Allen James Taylor v State Of Oklahoma

F-2008-824

Filed: Feb. 22, 2010

Not for publication

Prevailing Party: Allen James Taylor

Summary

Allen James Taylor appealed his conviction for conspiracy and burglary charges. Conviction and sentence were affirmed. Judge Lumpkin dissented.

Decision

Appellant's termination from Drug Court in Pontotoc County Case No. CF-2005-215 is AFFIRMED. The order revoking Appellant's suspended sentences in full and directing that they be served consecutively is VACATED, and this matter is REMANDED to the District Court of Pontotoc County with instructions to issue an order consistent with this Court's opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an abuse of discretion when the trial court revoked Appellant's suspended sentences and ordered the terms to be served consecutively instead of concurrently?
• Did trial counsel provide ineffective assistance by allowing Appellant to enter into a Drug Court agreement that effectively lengthened his original sentences?
• Was Appellant denied effective assistance of counsel upon entry of his original guilty plea, which he now claims is invalid?

Findings

• The trial court did not abuse its discretion in terminating Appellant's Drug Court participation.
• The District Court's order revoking suspended sentences and ordering them to be served consecutively is vacated.
• The matter is remanded to the District Court to issue an order that Appellant's sentences, to the extent revoked, are to be served concurrently.
• Appellant's claim regarding ineffective assistance of counsel upon entry of his original guilty plea is not properly presented in this appeal.

F-2008-824

Feb. 22, 2010

Allen James Taylor

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, VICE PRESIDING JUDGE:

On February 10, 2006, Appellant, represented by counsel, entered guilty pleas to charges of Count 1, Conspiracy to Commit a Felony (Burglary of an Automobile); Count 2, Burglary of an Automobile; Count 3, Conspiracy to Commit a Felony (Breaking into Parked Vehicles); and Count 4, Malicious Injury to Property over $2,500 (Breaking into Several Parked Vehicles) in Pontotoc County Case No. CF-2005-215. Appellant was sentenced to ten (10) years for Count 1, seven (7) years each for Counts 2 and 3, and two (2) years for Count 4, all suspended, subject to terms and conditions of probation. The sentences were ordered to run concurrently.

On January 17, 2007, the State filed an Application to Revoke Suspended Sentence, alleging Appellant violated the terms and conditions of his probation. On October 2, 2007, Appellant stipulated to the violations alleged in the Application to Revoke, and the parties advised the District Court of Pontotoc County, the Honorable Thomas S. Landrith, District Judge, that they had reached an agreement whereby Appellant agreed to participate in a Drug Court program, and agreed to delayed execution of his suspended sentence. Appellant agreed that termination from Drug Court would result in the imposition of his original sentences, which would then be run consecutively instead of concurrently.

On July 31, 2008, the State filed an Application to Terminate Appellant from Drug Court. On August 19, 2008, Appellant’s Drug Court participation was terminated, and he was sentenced to the Department of Corrections, as ordered in his original suspended sentence, with the exception that the sentences were now ordered to be served consecutively instead of concurrently.

Appellant appeals his Drug Court termination and raises the following issues:

1. The trial court abused its discretion when it revoked Appellant’s suspended sentences and ordered the terms to be served consecutively instead of concurrently;
2. Trial counsel was ineffective for allowing Appellant to enter into a Drug Court agreement that effectively lengthened his original sentences; and
3. Appellant was denied effective assistance of counsel upon entry of his original guilty plea, which he now claims is invalid.

The order terminating Appellant from Drug Court is AFFIRMED. The District Court’s order is VACATED and the matter is REMANDED to the District Court of Pontotoc County for issuance of an order directing that Appellant’s sentences, to the extent they are revoked, are to be served concurrently, not consecutively.

Appellant does not dispute that he violated the terms and conditions of the Drug Court program, and we find no abuse of discretion in the District Court’s termination of his Drug Court participation. We find merit, however, in Appellant’s claim that it was error for the District Court to order his sentences to run consecutively when the original sentence imposed ordered the sentences to be served concurrently. At a hearing where the State seeks revocation of a suspended sentence, the question is whether the sentence originally imposed should be executed, and the court makes a factual determination as to whether or not the terms of the suspended sentence have been violated. See, Robinson v. State, 1991 OK CR 44, IT 3, 809 P.2d 1320, 1322. The consequence of judicial revocation is to execute a penalty previously imposed in a judgment and sentence. Id.; Burnham v. State, 2002 OK CR 6, fn. 2; 43 P.3d 387, 390; Degraffenreid v. State, 1979 OK CR 88, 599 P.2d 1107; Bishop v. State, 1979 OK CR 9, IT 4, 593 P.2d 505, 507; Marutzky v. State, 1973 OK CR 398, IT 5, 514 P.2d. 430.

This Court recognizes that upon termination from Drug Court, the only authorized punishment is that to which the parties agreed at admission. See, 22 O.S. 2001, § 471.7(E) and (G); Hagar U. State, 1999 OK CR 35, II 11, 990 P.2d 894, 898. When Appellant entered into this Drug Court agreement, however, he had already been sentenced in Case No. CF-2005-215. The execution of that sentence was merely suspended pending completion of Appellant’s probation. In admitting Appellant to the Drug Court program, and delaying sentencing on the State’s application to revoke pending the Drug Court outcome, the District Court simply delayed execution of the original suspended sentence. Appellant’s agreement to a longer sentence upon termination from Drug Court was void. The District Court’s sentencing authority, upon terminating Appellant from Drug Court, was to revoke, in full or in part, the remaining unserved portion of Appellant’s original suspended sentences. As those sentences were originally ordered to be served concurrently, the District Court had no authority to order them to be served consecutively after Appellant was terminated from Drug Court.

Appellant’s final claim presented at Proposition 3, that he was denied effective assistance of counsel upon entry of his original guilty plea in Pontotoc County Case No. CF-2005-215, is not properly presented as part of Appellant’s Drug Court termination appeal. The scope of review for an appeal of a Drug Court termination is limited to the validity of the termination order. Rule 1.4(D)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010). Any challenge Appellant might have regarding the validity of his conviction must be presented in a direct appeal of that conviction pursuant to the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010).

DECISION

Appellant’s termination from Drug Court in Pontotoc County Case No. CF-2005-215 is AFFIRMED. The order revoking Appellant’s suspended sentences in full and directing that they be served consecutively is VACATED, and this matter is REMANDED to the District Court of Pontotoc County with instructions to issue an order consistent with this Court’s opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. See, Robinson v. State, 1991 OK CR 44, IT 3, 809 P.2d 1320, 1322.
2. Id.; Burnham v. State, 2002 OK CR 6, fn. 2; 43 P.3d 387, 390;
3. Degraffenreid v. State, 1979 OK CR 88, 599 P.2d 1107;
4. Bishop v. State, 1979 OK CR 9, IT 4, 593 P.2d 505, 507;
5. Marutzky v. State, 1973 OK CR 398, IT 5, 514 P.2d. 430.
6. See, 22 O.S. 2001, § 471.7(E) and (G); Hagar U. State, 1999 OK CR 35, II 11, 990 P.2d 894, 898.
7. Rule 1.4(D)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010).
8. Title 22, Ch.18, App. (2010).
9. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for felonies
• Okla. Stat. tit. 22 § 471.7 (2001) - Drug Court guidelines
• Okla. Stat. tit. 22 § 18 (2010) - Rules of the Oklahoma Court of Criminal Appeals

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:

• Robinson v. State, 1991 OK CR 44, I 3, 809 P.2d 1320, 1322
• Burnham v. State, 2002 OK CR 6, fn. 2; 43 P.3d 387, 390
• Degraffenreid v. State, 1979 OK CR 88, 599 P.2d 1107
• Bishop v. State, 1979 OK CR 9, I 4, 593 P.2d 505, 507
• Marutzky v. State, 1973 OK CR 398, I 5, 514 P.2d 430
• Hagar v. State, 1999 OK CR 35, II 11, 990 P.2d 894, 898