James V. Vassar v The State Of Oklahoma

RE-2000-1566

Filed: Sep. 7, 2001

Not for publication

Prevailing Party: James V. Vassar

Summary

James V. Vassar appealed his conviction for several drug offenses. Conviction and sentence were vacated, and the case was sent back for further proceedings. Judge Charles S. Chapel dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the Okfuskee County District Court's order of March 27, 1995, suspending Appellant's three fifteen-year sentences in Case Nos. CF-94-12 and CF-94-18 be VACATED and set aside. IT IS THE FURTHER ORDER OF THIS COURT that CF-94-12 and CF-94-18 be REMANDED to the District Court for further proceedings. Upon mandate being issued, Appellant should be granted a minimum of ten (10) days from the date thereof to elect whether or not he desires to withdraw one or more of his pleas of guilty. Should Appellant withdraw his guilty plea or pleas, the District Court shall thereupon vacate the respective Judgment and Sentence. The State is then free to prosecute Appellant as it deems appropriate in the case or cases where judgment has been set aside. Withdrawal by Appellant of a plea of guilty which plea served as sole consideration for dismissal by the State of other matters, shall permit the State to re-institute those matters SO dismissed and prosecute Appellant thereon, assuming such matters are not now barred by applicable statutes of limitations. Should Appellant elect to stand upon his plea or pleas of guilty, the District Court shall then order the immediate execution of the respective fifteen-year sentence(s). In the latter event, Appellant shall be credited with all time served in custody while under the trial court's May 21, 1998, revocation orders and while under arrest upon the State's revocation application. Additionally the trial court shall file a corrected Judgment and Sentence as may be appropriate and otherwise proceed in a manner consistent with the above findings and orders of this Court and our decision in Bumpus. IT IS THE FURTHER ORDER OF THIS COURT that as the invalid suspension orders are this date vacated, Appellant's remaining assignments of error concerning the May 21, 1998, revocation orders are rendered moot and are therefore DISMISSED. Oral Argument currently scheduled in this matter for September 13, 2001, is hereby STRICKEN. IT IS SO ORDERED.

Issues

• Was there a basis for allowing the Appellant the opportunity to withdraw his plea of guilty pursuant to Bumpus v. State?
• Did the trial court exceed its authority in suspending the Appellant's sentences given his prior felony convictions?
• Was the State's argument regarding the applicability of Bumpus flawed?
• Should the March 27, 1995, order suspending Appellant's sentences be vacated and remanded for further proceedings?
• What procedural rights does the Appellant have upon remand concerning his guilty pleas?
• Are the Appellant's remaining assignments of error regarding the revocation orders moot due to the vacating of the suspension orders?

Findings

• the court vacated the order suspending Appellant's sentences
• the case was remanded for further proceedings
• Appellant should be allowed to withdraw his guilty plea(s)
• remaining assignments of error concerning the revocation orders were dismissed as moot
• oral argument was stricken

RE-2000-1566

Sep. 7, 2001

James V. Vassar

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ORDER STRIKING ORAL ARGUMENT, VACATING ORDERS OF SUSPENSION, AND REMANDING FOR FURTHER PROCEEDINGS

Appellant presents this Court with an appeal from a May 21, 1998, order revoking suspended sentences in Okfuskee County District Court, Case Nos. CF-94-12 and CF-94-18. In CF-94-12, Appellant was found guilty of Unlawful Possession of a Controlled Drug (Cocaine) and Unlawful Possession of a Controlled Drug (Methamphetamine). In CF-94-18, Appellant’s conviction was for Unlawful Distribution of Controlled Drug to Minor. All three of these offenses were alleged to have occurred on January 30, 1994. Appellant’s convictions were each entered on March 27, 1995, upon Appellant’s pleas of guilty which were all made while Appellant was represented by counsel. Such pleas were pursuant to a plea agreement with the State whereby the State agreed to recommend a sentence of fifteen years for each offense and to further recommend such sentences be served concurrently. The District Court, the Honorable Franklin D. Rahhal, presiding, accepted Appellant’s pleas and imposed concurrent, fifteen-year terms of imprisonment upon each of Appellant’s three offenses, and ordered execution of these sentences be suspended under terms of probation.

On April 1, 1998, the State, in each of Appellant’s cases, filed applications seeking to revoke those orders suspending Appellant’s fifteen-year sentences. The applications alleged Appellant violated probation by being in possession of methamphetamine. Proceedings upon the State’s applications were joined for the purposes of the revocation hearing held on May 21, 1998. After receiving evidence upon the State’s applications, Judge Rahhal ordered each of Appellant’s suspended sentences revoked in full.

In Proposition I of this appeal of the District Court’s revocation order, Appellant claims: This case should be remanded to the District Court with instructions to allow Appellant the opportunity to withdraw his plea of guilty pursuant to Bumpus v. State, 1996 OK CR 52, 925 P.2d 1208. This claim finds support in the record presented. As occurred in Bumpus, there was no evidence of Appellant’s prior convictions until Appellant admitted at his revocation hearing that he had [p]robably three or four felony convictions prior to those for which he was being revoked. At the revocation hearing, Judge Rahhal specifically asked Appellant about a three-year sentence received in 1953 for transportation of stolen auto, a twenty-five year sentence in 1956 for burglary second, after former conviction and a seven-and-a-half year sentence in 1973 for uttering a publication of a controlled U.S. obligation. Appellant affirmed the accuracy of each of these convictions. The Assistant District Attorney, at the conclusion of Appellant’s testimony, stated she was concerned about Bumpus v. State, because it appears that Mr. Vassar has at least five prior felony convictions and is ineligible for a suspended sentence and got one anyway. The Assistant District Attorney then noted that the orders suspending Appellant’s sentences preceded Bumpus and assured the trial court that Bumpus was inapplicable to Appellant’s matter. At the conclusion of Appellant’s revocation hearing, one of Judge Rahhal’s findings was that Appellant had been convicted of four prior felonies.

The foregoing places upon the face of this record circumstances sufficient to render the March 27, 1995, order suspending execution of Appellant’s three fifteen-year sentences invalid by reason of the legislative prohibition against suspending execution of sentence for defendants being sentenced upon their third or subsequent to their third conviction of a felony. We therefore FIND remand of Appellant’s matter is required for purposes of conducting further proceedings consistent with the decision in Bumpus.

IT IS THEREFORE THE ORDER OF THIS COURT that the Okfuskee County District Court’s order of March 27, 1995, suspending Appellant’s three fifteen-year sentences in Case Nos. CF-94-12 and CF-94-18 be VACATED and set aside. IT IS THE FURTHER ORDER OF THIS COURT that CF-94-12 and CF-94-18 be REMANDED to the District Court for further proceedings. Upon mandate being issued, Appellant should be granted a minimum of ten (10) days from the date thereof to elect whether or not he desires to withdraw one or more of his pleas of guilty. Should Appellant withdraw his guilty plea or pleas, the District Court shall thereupon vacate the respective Judgment and Sentence. The State is then free to prosecute Appellant as it deems appropriate in the case or cases where judgment has been set aside. Withdrawal by Appellant of a plea of guilty which plea served as sole consideration for dismissal by the State of other matters shall permit the State to re-institute those matters so dismissed and prosecute Appellant thereon, assuming such matters are not now barred by applicable statutes of limitations. Should Appellant elect to stand upon his plea or pleas of guilty, the District Court shall then order the immediate execution of the respective fifteen-year sentence(s). In the latter event, Appellant shall be credited with all time served in custody while under the trial court’s May 21, 1998, revocation orders and while under arrest upon the State’s revocation application. Additionally, the trial court shall file a corrected Judgment and Sentence as may be appropriate and otherwise proceed in a manner consistent with the above findings and orders of this Court and our decision in Bumpus.

IT IS THE FURTHER ORDER OF THIS COURT that as the invalid suspension orders are this date vacated, Appellant’s remaining assignments of error concerning the May 21, 1998, revocation orders are rendered moot and are therefore DISMISSED. Oral Argument currently scheduled in this matter for September 13, 2001, is hereby STRICKEN.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 7th day of September, 2001.

GARY L. LUMPKIN, Presiding Judge
CHARLES A. JOHNSON, Vice Presiding Judge
CHARLES S. CHAPEL, Judge
RETA M. STRUBHAR, Judge
STEVE LILE, Judge

ATTEST: Clerk

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Footnotes:

1. Bumpus v. State, 1996 OK CR 52, 925 P.2d 1208.
2. Vassar v. State, 1958 OK CR 61, 328 P.2d 445.
3. Vassar v. Raines, 274 F.2d 369 (10th Cir. 1959).
4. In re Vassar, 1959 OK CR 43; 338 P.2d 359.
5. Vassar v. United States, 394 F. Supp. 67 (W.D. Okla. 1974).
6. 22 O.S.Supp. 1993, § 991a, & 22 O.S.Supp.1994, § 991a.
7. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708; 93 L.Ed. 2d 649 (1987).
8. Fite v. State, 1993 OK CR 58, ¶ 10, 873 P.2d 293, 299 (order on rehearing).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Unlawful Possession of a Controlled Drug
• Okla. Stat. tit. 21 § 843 (2011) - Unlawful Distribution of Controlled Drug to Minor
• Okla. Stat. tit. 22 § 991a (1993) - Prohibition Against Suspended Sentences for Certain Felonies
• Okla. Stat. tit. 22 § 991a (1994) - Prohibition Against Suspended Sentences for Certain Felonies

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:

• Bumpus v. State, 1996 OK CR 52, 925 P.2d 1208
• Vassar v. State, 1958 OK CR 61, 328 P.2d 445
• Vassar v. Raines, 274 F.2d 369 (10th Cir. 1959)
• In re Vassar, 1959 OK CR 43, 338 P.2d 359
• Vassar v. United States, 394 F. Supp. 67 (W.D. Okla. 1974)
• Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708; 93 L.Ed. 2d 649 (1987)
• Fite v. State, 1993 OK CR 58, 873 P.2d 293