Mark A. Sanders v The State of Oklahoma
F 2010-1191
Filed: Mar. 30, 2012
Not for publication
Prevailing Party: Mark A. Sanders
Summary
Mark A. Sanders appealed his conviction for possession of a controlled substance and carrying a weapon. His conviction was originally deferred, but the court later decided to send him to prison for five years after he was accused of committing a new crime, murder. The court used this new crime to speed up his sentencing. Sanders argued that the court should not have considered his new conviction since it wasn't final yet and that it was wrong for them to use information from another case without proper evidence. The Court of Criminal Appeals agreed with Sanders and found that the trial court made a mistake by taking notice of the new conviction. They reversed his sentence and sent it back to the lower court for a new decision. No judges publicly disagreed with this opinion.
Decision
The acceleration of Appellant's deferred sentence in Oklahoma County District Court Case No. CF-2005-6643 is REVERSED and REMANDED for further proceedings consistent with this Order. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon the filing of this decision.
Issues
- Was there reversible error by the trial court taking judicial notice of Appellant's conviction?
- Did the trial court lack jurisdiction to base Appellant's acceleration on an untimely amendment to the application to accelerate?
Findings
- the court erred
- the acceleration of Appellant's deferred sentence is reversed and remanded
F 2010-1191
Mar. 30, 2012
Mark A. Sanders
Appellantv
The State of Oklahoma
Appellee
v
The State of Oklahoma
Appellee
SUMMARY OPINION
Appellant, Mark A. Sanders, pled guilty on July 25, 2006, in Oklahoma County District Court Case No. CF-2005-6643 to Count 1 – Possession of a Controlled Dangerous Substance and Count 2 – Carrying a Weapon. On February 2, 2007, the Honorable Jerry D. Bass, District Judge, deferred Appellant’s sentence for two years until February 1, 2009, with rules and conditions of probation. The State filed an application to accelerate Appellant’s deferred sentence on July 20, 2007, alleging Appellant (1) failed to pay supervision fees and (2) failed to attend NACOK classes. On January 5, 2010, the application to accelerate was amended to include the allegation that Appellant committed the new crime of murder in the first degree as alleged in Oklahoma County District Court Case No. CF-2008-6281. Following an acceleration hearing before the Honorable Donald L. Deason, District Judge, on December 10, 2010, Appellant was sentenced to five years imprisonment. The sentence was ordered to run concurrently with District Court Case No. CF-2008-6281. Appellant appeals from the acceleration of his deferred sentence.
On appeal Appellant argues (1) that the trial court committed reversible error by taking judicial notice of Appellant’s conviction, and (2) that the trial court lacked jurisdiction to base Appellant’s acceleration on an untimely amendment to the application to accelerate. Finding merit to Appellant’s first proposition of error, we do not find it necessary to address the remaining proposition of error.
At the acceleration hearing the trial judge took judicial notice of Appellant’s new conviction in District Court Case No. CF-2008-6281. Judge Deason stated that he presided over the trial in Case No. CF-2008-6281 and heard all of the evidence. Nothing further was offered by the State; the State rested. Appellant argues that the trial court was wrong to take judicial notice of the fact that Appellant committed a new crime during his probation and cites Linscome v. State, 1978 OK CR 95, 584 P.2d 1349, in support of this argument. Appellant did not make any objection to the acceleration proceeding. We will, therefore, review for plain error. To be entitled to relief under the plain error doctrine, Appellant must prove that an error occurred, that the error is plain and obvious, and that the error affected Appellant’s substantial rights. Seabolt v. State, 2006 OK CR 50, ¶ 4, 152 P.3d 235.
A suspended sentence cannot be revoked solely on the basis of a subsequent conviction which has not become final. When the State cannot show the finality of a judgment and sentence relied on as evidence to accelerate a deferred sentence, the State must prove each element of the offense alleged as a violation since such proof by a preponderance of the evidence would withstand a collateral attack even if a conviction for the same offense were reversed on appeal. Stoner v. State, 1977 OK CR 212, ¶ 4-6, 566 P.2d 142. The Judgment and Sentence in CF-2008-6281 was not shown to be a final judgment and sentence. Further, in Linscome v. State, 1978 OK CR 95, ¶ 2-7, 584 P.2d 1349, we recognized three requisites for proper judicial notice: First, the matter must be one of common knowledge (although it does not have to be universally known); second, the matter must be settled beyond doubt – if there is any uncertainty about the matter then evidence must be taken; and third, the knowledge must exist within the jurisdiction of the court. Addressing the second factor, we held that no matter put in issue by the pleadings can be considered undisputed for purposes of judicial notice. In the present case, as in Linscome, the application to accelerate the deferred sentence put into issue the question of whether the appellant had violated the terms of his suspended sentence by committing a new offense.
In Linscome we held that it was error for the trial court to take judicial notice of evidence presented in another trial as the State was obligated to prove the facts since the appellant did not stipulate to the evidence of the new crime. There was no stipulation in the present case. Therefore, as in Linscome, it was error for the District Court to accelerate Appellant’s deferred sentence solely by taking judicial notice of evidence heard in another case. This error constitutes plain error requiring reversal.
In its Answer Brief, the State acknowledges that Linscome may appear inconsistent with the trial court’s decision in this case and requests that to the extent Linscome would require reversal in this case, it should be expressly overruled. We decline to do so.
DECISION
The acceleration of Appellant’s deferred sentence in Oklahoma County District Court Case No. CF-2005-6643 is REVERSED and REMANDED for further proceedings consistent with this Order. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon the filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE DONALD L. DEASON, DISTRICT JUDGE
APPEARANCES AT APPEARANCES ON APPEAL ACCELERATION HEARING
DAVID MCKENZIE
PAUL M. CLARK
JACQUI FORD
ASSISTANT PUBLIC DEFENDER
ASSISTANT PUBLIC DEFENDERS
OKLAHOMA COUNTY PUBLIC
OKLAHOMA COUNTY PUBLIC
DEFENDER’S OFFICE
DEFENDER’S OFFICE
611 COUNTY OFFICE BUILDING
611 COUNTY OFFICE BUILDING
320 ROBERT S. KERR AVENUE
320 ROBERT S. KERR, #611
OKLAHOMA CITY, OK 73102
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT
COUNSEL FOR APPELLANT
PAM KIMBROUGH
E. SCOTT PRUITT
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
320 ROBERT S. KERR, #505
JARED ADEN LOOPER
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE
COUNSEL FOR THE STATE
OPINION BY: A. JOHNSON, P.J.
LEWIS, V.P.J.: Concur
LUMPKIN, J.: Concur
C. JOHNSON, J.: Concur
SMITH, J.: Concur
Footnotes:
- Linscome v. State, 1978 OK CR 95, 584 P.2d 1349.
- Seabolt v. State, 2006 OK CR 50, IT 4, 152 P.3d 235.
- Stoner v. State, 1977 OK CR 212, 119 4-6, 566 P.2d 142.
- Linscome v. State, 1978 OK CR 95, 119 2-7, 584 P.2d 1349.
- Okla. Stat. tit. 22 § 18.
Oklahoma Statutes citations:
No Oklahoma statutes found.
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:
- Linscome v. State, 1978 OK CR 95, 584 P.2d 1349
- Seabolt v. State, 2006 OK CR 50, 152 P.3d 235
- Stoner v. State, 1977 OK CR 212, 566 P.2d 142
- Linscome v. State, 1978 OK CR 95, 584 P.2d 1349