Stephen Charles Swanson, Jr. v The State Of Oklahoma

F-2016-1181

Filed: Dec. 14, 2017

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Stephen Charles Swanson, Jr. appealed his conviction for violating the rules of his suspended sentence. Conviction and sentence were affirmed, meaning he had to serve his full sentence because he broke the rules of his probation. Judge Kuehn dissented.

Decision

The revocation of Appellant's suspended sentence in Ottawa County District Court Case No. CF-2009-193 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was the revocation of Appellant's suspended sentence in full excessive?
• Did the trial court abuse its discretion in revoking the suspended sentence?

Findings

• The court did not err in revoking Appellant's suspended sentence.
• The decision to revoke Appellant's suspended sentence is affirmed.
• Appellant has not shown an abuse of discretion.

F-2016-1181

Dec. 14, 2017

Stephen Charles Swanson, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE:

Appellant, Stephen Charles Swanson, Jr., pled guilty February 23, 2010, in Ottawa County District Court Case No. CF-2009-193, to Count 1 – Placing Body Fluids on Police Officer, After Former Conviction of a Felony; Count 2 – Assault, a misdemeanor; and Count 3 – Public Intoxication, a misdemeanor. He was sentenced on Count 1 to twenty years, suspended with all but the first 30 days to be served in the Ottawa County Jail, with rules and conditions of probation and with credit for time served. He was also fined $1,000.00 on Count 1, $250.00 on Count 2 and $50.00 on Count 3.

The State filed an application to revoke Appellant’s suspended sentence on June 17, 2016. The State alleged (1) Appellant was convicted of Violation of Protective Order in Tulsa County Case No. CM-2015-3136 on July 30, 2015, and was sentenced to one year in the Tulsa County Jail, suspended; (2) Appellant was charged February 5, 2016, in Tulsa County District Court with Larceny of Merchandise from a Retailer; (3) Appellant was charged on February 23, 2016, in Tulsa County District Court Case No. CM-2016-940 with Count 1 – Assault and Battery and Count 2 – Threatening an Act of Violence; (4) Appellant failed to report as directed; (5) Appellant absconded; (6) Appellant failed to pay probation fees, fines and costs as directed; (7) Appellant was charged with Count 1 – Obstructing an Officer, Count 2 – Resisting an Officer, Count 3 – Driving Under the Influence of Alcohol and Count 4 – Transporting Open Container-Alcohol on July 13, 2010, in Tulsa County Case No. CM-2010-3094; to which he entered a plea of no contest on September 22, 2010, and was sentenced to one year; (8) Appellant failed to complete any programs as directed; and (9) Appellant failed to maintain employment.

At the revocation hearing on September 28, 2016, Appellant stipulated to the State’s allegations in the application to revoke. Based upon the stipulation, the Honorable William Culver, Special Judge, found Appellant violated the rules and conditions of probation and revoked Appellant’s suspended sentence in full, with credit for time served. Appellant appeals the revocation of his suspended sentence raising the sole proposition of error that revocation in full was excessive. We affirm the order of the District Court revoking Appellant’s suspended sentence in full.

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. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3rd 554, 557. An ‘abuse of discretion’ has been defined by this Court as a ‘clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application’. Walker v. State, 1989 OK CR 65, I 5, 780 P.2d 1181. Appellant has not shown an abuse of discretion.

DECISION

The revocation of Appellant’s suspended sentence in Ottawa County District Court Case No. CF-2009-193 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision.

OPINION BY: LUMPKIN, P.J.:

LEWIS, V.P.J.: Concur

HUDSON, J.: Concur

KUEHN, J.: Concur

ROWLAND, J.: Concur

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Footnotes:

1. Okla. Stat. tit. 22 § 982a.
2. Okla. Stat. tit. 22 § 450.
3. Okla. Stat. tit. 22 § 138.
4. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3rd 554, 557.
5. Walker v. State, 1989 OK CR 65, I 5, 780 P.2d 1181.

Oklahoma Statutes citations:

No Oklahoma statutes found.

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found

Case citations:

• Tilden v. State, 2013 OK CR 10, I 10, 306 P.3rd 554, 557
• Walker v. State, 1989 OK CR 65, I 5, 780 P.2d 1181