The States of Oklahoma v. Damien Lee Dominguez

Arapaho, Oklahoma, criminal defense lawyer represented the Defendant accused of violating conditions of probation.

Appellant pled guilty to Domestic Assault and Battery by Strangulation, in violation of 21 O.S.Supp.2014, § 644(J), and was sentenced to a three year deferred sentence. On May 24, 2019, the State filed an Application to Accelerate Deferred Judgment alleging Appellant violated the terms and conditions of his probation by failing to pay probation fees, to complete the Batterer's Intervention Program, to report as directed, and to appear for urinalysis testing. On December 12, 2019, Appellant entered a plea of guilty to the State's Application to Accelerate Deferred Judgment and was sentenced to three years incarceration with all suspended except one weekend in county jail. On November 30, 2020, the State filed an Application to Revoke Suspended Sentence alleging Appellant violated the terms and conditions of his probation by failing to complete the Batterer's Intervention Program and to pay DA supervision fees. Following a revocation hearing on January 19, 2023, Judge Dirickson revoked the remaining two years and three hundred sixty-three days of Appellant's suspended sentence in full.
"A suspended sentence is a matter of grace." Demry v. State, 1999 OK CR 31, ¶ 12, 986 P.2d 1145, 1147. As such, the State must only prove one violation of probation in order to revoke Appellant's suspended sentence in full. Tilden v. State, 2013 OK CR 10, ¶ 10, 306 P.3d 554, 557 (citing McQueen v. State, 1987 OK CR 162, ¶ 2, 740 P.2d 744, 745). The decision to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565. An "abuse of discretion" is a clearly erroneous conclusion and judgment, one clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

In his sole proposition, Appellant argues the trial court abused its discretion by revoking Appellant's suspended sentence in full based on "technical violations" and maintains the revocation order should be modified. At the revocation hearing the trial court determined Appellant failed to complete the Batterer's Intervention Program (BIP) and failed to pay DA supervision fees. The State must only show by a preponderance of the evidence that a violation has occurred to revoke a suspended sentence. See Tilden, 2013 OK CR 10, ¶ 5, 306 P.3d at 556.

Appellant argues that it was an abuse of discretion for the trial court to revoke his suspended sentence in full since this was his first revocation, and the violations were technical.

There are two statutes at issue in this case. Section 991b of Title 22 is a general statute which provides for suspension of sentences and revocation of suspended sentences for probation violations. See 22 O.S.Supp.2019, § 991b(A). Section 991b(B) limits the amount of a suspended sentence which may be revoked based upon a technical violation. Section 991b(C) defines non-technical violations of rules of probation. Any violation not set out in this section is a technical violation and deserves a lesser revocation, i.e., not exceeding six months for a first revocation and five years for a second or subsequent revocation. Id., at § 991b(B).

It is a classic rule of statutory construction that statutes are to be construed to determine, if possible, the intent of the Legislature, Ritchie v. Raines, 374 P.2d 772, 775 (Okl.Cr.App.1962), reconciling provisions, rendering them consistent and giving intelligent effect to each. State v. Ramsey, 868 P.2d 709, 711 (Okl.Cr.App.1993). When there is a conflict between various statutes applying to the same situation, the more specific of the two governs. Stiles v. State, 829 P.2d 984, 989 (Okl.Cr.App.1992); Bowman v. State, 789 P.2d 631, 632 (Okl.Cr.App.1990). This is so even if the general statute was enacted later than the specific one. State v. Woodward, 737 P.2d 569, 570--71 (Okl.Cr.App.1987).

The revocation of Appellant's suspended sentence in Custer County District Court Case No. CF-2018-122 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2024), the MANDATE is ORDERED issued upon the filing of this decision.