Mark Donovan Pemberton v The State of Oklahoma

RE-2019-619

Filed: Jul. 30, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Mark Donovan Pemberton appealed his conviction for Endangering Others While Eluding a Police Officer and Possession of a Stolen Vehicle. His conviction and sentence included a total of fifteen years in prison, but all of it was suspended with two years under supervision. The State of Oklahoma later filed to revoke his suspended sentence because he did not follow the conditions set for him, such as making payments, appearing in court, and completing required programs. After a hearing, the judge revoked Pemberton's suspended sentence completely. The court found that the judge did not abuse his discretion in revoking the sentence, and they affirmed the decision. However, they modified the order to give Pemberton four days of credit for time he already spent in jail.

Decision

The revocation in full of Appellant's suspended sentence in Cleveland County District Court Case No. CF-2017-246 is AFFIRMED, but the matter is REMANDED to the District Court for modification of the revocation order to give Appellant four days credit for time served. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there error in the trial court's failure to order a Level of Services Inventory prior to guilty plea and sentencing?
• Did the appellant challenge the validity of his predicate conviction as part of the appeal of the revocation of his suspended sentence?
• Was the decision to deny credit for time served after arrest for failing to appear and new charges justified?
• Did the trial court abuse its discretion in revoking the appellant's suspended sentence in full?
• Was there competent evidence to justify the revocation of the appellant’s suspended sentence?

Findings

• The court did not err in the revocation of Appellant's suspended sentence.
• The evidence presented was sufficient to justify the revocation of Appellant's suspended sentence.
• The decision to revoke the suspended sentence was not an abuse of discretion.
• Appellant's challenge regarding a Level of Services Inventory prior to his plea is not properly presented for appeal.
• Appellant is not entitled to credit for time served in county jail after arrest for failing to appear and on new charges.
• The revocation in full of Appellant's suspended sentence is affirmed, with modification for credit for four days served.

RE-2019-619

Jul. 30, 2020

Mark Donovan Pemberton

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN LUMPKIN, JUDGE:

Appellant appeals from the revocation of his suspended sentence in Cleveland County District Court Case No. CF-2017-246. On August 3, 2018, Appellant entered a plea of guilty to Endangering Others While Eluding/Attempting to Elude a Police Officer (Count 1) and Possession of a Stolen Vehicle (Count 3). Appellant was convicted and the Honorable Michael Tupper, District Judge, sentenced Appellant pursuant to a plea agreement to fifteen years imprisonment for each count, with all fifteen years suspended and the first two years served under the supervision of the community sentencing program.

On March 27, 2019, the State filed an amended motion to revoke Appellant’s suspended sentence alleging Appellant failed to make assorted ordered payments, failed to appear repeatedly, complete skills training, complete community service, submit four drug tests, reside in a sober living residence, and attend cognitive behavior education; and committed the new crimes of Receiving Stolen Property (Count 1) and Burglary (Count 2) as alleged in City of Norman Police Department case number 19-21662. Following an August 5, 2019, revocation hearing, the Honorable Michael Tupper, District Judge, revoked Appellant’s suspended sentence in full.

Appellant’s Proposition I is not properly presented as part of the appeal of the revocation of his suspended sentence. He is objecting because the trial court did not order him to undergo a Level of Services Inventory prior to his plea of guilty and sentencing. Appellant is challenging the validity of his predicate conviction. Any attempt to appeal his Judgment and Sentence must be pursued through the procedures governing certiorari appeals. Tilden v. State, 2013 OK CR 10, ¶ 4, 306 P.3d 554, 556; Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals.

Appellant ignores that the Community Sentencing Act provisions requiring credit for time served provisions are limited to the revocation or modification of a sentence imposed as a sanction. The credit for time served provided by Sections 988.19, 988.20 and 988.21 is limited to terms of imprisonment pursuant to punishment, revocation, modification or sanction. Time spent in the county jail after arrest for failing to appear and on new charges is not the revocation or modification of a sentence imposed as a sanction. Appellant has not established he is entitled to credit for the one hundred and thirty-seven days spent in the county jail after being arrested. The decision to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565.

An ‘abuse of discretion’ has been defined by this Court as a ‘clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application’. Walker v. State, 1989 OK CR 65, ¶ 5, 780 P.2d 1181, 1183. In this case, the State filed a petition setting forth the grounds for the revocation, and competent evidence justifying the revocation was presented to the trial court establishing the requirements necessary to revoke Appellant’s suspended sentence in full. Appellant has not established revocation in full was an abuse of discretion.

DECISION

The revocation in full of Appellant’s suspended sentence in Cleveland County District Court Case No. CF-2017-246 is AFFIRMED, but the matter is REMANDED to the District Court for modification of the revocation order to give Appellant four days credit for time served. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. On August 3, 2018, Appellant entered a plea of guilty to Endangering Others While Eluding/Attempting to Elude a Police Officer (Count 1) and Possession of a Stolen Vehicle (Count 3).
2. The new crimes were prosecuted in Cleveland County District Court Case No. CF-2019-330.
3. Tilden U. State, 2013 OK CR 10, T 4, 306 P.3d 554, 556; Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals.
4. Jones U. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565.
5. Walker U. State, 1989 OK CR 65, I 5, 780 P.2d 1181, 1183.
6. 22 D.S.Supp.2018, § 991b(A).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing
• Okla. Stat. tit. 22 § 988.19 (2011) - Community Sentencing
• Okla. Stat. tit. 22 § 988.20 (2011) - Community Sentencing
• Okla. Stat. tit. 22 § 988.21 (2011) - Community Sentencing
• Okla. Stat. tit. 22 § 3.15 (2020) - Court Rules
• Okla. Stat. tit. 22 § 983 (2011) - Credit for Time Served

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:

• Tilden v. State, 2013 OK CR 10, ¶ 4, 306 P.3d 554, 556
• Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565
• Walker v. State, 1989 OK CR 65, ¶ 5, 780 P.2d 1181, 1183