Tony Dewayne Fox v The State Of Oklahoma

RE-2003-660

Filed: Jun. 23, 2004

Not for publication

Prevailing Party: Tony Dewayne Fox

Summary

Tony Dewayne Fox appealed his conviction for violating probation. The conviction and sentence were partly revoked for failing to pay restitution and supervision fees. Judge Lindley found that Fox had health problems which affected his ability to pay. The court decided to reverse the revocation and send the case back for more hearings because there was no proof that Fox's failure to pay was willful. Judge Lumpkin dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the June 4, 2003, order revoking a three-year portion of the suspension order entered in Stephens County District Court, Case No. CF-2000-22, is REVERSED AND REMANDED for further proceedings consistent with this Order. IT IS SO ORDERED.

Issues

• Was there an effective assistance of counsel provided to the appellant during the revocation proceedings?
• Did the trial court abuse its discretion by revoking the appellant's suspended sentence without evidence of willfulness in the probation violations?
• Was the assessment of financial obligations against the appellant excessive and subject to modification?

Findings

• the court erred
• the amounts ordered to be paid are excessive, and the amounts will not be modified downward
• there was no evidence offered as to the willfulness of Appellant's probation violations
• trial counsel did not provide ineffective assistance
• the matter should be remanded for further evidentiary proceedings on willfulness

RE-2003-660

Jun. 23, 2004

Tony Dewayne Fox

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

This is an appeal from revocation proceedings in the District Court of Stephens County, Case No. CF-2000-22. Appellant, on November 14, 2003, filed in this appeal a Motion to Amend Designation of Record and to Supplement on Appeal with Items Noted in the Amended Designation. Appellant’s Motion advises that there are transcripts of seven particular hearings before the trial court in CF-2000-22, and that these transcripts are necessary to provide effective assistance of counsel to Mr. Fox on appeal. The Motion therefore requests that the appeal record be supplemented with these transcripts. Accompanying Appellant’s Motion was an Amended Designation of Record listing these seven transcripts. Appellant filed his Amended Designation in the District Court, and the transcripts were thereupon tendered to the Clerk of this Court for filing. This Court FINDS Appellant’s Motion to Amend should be granted, and the transcripts made a part of the appeal record as hereinafter set forth.

In CF-2000-22, Appellant was found guilty of Concealing Stolen Property, and on December 19, 2001, the Honorable George W. Lindley, District Judge, found Fox was in violation of Special Condition A in that he has failed to pay restitution as directed. He is currently $107 delinquent toward restitution in CF-01-319, with a last payment for $49 (with a $1 collection fee) on 11-27-02. He is scheduled to pay $50 per month in this case beginning 1-15-02. Fox is also $305 delinquent toward restitution in CF-00-22. His last payment in this case was for $99 (with a $1 collection fee) on 11-27-02. He was scheduled to pay $100 per month in this case beginning 1-15-02. Although alleging that Appellant’s acts violated the terms of his probation, the Petition notably did not allege Appellant’s acts were willful.

On February 6, 2003, the State’s Petition came on for hearing. Appellant, represented by court-appointed counsel, made the following announcement: Your Honor, I have gone over the Application to Revoke the Suspended Sentences, and I have conferred with Mr. Fox in reference to monies that are owing. He’s got some-apparently some major health problem issues here that he needs to address. He’s waiting-apparently he’s applied for disability and he anticipates being approved for that and receive payments. And Your Honor, we-we would stipulate that those amounts are due. We’d ask that the matter be likewise continued to see if we can bring all of these things current. Get his health problems- and he can probably elucidate more about the health issues to you, Judge, than I can. Judge Lindley then inquired of Appellant. Appellant revealed he was under a doctor’s care, had undergone numerous back surgeries, had developed an unrelated seizure disorder, and was taking prescription medication for his condition. Appellant advised that he was making a Social Security disability claim due to his health conditions. The parties agreed to continue Appellant’s matter for four months for further proceedings.

In rescheduling Appellant’s matter for June 4, 2003, Judge Lindley sentenced Appellant for that offense to five (5) years imprisonment, to restitution of $9,866.73, and to $3,496.00 in various costs, fines, and fees. Judge Lindley suspended execution of Appellant’s term of imprisonment but conditioned this suspension order upon Appellant complying with certain terms of probation. Among these terms was the requirement that Appellant maintain lawful, gainful employment, that Appellant pay a probation fee of $40.00 per month, and that Appellant pay the restitution assessment at the rate of $100.00 per month. On January 22, 2003, the State filed a Petition to Revoke Suspended Sentence. The Petition claimed that Appellant committed the following probation violations:

1. Fox is in violation of rule 3 in that he has failed to be gainfully employed while under supervision. He has worked only sporadically and has only worked for a total of 6 months since being accelerated to a suspended sentence on 12-19-01.
2. Fox is in violation of rule 11 in that he has failed to pay supervision fees and court costs as directed. He has made no payments toward court costs to date but has been granted an extension on payments due to his reported poor health and lack of income. He is currently $120 delinquent toward probation fees through 12-02, with a last payment of $40 on 11-27-02.

In apparent reference to both Appellant’s medical and financial problems, the court observed that’s going to give you an opportunity to see what’s going to happen on down the road, but also to give you some time to try to get caught up with these matters and come back into compliance.

On June 4th, Appellant again appeared with court-appointed counsel. Appellant was still delinquent upon his monetary obligations under the orders of probation. Testimony was then offered by Appellant concerning the reasons Appellant had violated his probation and had not paid the delinquency. At the conclusion of the June 4th hearing, the District Court had before it a record that revealed the following: that Appellant had difficulty finding employment because of a back injury that made him uninsurable; that he was under a doctor’s care for his health conditions and had sought medical treatment for them; that he had worked sporadically for about half of the time that he had been on probation; that he had been granted an extension on payments [of court costs] due to his reported poor health and lack of income; that as of the January 2003 Petition to Revoke, Appellant had been able to pay since the date of his December 2001 sentencing, all but three of his monthly $40.00 probation fee payments and all but three of his monthly $100.00 restitution payments, with the last of such payments being made on November 27, 2002; that Appellant had for the most part been making regular payments until his wife had lost her job in November of 2002; that the District Court twice found Appellant was entitled to court-appointed counsel due to indigence; that the only agency that Appellant could find to employ him with his existing back injury was a painting contractor, but that his employment with this company was required to cease when Appellant developed a seizure disorder; that his taking employment with the painting company caused his Social Security disability claim to be stopped; that because Appellant could not afford his medications, he was able to obtain them for free from the Compassion Clinic; and that, except for occasional unspecified assistance from family members, that the only current source of income available to Appellant was a $360.00 disability check that his son received.

Despite the foregoing record, Judge Lindley found Appellant’s suspended sentence should be partially revoked for a period of three years. In doing so, Judge Lindley cited to those acts committed by Appellant that had caused his deferred sentence to be accelerated. Each of those acts, however, preceded the imposition of the suspended sentencing order with which Appellant was currently charged of having violated. Appellant now appeals the District Court’s revocation order and raises two propositions of error:

**Proposition I**
Appellant received ineffective assistance of counsel.

**Proposition II**
The amounts of money Appellant was ordered to pay are excessive, and the amounts should be modified downward.

After thoroughly considering Appellant’s proposition of error and the entire record before the Court, including the original record, transcript, and briefs, the Court FINDS that the order of revocation should be reversed and remanded for further proceedings, as Appellant has demonstrated under Proposition I that there was no evidence offered as to the willfulness of Appellant’s probation violations.

However, before discussing Appellant’s Proposition I, the Court addresses Appellant’s second proposition of error. In Appellant’s Proposition II, Appellant argues that those sums assessed against him when his suspended sentence was imposed are excessive and should be modified. As this is an appeal from the order revoking suspended sentence, the scope of review is limited to the validity of the revocation order. The time for Appellant to have challenged the excessiveness of these assessments was in a direct appeal from his December 19, 2001, Judgment and Sentence. Therefore, Appellant’s Proposition II must be denied.

In Proposition I, Appellant argues that trial counsel provided ineffective assistance by stipulating to the allegations within the State’s Petition to Revoke when there had been no willful failure to comply with the District Court’s probation order. We find that Appellant misconstrues what occurred when trial counsel entered the February 4th stipulation. At that point in the proceedings, the State had only alleged Appellant violated probation, but it had made no allegation that any violations were willfully committed by Appellant. Appellant’s trial counsel thus stipulated to the factual allegations that Appellant had not paid as ordered and was thereby in violation of probation. A violation of probation, however, will not always justify a revocation of probation. A trial court will commit an abuse of discretion if it revokes a suspended sentence for probation violations that are not willfully committed.

The record does not reveal that trial counsel confessed that revocation should be granted, but to the contrary assured that there would be a further hearing. It thus appears trial counsel intended to reserve the issue of willfulness for further litigation should Appellant be unable, before the next hearing, to make good upon the admitted arrearage. Because trial counsel did not clearly forego Appellant’s opportunity to litigate the issue of willfulness, and was indeed permitted to present evidence of willfulness, there is no proof of ineffective assistance. Nevertheless, the Court observes that a poor record was made as concerns the stipulation agreement between the parties and as concerns the precise procedural posture the case was to take following the stipulation. This resulted in a June 4, 2003, hearing that was unclear as to the procedural status of the case and that deprived the State of a fair opportunity to present evidence rebutting Appellant’s claim that he did not willfully violate probation.

We therefore find that Appellant’s matter should be remanded for further evidentiary proceedings on the question of whether his violations were willfully committed, with notice thereof to be given to both parties.

IT IS THEREFORE THE ORDER OF THIS COURT that the June 4, 2003, order revoking a three-year portion of the suspension order entered in Stephens County District Court, Case No. CF-2000-22, is REVERSED AND REMANDED for further proceedings consistent with this Order.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 23rd day of June, 2004.

Charles A. Johnson, Presiding Judge
Steve Lile, Vice Presiding Judge
Gary L. Lumpkin, Judge
Charles S. Chapel, Judge
Reta M. Strubhar, Judge

ATTEST: Clerk

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Footnotes:

1. Fox is in violation of Special Condition A in that he has failed to pay restitution as directed.
2. These two probation requirements are extrapolated from language contained within earlier probation orders entered in Appellant's case when his sentencing had been deferred.
3. The record reveals that Appellant was also on probation in another Stephens County District Court matter, Case No. CF-2001-319.
4. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004).
5. E.g., Honeycutt U. State, 1992 OK CR 36, 11 30-40, 834 P.2d 993, 1000-01 (restitution order vacated and remanded on direct appeal where evidence was insufficient to establish victim's loss within a reasonable certainty).
6. In McCaskey U. State, the Court explained this allocation of the burden of proof in cases where the alleged probation violation is a failure to make ordered payments.
7. Sparks U. State, 1987 OK CR 247, I 5,745 P.2d 751, 752 (in revocation appeal, where record contained uncontradicted testimony that probationer was making good faith efforts to comply with restitution order, Court concluded it was an abuse of discretion to revoke).

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Honeycutt v. State, 1992 OK CR 36, 11 30-40, 834 P.2d 993, 1000-01
• McCaskey v. State, 1989 OK CR 63, I 4, 781 P.2d 836, 837
• Sparks v. State, 1987 OK CR 247, I 5, 745 P.2d 751, 752