Hugo Young v The State Of Oklahoma

RE-2000-251

Filed: Feb. 2, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Hugo Young appealed his conviction for Lewd Molestation. Conviction and sentence were modified to eight years imprisonment, with the rest suspended and the same probation rules as before. Judge Reta M. Strubhar dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT, by a vote of 5 - 0, after hearing oral argument, that the order revoking Appellant's suspended sentence is AFFIRMED. HOWEVER, IT IS THE FURTHER ORDER OF THIS COURT, by a vote of 3 - 2, that the revocation of Appellant's sentence be modified to eight (8) years, with the balance of Appellant's sentence to be suspended with the same rules and conditions of probation as ordered by the District Court on October 18, 1996. IT IS SO ORDERED. WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 2 day of February, 2001.

Issues

• was there sufficient, credible evidence to support the District Court's revocation of Appellant's suspended sentence?
• did the District Court abuse its discretion in revoking the entirety of Appellant's suspended sentence?
• is the modification of Appellant's revocation to eight years appropriate under the circumstances?

Findings

• the order revoking Appellant's suspended sentence is affirmed
• the revocation of Appellant's sentence be modified to eight (8) years
• the balance of Appellant's sentence is to be suspended with the same rules and conditions of probation as ordered by the District Court on October 18, 1996

RE-2000-251

Feb. 2, 2001

Hugo Young

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ACCELERATED DOCKET ORDER

On October 6, 1993, Appellant pled guilty in the District Court of Wagoner County, Case No. CF-93-31, to Lewd Molestation. Appellant’s sentence was deferred and he was placed on three years’ probation, with rules and conditions of probation, including sexual abuse counseling. On May 23, 1996, the State filed an application to accelerate Appellant’s Judgment and Sentence. Appellant confessed the State’s application and his deferred sentence was accelerated. The trial court assessed punishment at twenty (20) years imprisonment, with three (3) years incarceration and seventeen (17) years suspended. Appellant discharged his incarceration on April 6, 1998. On May 13, 1999, the State filed an application to revoke. Following a hearing on the State’s application, Appellant’s suspended sentence was revoked in full. Appellant appeals from that order.

Pursuant to Rule 11.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2000), Appellant’s appeal was automatically assigned to the Accelerated Docket of this Court. On appeal, Appellant contends there was insufficient, credible evidence to support the District Court’s revocation of Appellant’s suspended sentence. Oral argument was held January 18, 2001, pursuant to Rule 11.2(F). At the conclusion of oral argument, this Court voted, five to zero (5-0), to affirm the order of the District Court. However, by a vote of three to two (3-2), the Court found an abuse of discretion in the District Court’s decision to revoke Appellant’s sentence in full, and have therefore modified the revocation of Appellant’s sentence to eight (8) years. The balance of Appellant’s sentence is to be suspended with the same rules and conditions of probation as ordered by the District Court on October 18, 1996.

The decision to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court, and that decision will not be interfered with absent an abuse of discretion. Harris v. State, 1989 OK CR 10, I 4, 772 P.2d 1329, 1330. In the case at bar, we find sufficient evidence was presented to demonstrate Appellant violated the terms and conditions of his probation by failing to timely report to sexual offender treatment as directed. However, we find an abuse of discretion in the District Court’s decision to revoke the entirety of Appellant’s suspended sentence.

IT IS THEREFORE THE ORDER OF THIS COURT, by a vote of 5 – 0, after hearing oral argument, that the order revoking Appellant’s suspended sentence is AFFIRMED. HOWEVER, IT IS THE FURTHER ORDER OF THIS COURT, by a vote of 3 – 2, that the revocation of Appellant’s sentence be modified to eight (8) years, with the balance of Appellant’s sentence to be suspended with the same rules and conditions of probation as ordered by the District Court on October 18, 1996.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 2 day of February, 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. Okla. Stat. tit. 22 § 11.2
2. Harris v. State, 1989 OK CR 10, ¶ 4, 772 P.2d 1329, 1330.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Definitions for offenses against the person
• Okla. Stat. tit. 22 § 981 - Probation and parole
• Okla. Stat. tit. 22 § 982 - Revocation of parole or 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:

• Harris v. State, 1989 OK CR 10, I 4, 772 P.2d 1329, 1330