Bryan William Long, Jr. v The State Of Oklahoma

C-2007-743

Filed: Jul. 15, 2008

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Bryan William Long, Jr. appealed his conviction for Unlawful Possession of Controlled Drug with Intent to Distribute (Methamphetamine). His conviction and sentence were originally five years in custody, but the sentence was suspended while he completed a substance abuse program. After he finished the program and was on probation, he committed a burglary. Long then agreed to a plea deal to enter a Drug Court program, which included conditions about what would happen if he completed or was terminated from the program. Long was later terminated from Drug Court, and the judge initially imposed a three-year sentence, but then changed it to a five-year sentence based on a motion from the state. Long argued that this change and the double jeopardy law (which prevents being tried for the same crime twice) were unfair. The court, after reviewing the case, determined that the judge had made a mistake in giving a new sentence after Long had already been sentenced. Therefore, the court ordered that the first sentence be reinstated and the matter be sent back to determine how much time Long had already served. Long’s appeal on the burglary conviction and the termination from Drug Court was denied, which meant he had to serve the updated sentences based on the prior agreements. In short: Long appealed his conviction for drug possession. Conviction and sentence were updated to five years based on new terms after Drug Court. **Judge Lumpkin dissented.**

Decision

In F-2007-636, the sentence imposed on June 12, 2007, in the District Court of Washita County, Case No. CF-2004-31, is hereby VACATED and the matter REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS to determine the total number of days served in custody under that five-year sentence of April 12, 2004, and thereby determine the unserved term remaining, and upon doing so, enter an order of revocation that commands execution of the unserved portion of sentence. Within sixty days from the filing of this decision, the District Court shall file a certified copy of its revocation order with the Clerk of this Court in F-2007-636. In C-2007-743, appealing from proceedings in the District Court of Washita County, Case No. CF-2006-90, CERTIORARI IS DENIED AND THE JUDGMENT AND SENTENCE IS AFFIRMED; provided however, the District Court is directed to enter a corrected journal entry of Judgment and Sentence in CF-2006-90 stating that Long's conviction for Burglary in the Second Degree has been enhanced by a prior felony conviction. Within sixty days from the filing of this decision, the District Court shall file a certified copy of its corrected Judgment and Sentence with the Clerk of this Court in C-2007-743. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), MANDATE IS ORDERED ISSUED upon the filing of this decision.

Issues

• Was there a violation of double jeopardy due to the imposition of a second judgment and sentence?
• Did the District Court have jurisdiction to enter a second judgment and sentence?
• Did the District Court have the authority to increase Mr. Long's sentence under 22 O.S. § 982a?

Findings

• the court erred in imposing a second judgment and sentence as it constituted double jeopardy
• the District Court did have jurisdiction to enter a second judgment and sentence under specific circumstances
• the District Court did not have the authority to increase Mr. Long's sentence under 22 O.S. § 982a
• the order of revocation and sentencing issued by the District Court in CF-2004-31 should be vacated and remanded for proper execution of the unserved portion of the original sentence
• the judgment and sentence in CF-2006-90 is affirmed, but a corrected journal entry of Judgment and Sentence must be filed

C-2007-743

Jul. 15, 2008

Bryan William Long, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: In Washita County District Court, Case No. CF-2004-31, the above-named Bryan William Long, Jr., entered a plea of guilty to Unlawful Possession of Controlled Drug with Intent to Distribute (Methamphetamine). Pursuant to a plea agreement, the Honorable Ellis Cabaniss, Associate District Judge, on April 12, 2004, sentenced Long to five years in the custody of the Department of Corrections (DOC), all suspended except for that time necessary for Long to complete the substance abuse program at DOC’s Charles E. Bill Johnson Correctional Center. After Long’s release from DOC to supervised probation, the State filed a Motion to Revoke Suspended Sentence.

Before that Motion could be heard, Long committed the offense of Burglary in the Second Degree in District Court Case No. CF-2006-90. On December 11, 2006, by agreement of the parties, Long stipulated to allegations within the Motion to Revoke, entered a plea of guilty to the Burglary II Information, and was thereupon admitted to the Washita/Custer County Drug Court Program in accordance with Drug Court plea agreements signed by all parties.

In resolution of the Motion to Revoke, Long’s Drug Court plea agreement provided that if he succeeded in completing the Drug Court Program, he would thereupon be sentenced in CF-2004-31 to a three-year term and that term would be suspended and unsupervised, but if he were terminated from Drug Court, then a five-year sentence of imprisonment would be imposed. In resolution of the Burglary II offense in CF-2006-90, Long’s plea agreement required entry of a five-year suspended sentence if he successfully completed Drug Court, but if he were to be terminated from the Drug Court Program, then imposition of a ten-year sentence of imprisonment would be required.

Four months after Long’s admission to Drug Court, the State filed an application in each of his cases to terminate him from the program. Following an evidentiary hearing on those applications, the Honorable Gale Smith, Associate District Judge, on May 10, 2007, terminated Long from Drug Court. Upon termination, the State asked Judge Smith to impose the sentences agreed to within those plea agreements admitting Long to Drug Court. Judge Smith denied that request and sentenced Long to concurrent terms of three years imprisonment in both CF-2004-31 and CF-2006-90.

On May 17, 2007, the State filed a Motion for Judicial Review of Sentence in each of Long’s cases asking the District Court to conduct a judicial review of the defendant’s sentence under the authority of 22 O.S.2001, § 982a, and modify the sentence to reflect the plea agreement filed on December 11, 2006. Finding that the sentences to which Long agreed had to be imposed, Judge Smith, on June 12, 2007, vacated his May 10th sentencing orders and sentenced Long to consecutive terms of imprisonment of five years in CF-2004-31 and ten years in CF-2006-90.

Long then timely moved to withdraw his guilty plea in CF-2006-90. The District Court denied Long’s motion, and by Petition for Writ of Certiorari filed in Appellate Case No. C-2007-743, Long preserved his right to appeal that order as well as his conviction in CF-2006-90 and the order terminating him from Drug Court. By Petition in Error filed in Appellate Case No. F-2007-636, Long preserved his right of appeal from the Drug Court termination order and the revocation in CF-2004-31.

We now join Long’s appeals for the sole purpose of their disposition in a single Summary Opinion; however, the appeals shall not otherwise be consolidated and shall remain separate and distinct as concerns all further filings. In each of these appeals, Long has filed a Brief-in-Chief. Each brief raises three propositions of error that challenge only the District Court’s sentencing orders of June 12, 2007:

I. The imposition of a second judgment and sentence constituted double jeopardy.

II. The District Court did not have jurisdiction to enter a second judgment and sentence.

III. The District Court did not have the authority to increase Mr. Long’s sentence under 22 O.S. § 982a.

Long’s Proposition III correctly observes that 22 O.S.2001, § 982a, does not provide the State with a vehicle for obtaining an upward modification of a sentence previously entered. Section 982a is limited to only downward modifications of sentence to properly qualifying defendants. Nevertheless, despite the State’s mistaken reliance upon Section 982a and contrary to Long’s arguments in Propositions I and II, the District Court retained authority to enter valid sentencing and revocation orders where its earlier orders were void or voidable as having been outside the range of punishment authorized by law.

Because judgments or sentences void on their face may be set aside after jeopardy has attached, Long’s double jeopardy claim in Proposition I will not defeat the trial court’s authority to impose a lawful sentence in place of one that was void. Long’s argument in Proposition II, relying principally upon LeMay v. Rahhal, is also untenable. In LeMay, the trial court in the first instance pronounced a lawful sentence, and because that sentence was one authorized by law, the trial court was prohibited from subsequently changing the sentence and imposing a second sentence. Under the Oklahoma Drug Court Act, the only authorized punishment upon termination from a drug court program is that to which the parties agreed at admission; provided however, that such punishment is itself within the range of that authorized by law for the offense or circumstances presented.

In Petitioner’s case of CF-2006-90, his July 21, 2006, offense of Burglary in the Second Degree, After Former Conviction of a Felony, carried a statutory range of punishment of four years to life. Consequently, the ten-year sentence to which Long agreed if terminated from Drug Court was a permissible sentence, and the Act therefore required the trial court to impose that sentence upon termination. On the other hand, in CF-2004-31, when Long was admitted to Drug Court, he had already been sentenced in that case on April 12, 2004, by Judge Cabaniss. Judge Cabaniss had imposed a sentence of five years in DOC custody, but suspended execution of that sentence except for that time necessary for Long to be placed within and complete DOC’s substance abuse program at the Charles E. Bill Johnson Correctional Center.

After Long had completed this substance abuse program and had begun the probated period of his sentence, the State moved to revoke the unexecuted portion of his sentence. Consequently, Case No. CF-2004-31 came before the District Court only as a revocation proceeding, and the District Court’s authority was therefore limited to either denying the motion to revoke or granting the motion to revoke in whole or in part. Once Long was admitted to Drug Court in resolution of the motion to revoke, the District Court’s authority to revoke became further restricted by the agreement that admitted Long to Drug Court. These latter restrictions confined the trial court to the options set out in the agreement for Long’s success or failure in the program, but only to the extent that those options were viable ones under the law.

As previously noted, under the Drug Court admission agreement, Long was to be sentenced to five years imprisonment in CF-2004-31 if he was terminated from Drug Court. The apparent intent was to have Long serve out his five-year prison sentence if terminated, as Long had already been sentenced in CF-2004-31 and could not be sentenced a second time. Accordingly, Judge Smith erred in attempting to resentence Long. Instead, Judge Smith should have entered a revocation order that carried out the agreement’s intent by revoking in full the remaining unserved portion of Appellant’s existing, five-year prison sentence of April 12, 2004.

We therefore find that the following orders should be entered in disposition of these appeals.

DECISION

In F-2007-636, the sentence imposed on June 12, 2007, in the District Court of Washita County, Case No. CF-2004-31, is hereby VACATED and the matter REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS to determine the total number of days served in custody under that five-year sentence of April 12, 2004, and thereby determine the unserved term remaining, and upon doing so, enter an order of revocation that commands execution of the unserved portion of sentence.

In C-2007-743, appealing from proceedings in the District Court of Washita County, Case No. CF-2006-90, CERTIORARI IS DENIED AND THE JUDGMENT AND SENTENCE IS AFFIRMED; provided however, the District Court is directed to enter a corrected journal entry of Judgment and Sentence in CF-2006-90 stating that Long’s conviction for Burglary in the Second Degree has been enhanced by a prior felony conviction. Within sixty days from the filing of this decision, the District Court shall file a certified copy of its corrected Judgment and Sentence with the Clerk of this Court in C-2007-743.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), MANDATE IS ORDERED ISSUED upon the filing of this decision.

APPEARANCES AT TRIAL

GERALD WEIS
P.O. BOX 1494
CLINTON, OKLAHOMA 73601
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL

TASHA A. STEWARD
OKLA. INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR APPELLANT/PETITIONER

DENNIS SMITH,
DISTRICT ATTORNEY

W.A. DREW EDMONDSON,
ATTORNEY GENERAL OF OKLAHOMA

STEPHANIE JONES, THEODORE M. PEEPER (F-2007-636)
ASSISTANT DISTRICT ATTORNEY

JAY SCHNIEDERJAN (C-2007-743)
ASSISTANT ATTORNEYS GENERAL
WASHITA COUNTY COURTHOUSE
111 EAST MAIN STREET
CORDELL, OKLAHOMA 73632
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEY FOR APPELLEE/RESPONDENT

OPINION BY: CHAPEL, J.

Lumpkin, P.J.: Concur in Results

C. Johnson, V.P.J.: Concur

A. Johnson, J.: Concur

Lewis, J.: Concur

[W]hile the trial court, during the term of the original judgment and sentence, could have revoked the [five-year] suspended sentence in whole or in part, up to five years, it was without authority to order additional suspended time past the term of the original judgment and sentence.

Just as a defendant’s suspended sentence may not be lengthened by intervening revocation orders occurring within the original term of sentence, a suspended sentence may not be shortened by intervening revocations. Hemphill v. State, 1998 OK CR 7, 11 6-9, 954 P.2d 148, 150-51 (citation and footnote omitted).

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Footnotes:

1. The Oklahoma Drug Court Act specifically permits use of drug court programs in the context of revocation proceedings. See 22 O.S.2001, § 471.8.
2. In relevant part, Section 982a, states: A. Any time within twelve (12) months after a sentence is imposed or within twelve (12) months after probation has been revoked, the court imposing sentence or revocation of probation may modify such sentence or revocation by directing that another penalty be imposed, if the court is satisfied that the best interests of the public will not be jeopardized. This section shall not apply to convicted felons who have been in confinement in any state prison system for any previous felony conviction during the ten-year period preceding the date that the sentence this section applies to was imposed. 22 O.S.2001, § 982a(A).
3. Further, without the consent of the district attorney, this section shall not apply to sentences imposed pursuant to a plea agreement. 22 O.S.Supp.2007, § 982a(A) (effective July 1, 2007).
4. Robertson v. State, 1995 OK CR 6, ¶¶ 8-9, 888 P.2d 1023, 1025.
5. Davis v. State, 1993 OK CR 3, ¶ 13, 845 P.2d 194, 198.
6. Bumpus v. State, 1996 OK CR 52, ¶ 15, 925 P.2d 1208, 1212.
7. Hemphill v. State, 1998 OK CR 7, ¶¶ 6-9, 954 P.2d 148, 150-51.
8. See 22 O.S.2001, § 471.7(E).
9. See 22 O.S.2001, § 471.7(G).
10. Fields v. Driesel, 1997 OK CR 33, ¶ 22, 941 P.2d 1000, 1005.
11. 22 O.S. Supp. 1996, § 991b.

Oklahoma Statutes citations:

• 22 O.S. 471.8 - Oklahoma Drug Court Act
• 22 O.S. 982a(A) - Modification of Sentence
• 22 O.S. Supp. 2007 982a(A) - Modification of Sentence
• 22 O.S. Supp. 1996 991b - Revocation of Suspended Sentences
• 21 O.S. 1436(2) - Burglary in the Second Degree
• 21 O.S. Supp. 2005 51.1(A)(2) - Burglary in the Second Degree

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:

• Robertson v. State, 1995 OK CR 6, I 8-9, 888 P.2d 1023, 1025
• Davis v. State, 1993 OK CR 3, I 13, 845 P.2d 194, 198
• Bumpus v. State, 1996 OK CR 52, I 15, 925 P.2d 1208, 1212
• LeMay v. Rahhal, 1996 OK CR 21, 917 P.2d 18
• Hagar v. State, 1999 OK CR 35, I 11, 990 P.2d 894, 898
• Fields v. Driesel, 1997 OK CR 33, I 22, 941 P.2d 1000, 1005
• Hemphill v. State, 1998 OK CR 7, I 6-9, 954 P.2d 148, 150-51