Violations of Probation

RE-2018-1006

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**Court of Criminal Appeals of the State of Oklahoma** **Case No. RE-2018-1006** **Jose Adolfo Rios, Appellant,** **vs.** **The State of Oklahoma, Appellee.** **Summary Opinion** **Judge Lumpkin:** Appellant, Jose Adolfo Rios, appeals from the revocation in full of his concurrent ten-year suspended sentences in Case No. CF-2006-6132. The Honorable Ray C. Elliott, District Judge, ruled on this matter. On April 4, 2008, Appellant entered a guilty plea to two counts of Rape in the First Degree and two counts of Indecent or Lewd Acts With a Child Under Sixteen, resulting in sentences of twenty-two years for the rape counts (with the first twelve years suspended) and twenty years for the lewd acts counts (with the first ten years suspended), all to run concurrently. On July 25, 2018, the State filed an Application to Revoke Suspended Sentence, asserting multiple violations of probation, including failing to report, change of address, pay supervision fees, attend mandated treatment, and committing a new crime—Domestic Assault and Battery With a Dangerous Weapon. During the revocation hearing before Judge Elliott, substantial evidence was presented regarding Appellant's violation of probation terms, including testimonies from Appellant’s probation officer and other evidence illustrating Appellant's failure to comply with treatment and reporting requirements. Appellant testified about personal struggles following a crime in which he was a victim, stating he had fallen victim to substance abuse and homelessness. After reviewing the evidence, Judge Elliott found sufficient basis to revoke the suspended sentences, having established by a preponderance of the evidence that Appellant had committed multiple violations, including failing to report and failing to attend treatment. **Proposition of Error:** Appellant argues that the trial court abused its discretion in fully revoking his sentence, asserting that Judge Elliott did not adequately consider alternatives to full revocation. **Analysis:** The decision to revoke a suspended sentence is within the discretion of the trial court and will not be overturned without evidence of abuse of that discretion. Here, Judge Elliott had unrefuted evidence of Appellant's violations. The record demonstrates that Appellant acknowledged his failures and did not meet the terms of probation. While Appellant claimed that less severe measures should have been considered, the applicable statutes do not mandate such considerations during revocation proceedings. As such, Appellant has not demonstrated that the trial court erred or abused its discretion in revoking the sentences in full. **Decision:** The order of the District Court of Oklahoma County revoking Appellant's concurrent ten-year suspended sentences is AFFIRMED. **Appearances:** **For Appellant:** Ben Munda, Assistant Public Defender Hallie Elizabeth Bovos, Assistant Public Defender 320 Robert S. Kerr, Suite 400 Oklahoma City, OK 73102 **For the State:** Suzanne Lavenue, Assistant District Attorney Mike Hunter, Attorney General of Oklahoma Tessa L. Henry, Assistant Attorney General 320 Robert S. Kerr, Suite 505 Oklahoma City, OK 73102 **Opinion By:** Lumpkin, J. **Concurred by:** Lewis, P.J.; Kuehn, V.P.J.; Hudson, J.; Rowland, J. MANDATE is ORDERED issued upon the filing of this decision. [Download Full Opinion PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-1006_1734358375.pdf)

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RE-2018-630

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**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)

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RE-2017-1287

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

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