent failures to complete his probation requirements. She noted his non-participation in court-ordered sex offender treatment and multiple positive drug tests, including methamphetamines and cocaine, spanning over several months between 2015 and 2017. Notably, Appellant admitted to using drugs even shortly before the hearing. Appellant offered mitigation, arguing that he used drugs to cope with his circumstances as a convicted felon and sex offender. However, the court found that his continued drug use and failure to adhere to his probation terms constituted substantial violations. On appeal, Appellant asserts that his violations were merely technical and therefore do not justify the full revocation of his sentence. However, the ruling emphasizes that continued drug use while on probation is not merely a technical violation. The court noted that Appellant had numerous opportunities to comply with the probation requirements, and the trial judge's discretion in revoking the suspended sentence was upheld. **DECISION:** The order of the District Court of Oklahoma County revoking Appellant's ten-year suspended sentence in Case No. CF-2005-4341 is AFFIRMED. The MANDATE is ORDERED issued upon the filing of this decision. **APPEARANCES:** **FOR APPELLANT:** Kenda H. McIntosh Andrea Digilio Miller Oklahoma County Public Defender **FOR THE STATE:** Merydith Easter Mike Hunter Oklahoma County District Attorney Jennifer Miller Assistant Attorney General **OPINION BY:** KUEHN, V.P.J. **CONCUR:** LEWIS, P.J., LUMPKIN, J., HUDSON, J., ROWLAND, J. [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2017-484_1734711166.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.