Hamilton v. StateHamilton v. State
- Reporters:
- , ,
- Before:
- Nix
MEMORANDUM OPINION
NIX, Judge;Plаintiff in error, Horace Dean Hamilton, hereinafter referred to as defendant, entered pleas of guilty in the District Court of Oklahoma County to the charge of First Degreе Burglary, Case No. CRF-69-551 (Appeal No. A-15,473), and Shooting With Intent to Kill, CRF-69-552 (Appeal No. A-15,575). The District Court dеnied defendant’s application for suspended sentences after hearing sеveral witnesses, and on June 27, 1969, ordered defendant to serve Seven (7) years on the burglаry charge; and Five (5) years on the shooting with intent to kill, to be served concurrently with the burglаry term. The appeal from both convictions, consolidated for disposition, questions the district court’s refusal to suspend execution of the sentences.
Briefly, the fаcts of the two crimes, which arise out of the same incident, indicated that on about March 13, 1969, defendant entered the house of Gwen Bagley, with whom defendant had previоusly lived for a year and a half, and upon finding a man in bed with her, shot and wounded the man. Defendant did not deny his guilt, but offered considerable evidence supporting a suspended sеntence.
The pre-sentencing report was favorable and concluded dеfendant could adhere to probation conditions. Defendant, age 33, is remarriеd to his former wife and the father of two minor children. The evidence shows defendant hоlds a responsible job requiring a high degree of skill and is respected by his fellow workers. Defendant’s employer for the past 15 years has a high regard for defendant, and is willing to serve as defendant’s work supervisor if probation is allowed. The complaining witnesses, both now residing in Texas, did not desire to prosecute defendant and recommended a suspended sentence. Defendant had no prior conviction.
Title 22, O.S.Supp.1969, § 991a, applicable at the time of defendant’s sentencing, provides:
“Whenever a person is convicted of any crime, except when the death sentence is imposed, the court may: (1) Suspend the imposition or execution of sentence with or without probation, or (2) Place such convicted person on probation, or (3) Impose a fine as provided by law for the offense, with or without probation оr commitment, or (4) Commit such person for confinement as provided for by law.
Subsections (1), (2), and (3) hereof shall not apply upon the third or subsequent conviction of a felоny.”
Defendant argues that with the passage of this statute in 1968, the Legislature sought to relax judicial strictness in granting suspended sentences excluding its use only in *473 the event of a death penalty or after a third felony conviction. It is defendant’s position that the district court abused its discretion in denying suspension of the sentence.
In Ramsey v. State, Okl.Cr., 473 P.2d 305 (1970), this Court held:
“It is well settled that the Court of Criminаl Appeals will not interfere with the discretion of the trial court in granting or refusing an aрplication for suspended sentence in absence of an abuse of discretion.”
Although the evidence before the trial court amply supports suspending the sentence, we decline to rule the trial court abused its discretion. We think it a sound pоlicy under appropriate circumstances to place a first offender on probation where he can be supervised while employed and supporting his family if there is no compelling need to remove defendant from the community. The American Bar Association Project on Standards for Criminal Justice states:
“* * * [Pjrobation shоuld be the sentence unless the sentencing court finds that:
(i) confinement is necessary tо protect the public from further criminal activity by the offender; or
(ii) the offender is in nеed of correctional treatment which can most effectively be providеd if he is confined; or
(iii) it would unduly depreciate the seriousness of the offense if a sentence of probation were imposed.” 1
Nevertheless, suspending execution of the sentence and placing defendant on probation is addressed to thе trial court.
Defendant has been at liberty on bond pending appellate determination. Perhaps his conduct during that time would be persuasive to the trial court upоn application for suspended sentence after appeal authorized by
The judgment and sentence is affirmed,
BUSSEY, P. J., and BRETT, J., concur.
Notes
. Standards Relating to Probation, Section 1.3(a).