Calvin Taylor Herrien v The State Of Oklahoma

RE-2018-426

Filed: Sep. 19, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Calvin Taylor Herrien appealed his conviction for violating his probation. Conviction and sentence: four years revoked from a total of twenty-five years. Judge Cindy H. Truong found that Herrien had violated rules of his probation, specifically that he didn't move out of an unapproved residence and didn't answer questions truthfully. Herrien argued that he didn't get a fair chance to defend himself and that the punishment was too harsh. The court decided that Herrien did violate his probation and upheld the decision to revoke four years of his sentence. Judge Kuehn, Judge Lumpkin, Judge Hudson, and Judge Rowland agreed with the decision, but Judge Kuehn only concurred in the result.

Decision

The order of the District Court of Oklahoma County revoking four years of Appellant's twenty-five year suspended sentences in Case No. CF-2011-4693 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.

Issues

• Was there an error when the district court considered testimony from alleged violations of probation not charged in the application to accelerate, giving the appellant inadequate notice to prepare a defense?
• Did the appellant have the right to confront witnesses against him and due process at the revocation hearing?
• Was the district court's order revoking the petitioner's sentence for four years excessive?

Findings

• the court erred
• the court did not err
• the court did not err

RE-2018-426

Sep. 19, 2019

Calvin Taylor Herrien

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Appellant, Calvin Taylor Herrien, appeals from the revocation of four years of his twenty-five year suspended sentences in Case No. CF-2011-4693 in the District Court of Oklahoma County, by the Honorable Cindy H. Truong, District Judge. On November 2, 2012, Appellant entered a plea of guilty to two counts of Lewd Acts With a Child Under Sixteen, and was sentenced to terms of twenty-five years on each count, with the sentences suspended pursuant to rules and conditions of probation.

On November 1, 2017, the State filed an Application to Revoke Suspended Sentence alleging that Appellant violated probation by (1) failing to reside in a residence approved by the probation officer and allowed by law; and (2) failing to promptly and truthfully answer all inquiries made by the DOC or other law enforcement personnel. On November 21, 2017, the hearing on the application to revoke began before Judge Truong.

At the revocation hearing, the State first called Allen Lane (Lane), the Chief of Police at the Spencer Police Department. Lane acknowledged that Appellant was registered as a sex offender and the house in Spencer where he was living had been approved as a residence for Appellant. Lane testified that, on September 11, 2017, it was discovered that Appellant’s residence was too close to a park and Lane notified Appellant and gave him ten days to move his residence. Within a few days, Lane spoke with Appellant about the mistake and they began to try to find an approved location. Lane testified he never told Appellant after September 11, 2017, that it was okay for him to remain at his residence.

The State’s second witness was Daniel Straka (Straka), Appellant’s probation officer. Straka testified that Appellant reported on September 26, 2017, and October 11, 2017, and both times told Straka that Lane had told Appellant it was okay to live at his residence. After the October visit, Straka went to Lane’s office and found out Appellant had not been given permission to live at his residence. On October 13, 2017, Straka went to Appellant’s residence and the lady who answered the door said Appellant was living there. The State then asked Straka what other conditions Appellant had been violating. Counsel for Appellant objected on the grounds other violations had not been alleged in the application to revoke. Judge Truong overruled the objection. Straka began testifying that Appellant had not been attending sex offender treatment classes; that he had a misdemeanor DUI that he was given a one year suspended sentence for; that he was behind on taking polygraphs as required; and that he had lived with his girlfriend and her baby before Judge Truong had modified his probation to allow him to live with the infant.

After Straka’s testimony, the State rested. Appellant testified in his own defense. Appellant acknowledged that Lane had told him he had ten days to move out of his residence. Appellant testified he got confused when he was told different things by different officials involved with his probation requirements. Appellant acknowledged he twice told Straka, after September 11, 2017, that Lane had said it was okay for him to stay at his residence. Appellant testified that he always attended sex offender classes except when he was excused for being sick, and that he had always tried to comply with his probation requirements. After his testimony, Appellant rested.

After considering the evidence and arguments, Judge Truong found that Appellant had committed the two alleged violations of his rules and conditions of probation. Judge Truong set off sentencing, and gave Appellant permission to live at his residence until the sentencing hearing. On December 1, 2017, the revocation hearing resumed before Judge Truong. After hearing additional evidence and arguments, Judge Truong revoked four years of Appellant’s twenty-five year suspended sentences.

Appellant appeals asserting three propositions of error:

PROPOSITION I: THE DISTRICT COURT ERRED WHEN IT CONSIDERED TESTIMONY FROM ALLEGED VIOLATIONS OF PROBATION NOT CHARGED IN THE APPLICATION TO ACCELERATE GIVING THE APPELLANT INADEQUATE NOTICE TO PREPARE A DEFENSE.

PROPOSITION II: THE APPELLANT WAS DEPRIVED OF THE RIGHT TO CONFRONT WITNESSES AGAINST HIM AND DUE PROCESS AT THE REVOCATION HEARING.

PROPOSITION III: THE DISTRICT COURT’S ORDER REVOKING THE PETITIONER’S SENTENCE FOR FOUR (4) YEARS IS EXCESSIVE.

ANALYSIS

Judge Truong found from the evidence presented during the revocation proceedings that Appellant had committed both of the violations alleged in the application to revoke. Appellant doesn’t challenge that finding in this appeal. He also doesn’t challenge the notice he received of the two alleged violations of probation and doesn’t claim that he did not have a full opportunity to defend those alleged violations. Lennox v. State, 1984 OK CR 22, I 5, 674 P.2d. 1146, 1149 (defendant must be given sufficient notice of alleged violations of probation and given an opportunity to prepare a defense). Violation of even one condition of probation is sufficient to justify revocation of a suspended sentence. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d. 554, 557 (citing McQueen U. State, 1987 OK CR 162, I 2, 740 P.2d. 744, 745).

In both Propositions I and II, Appellant complains about admission into evidence at the revocation hearing of other probation violations committed by Appellant. The decision to revoke a suspended sentence typically involves two distinct requirements of due process: (1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation. Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985). As stated above, Judge Truong found that Appellant had committed the two violations of probation alleged in the application to revoke his suspended sentences, and Appellant doesn’t challenge that finding or the procedures relating thereto. Therefore, the first due process requirement is satisfied. See Romano, 471 U.S. at 611. As to the second due process requirement, Appellant has not established that Judge Truong abused her discretion in determining that Appellant’s violations of probation warrant revocation of his suspended sentence. In accordance with due process standards, Appellant was given the opportunity to present mitigating evidence and to argue alternatives to imprisonment are appropriate. See Romano, 471 U.S. at 614, 616. Propositions I and II are denied. The decision of a trial court to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Jones U. State, 1988 OK CR 20, T8, 749 P.2d 563, 565. Appellant has not established that Judge Truong’s revocation of four years of his twenty-five year suspended sentences was excessive. Proposition III is denied.

DECISION

The order of the District Court of Oklahoma County revoking four years of Appellant’s twenty-five year suspended sentences in Case No. CF-2011-4693 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.

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Footnotes:

1. Okla. Stat. tit. 22 § 982a
2. Okla. Stat. tit. 22 § 984
3. Lennox v. State, 1984 OK CR 22, 674 P.2d. 1146
4. Tilden v. State, 2013 OK CR 10, 306 P.3d. 554
5. McQueen v. State, 1987 OK CR 162, 740 P.2d. 744
6. Black v. Romano, 471 U.S. 606 (1985)
7. Jones v. State, 1988 OK CR 20, 749 P.2d 563

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111 (2011) - Lewd Acts With a Child Under Sixteen
• Okla. Stat. tit. 21 § 701.8 (2011) - Revocation of Suspended Sentences
• Okla. Stat. tit. 22 § 991a (2011) - Probation
• Okla. Stat. tit. 22 § 982 (2011) - Conditions of Probation
• Okla. Stat. tit. 22 § 1080 (2011) - Revocation of Probation

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:

• Lennox v. State, 1984 OK CR 22, I 5, 674 P.2d. 1146, 1149
• Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d. 554, 557
• McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d. 744, 745
• Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985)
• Jones v. State, 1988 OK CR 20, T8, 749 P.2d 563, 565