James Parnell Johnson v The State Of Oklahoma

RE-2011-277

Filed: Jan. 10, 2012

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

James Parnell Johnson appealed his conviction for Feloniously Carrying a Firearm. His conviction and sentence were originally ten years, with the first six months in jail and a $250 fine. Johnson had several issues while on probation, leading to revocation hearings. In total, the court decided to revoke ninety months of his suspended sentence due to new criminal activities. Johnson argued that adding a $200 Victim Compensation Assessment during his revocation hearing was not allowed because he wasn't being convicted at that moment. The court agreed and removed the extra assessment. However, they decided not to change the length of his revocation because the original decision was not seen as an abuse of discretion. The final decision confirmed that Johnson's sentence was mostly upheld, but the extra Victim Compensation Assessment was cancelled. Judges concurred with the decision, and one judge dissented.

Decision

The order of the District Court of McCurtain County revoking part of James Parnell Johnson's suspended sentence in Case No. CF-2005-263 is AFFIRMED. However, the assessment of a $200.00 Victim Compensation Assessment imposed at the revocation proceeding is VACATED. Pursuant to 3 Our finding does not preclude a victims compensation assessment being ordered against Johnson if he were ever convicted of Assault and Battery Against a Police Officer. 4 Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was the imposition of an additional Victim Compensation Assessment after revoking Johnson's sentence improper?
• Did the District Court abuse its discretion in revoking the length of Johnson's suspended sentence based on his advancements while on probation?

Findings

• the court erred in imposing an additional Victim Compensation Assessment at the revocation hearing
• the assessment of $200.00 Victim Compensation Assessment imposed at the revocation proceeding is VACATED
• there was no abuse of discretion by the District Court in revoking part of Johnson's suspended sentence
• the order of the District Court of McCurtain County revoking part of Johnson's suspended sentence is AFFIRMED

RE-2011-277

Jan. 10, 2012

James Parnell Johnson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. LUMPKIN, JUDGE:

On August 3, 2005, James Parnell Johnson entered a guilty plea to Feloniously Carrying a Firearm, in McCurtain County District Court Case No. CF-2005-263. Johnson was sentenced to ten years incarceration, with all but the first six months suspended. Johnson was also fined $250.00 and assessed a $550.00 Victim’s Compensation Assessment, pursuant to 21 O.S.2010, § 142.18(A).

On November 28, 2005, the State filed an application to revoke Johnson’s suspended sentence. The State alleged Johnson had violated his probation by committing the new crimes of Resisting Arrest and Possession of Methamphetamine. On March 10, 2006, the District Court revoked eighteen months of Johnson’s suspended sentence. On August 13, 2008, and September 19, 2008, the State filed an application to revoke and an amended application to revoke, respectively. On October 30, 2008, the parties stipulated, and Johnson pled guilty in McCurtain County District Court Case Nos. CF-2008-408, Larceny of a House, and CF-2008-477, Possession of Methamphetamine and Paraphernalia. Johnson subsequently completed Drug Court, and on June 16, 2010, the applications to revoke were dismissed.

On March 1, 2011, the State filed an amended application to revoke. The State alleged Johnson had violated his probation by committing the new crimes of Eluding a Police Officer, Assault and Battery on a Police Officer, and Possession of a Controlled Dangerous Substance (Methamphetamine). On March 14, 2011, a hearing was held before the Honorable Willard Driesel, District Judge. At the conclusion of the hearing, the court revoked ninety months of Johnson’s suspended sentence. From that order of revocation, Johnson has perfected this appeal.

In his first assignment of error, Johnson asserts the District Court’s imposition of an additional Victim Compensation Assessment after revoking his sentence was improper. Johnson contends 21 O.S.2001, § 142.18 authorizes the imposition of a Victim Compensation Assessment only at the time a defendant is originally convicted. Based on that interpretation, Johnson argues an order of revocation is not a conviction, and as such, there is no legal authority for the imposition of a Victim Compensation Assessment at a revocation proceeding.

The State responds that Johnson’s argument is moot because the Judgment and Sentence of record only reflects the original Victim Compensation Assessment imposed at Johnson’s guilty plea. Therefore, the State concludes, there is no error to correct. In his Reply Brief, Johnson asserts that even though the Judgment and Sentence does not reflect the $200 Victim Compensation Assessment imposed by Judge Driesel at the revocation hearing, the assessment that was orally ordered at the revocation hearing is still an error that needs to be corrected by this Court. We agree.

1 Title 21 O.S.2001, § 142.18(A) provides that a Victim Compensation Assessment can be ordered upon any person convicted of, pled guilty to, or agreed to a deferred judgment. In the case at bar, the revocation proceeding was not a hearing wherein Johnson was convicted of, pleading guilty to, or agreeing to a deferred judgment. 2 Title 22 O.S.2010, § 991a(A)(1)(j) provides that when a defendant is convicted of a crime the court shall either suspend the execution of sentence in whole or in part, with or without probation. The court, in addition, may order the convicted defendant at the time of sentencing or at any time during the suspended sentence to pay a reasonable sum to the Crime Victims Compensation Board for the benefit of crime victims. (Emphasis added.) Again, Johnson’s revocation hearing was not a hearing wherein he was convicted.

1 Oral pronouncements of sentences control over written conflicting orders. See LeMay v. Rahhal, 1996 OK CR 21, 1118 – 20, 1996 OK CR 21. 2 In Wollen v. Coffman, 1984 OK CR 53, 12, 676 P.2d 1375, 1376, this Court found that § 142.18(A) and (B) are directed against any person convicted, that is, formally pronounced guilty upon a verdict or plea of guilty, and any person pleading guilty, that is, entering a plea of guilty without judgment. The latter description clearly embraces those receiving a deferred judgment upon a plea of guilty. 3 Therefore, we FIND that a victims compensation assessment is one that may be ordered either at the time of sentencing, or at any time during the suspended sentence. However, the assessment may not be ordered twice; it’s an either or proposition for the sentencing court. In the case at bar, Johnson was ordered to pay a victims compensation assessment at the time he was sentenced for Feloniously Carrying a Firearm. Therefore, there was no legal authority for the imposition of an additional victims compensation assessment at the revocation hearing. The assessment of $200.00 is hereby VACATED. ³

In his final assignment of error, Johnson asks this Court to modify the length of the revocation order because of the advancements he had made while on probation. A District Court’s decision to revoke a suspended sentence, in whole or in part, is reviewable under the abuse of discretion standard. Hampton v. State, 2009 OK CR 4, 203 P.3d 179, 182. Based on Johnson’s past performance while on probation, we find no abuse of discretion by the District Court.

DECISION

The order of the District Court of McCurtain County revoking part of James Parnell Johnson’s suspended sentence in Case No. CF-2005-263 is AFFIRMED. However, the assessment of a $200.00 Victim Compensation Assessment imposed at the revocation proceeding is VACATED. Pursuant to 3 Our finding does not preclude a victims compensation assessment being ordered against Johnson if he were ever convicted of Assault and Battery Against a Police Officer. 4 Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. 21 O.S.2001, § 142.18(A)
2. 22 O.S.2010, § 991a(A)(1)(j)
3. LeMay v. Rahhal, 1996 OK CR 21, 1118 - 20, 1996 OK CR 21
4. Wollen v. Coffman, 1984 OK CR 53, 12, 676 P.2d 1375, 1376
5. Hampton v. State, 2009 OK CR 4, 203 P.3d 179, 182
6. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 142.18 - Victim Compensation Assessment
• Okla. Stat. tit. 22 § 991a - Suspension of Sentences

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:

• LeMay v. Rahhal, 1996 OK CR 21
• Wollen v. Coffman, 1984 OK CR 53
• Hampton v. State, 2009 OK CR 4