William Curtis Box v The State Of Oklahoma

F-2017-1301

Filed: May 23, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

William Curtis Box appealed his conviction for Aggravated Domestic Assault and Battery. Conviction and sentence were upheld by the court. Judge Rowland dissented. In this case, Box had a deferred judgment for ten years after being found guilty. He was supposed to follow certain rules, but he committed a new crime called Obstructing an Officer. The state wanted to move his case along, saying he broke his probation rules. Box agreed to this, but later tried to turn back his agreement and said the court shouldn't have accelerated his judgment because no specific probation rules were filed. The court explained that even without specific rules, everyone knows they shouldn't commit new crimes while on probation. The court looked at past decisions and concluded that Box’s new crime justified the court's action to accelerate his judgment. They decided that his punishment of two years in prison (with time suspended) was appropriate. The court rejected all of Box's arguments against the acceleration, affirming the decision made by Judge Gray.

Decision

The acceleration of Appellant's deferred judgment in McClain County District Court Case No. CF-2015-181 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• was the acceleration of Appellant's deferred judgment justified without signed rules and conditions of probation?
• did the trial court err in denying Appellant's motion to withdraw his stipulation to the State's application to accelerate?
• is Appellant's sentence excessive in the context of an acceleration appeal?

Findings

• Proposition I is without merit.
• Proposition II is without merit.
• Proposition III is without merit.
• The acceleration of Appellant's deferred judgment is affirmed.

F-2017-1301

May 23, 2019

William Curtis Box

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant appeals from the acceleration of his deferred judgment in McClain County District Court Case No. CF-2015-181. Appellant was found guilty by a jury of Aggravated Domestic Assault and Battery, in violation of 21 O.S.2011, § 646(2). Following an October 7, 2016, sentencing hearing the Honorable Charles N. Gray, Associate District Judge, entered an order deferring judgment for ten years, with Appellant ordered to serve the first ninety days in the county jail. On February 13, 2017, the State filed an Application to Accelerate Deferred Judgment alleging Appellant violated the rules^1 and conditions of probation when he committed the new crime of Obstructing an Officer, as alleged in McClain County District Court Case No. CM-2017-66. Appellant stipulated to the application and following a sentencing hearing, Judge Gray accelerated Appellant’s deferred judgment to a conviction and sentenced Appellant to two years imprisonment, with all time suspended. Appellant appeals from the acceleration of his deferred judgment.

Appellant argues in Proposition I this acceleration must be reversed because no rules and conditions of probation were signed in this case and filed with the Clerk of the District Court. In 1969 and 1970 this Court decided Madden v. Faulkner, 1969 OK CR 69, 450 P.2d 860 and In re Collyar, 1970 OK CR 48, 476 P.2d 354. Appellant relies on these cases in addition to Demry v. State, 1999 OK CR 31, 986 P.2d 1145. Both Madden and Collyar granted relief when rules and conditions of probation were not filed. In 1971 this Court overruled these decisions in part with Brooks v. State and Anderson v. State by allowing revocation based on a new felony crime where no rules and conditions of probation were filed. Brooks v. State, 1971 OK CR 199, 1 3, 484 P.2d 1333; Anderson v. State, 1971 OK CR 386, 3-10, 489 P.2d at 798-99.^1

Appellant relies heavily on Collyar but, as discussed in Anderson, Collyar is distinguishable from Appellant’s situation. The probationer in Collyar was revoked for associating with disreputable persons and using illegal drugs. In re Collyar, 1970 OK CR 48, 1 2, 476 P.2d at 355-56. Similar to Appellant, the probationer in Anderson was revoked for committing a new crime. Anderson, 1971 OK CR 386, I 9, 489 P.2d at 799. In Anderson this Court held there are inherent conditions which must of necessity exist and one of these conditions is that the probationer will not further violate any laws. Id. at 11 4-5. The Court went on to adopt a statement found in Whitehead v. United States, 155 F.2d 460 (CA 6, 1946):

It is, however, universal practice, everywhere understood, that the minimum requirement for the continuance of judicial grace is that the defendants shall not, during the probationary period, again commit a felony. This, every defendant undoubtedly understands when seeking or accepting probation. Without such condition the very term ‘probation’ is meaningless, and the appellant does not contend that he was in any doubt as to it being a condition.^1

The failure to file rules and conditions of probation is a rare issue. This Court published four cases on this issue from 1969 to 1971 and the next published case addressing this issue was Demry which was handed down August 25, 1999. Demry analyzed and addressed each of the four cases handed down from 1969 to 1971.^1

Certainly, the appellant knew that he could not commit another crime and retain his probationary status. The case would bear a different aspect had the appellant’s probation been revoked for some minor infraction of the terms or conditions upon which probation was based. Anderson, 1971 OK CR 386, II 3-10, 489 P.2d at 798.

A similar issue was addressed by this Court in Demry v. State, 1999 OK CR 31, 986 P.2d 1145. In Demry, this Court analyzed and addressed the above cases relied upon by Appellant. Both parties rely on Demry and claim it supports their positions. A reading of Demry makes it clear Appellant’s reliance on Demry and Appellant’s claims that Demry is clearly in Appellant’s favor are mistaken. Appellant mischaracterizes this Court’s holding in Demry and draws the incorrect conclusions based on the reasoning found in Demry. Demry held the following:

[W]e find the revocation of Appellant’s suspended sentences to be proper because while released on a suspended sentence, Appellant committed the same offense for which he received the previous orders of suspension. This Court is not prepared to hold it to be inherent that a person shall not commit any misdemeanor during a period of suspension. Obviously, misdemeanor offenses vary greatly and we will not create an arbitrary list of which misdemeanors justify revocation and which ones do not. However, we do hold a suspended sentence for a misdemeanor contains the inherent condition that the person shall not commit the same misdemeanor during the period of suspension. Demry, 1999 OK CR 31, II 20-21, 986 P.2d at 1148.

Contrary to Appellant’s arguments, Demry does not hold the only misdemeanor that may be the basis of an acceleration is the same misdemeanor for which you are on probation. Demry held revocation based on a new misdemeanor crime was proper without rules and conditions of probation when the probationer was revoked for committing the same misdemeanor crime the probationer was placed on probation for committing. Id. The Court in Demry declined to address fact situations not present in Demry and did not specify or limit which misdemeanor crimes justify acceleration without rules and conditions of probation having been filed. Id.

Based on the reasoning in Demry and Anderson, Appellant’s deferred judgment for a felony Aggravated Assault and Battery contained the inherent condition Appellant shall not commit the misdemeanor crime of Obstructing. As a result, based on the facts in this case acceleration of Appellant’s deferred judgment for his misdemeanor act of obstructing was proper. Id. Proposition I is without merit.

In his second proposition Appellant maintains the trial court erred in denying his motion to withdraw his stipulation to the State’s application to accelerate. Appellant cites no controlling authority allowing the withdrawal of a stipulation to an application to accelerate. Appellant relies on appeals in cases dealing with pleas of guilty in an original criminal prosecution and this Court’s rule 4.2(A) which also deals with pleas to original charges resulting in predicate convictions and/or orders deferring judgment. A stipulation to an application to accelerate is not the same thing and does not give rise to the same constitutional concerns. There is no authority or procedure to attempt to withdraw a stipulation to an application to accelerate or to appeal the denial of such a motion. See Burnham v. State, 2002 OK CR 6, II 6-8, 43 P.3d 387, 389-90; Rule 1.2(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). Appellant has not established a right to an appeal from the denial of a motion to withdraw a stipulation to an application to accelerate a deferred judgment. As a result, Proposition II is without merit.

Proposition III argues Appellant’s sentence is excessive. Appellant’s argument is inappropriate for an acceleration appeal. The scope of review of an acceleration proceeding is limited to the validity of the acceleration order. Rule 1.2(D)(5)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019); Gonseth v. State, 1994. OK CR 9, 871 P.2d 51. Sentencing is not proper for consideration within the context of an acceleration appeal and cannot be raised within the context of an acceleration appeal such as the one filed here. Whitaker v. State, 2015 OK CR 1, I 6, 341 P.3d 87, 89. Appellant’s excessive sentence arguments have no bearing on whether he violated the terms and conditions of his probation or whether his probation violation would justify the District Court’s acceleration of his deferred sentence. Id. at 12. Proposition III is without merit.

A trial court’s order of acceleration will not be reversed unless there is an abuse of discretion reflected in the record. Gill v. State, 1974 OK CR 74, I 6, 521 P.2d 407, 408. 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, I 5, 780 P.2d 1181, 1183. Appellant has not shown an abuse of discretion. The facts presented in this case support Judge Gray’s decision.

DECISION

The acceleration of Appellant’s deferred judgment in McClain County District Court Case No. CF-2015-181 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. 1 The failure to file rules and conditions of probation is a rare issue. This Court published four cases on this issue from 1969 to 1971 and the next published case addressing this issue was Demry which was handed down August 25, 1999. Demry analyzed and addressed each of the four cases handed down from 1969 to 1971.
2. 2 See Burnham v. State, 2002 OK CR 6, II 6-8, 43 P.3d 387, 389-90; Rule 1.2(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019).
3. 3 Rule 1.2(D)(5)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019); Gonseth U. State, 1994. OK CR 9, 871 P.2d 51.
4. 4 Id.
5. 5 Anderson v. State, 1971 OK CR 386, 3-10, 489 P.2d at 798-99; Demry U. State, 1999 OK CR 31, 986 P.2d 1145.
6. 6 Madden U. Faulkner, 1969 OK CR 69, 450 P.2d 860.
7. 7 Brooks v. State, 1971 OK CR 199, IT 3, 484 P.2d 1333, 1334.
8. 8 Id.
9. 9 Demry U. State, 1999 OK CR 31, I 21, 986 P.2d 1145, 1148.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 646.2 - Aggravated Domestic Assault and Battery
• Okla. Stat. tit. 21 § 701.8 - Revocation of Probation
• Okla. Stat. tit. 22 § 1.2 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 1.2(D)(5) - Conditions of Probation and Stipulations
• Okla. Stat. tit. 22 § 1.2(D)(5)(b) - Validity of Acceleration Order

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:

• Madden v. Faulkner, 1969 OK CR 69, 450 P.2d 860
• In re Collyar, 1970 OK CR 48, 476 P.2d 354
• Demry v. State, 1999 OK CR 31, 986 P.2d 1145
• Brooks v. State, 1971 OK CR 199, 484 P.2d 1333
• Anderson v. State, 1971 OK CR 386, 489 P.2d 798
• Whitaker v. State, 2015 OK CR 1, 341 P.3d 87
• Gonseth v. State, 1994 OK CR 9, 871 P.2d 51
• Burnham v. State, 2002 OK CR 6, 43 P.3d 387
• Gill v. State, 1974 OK CR 74, 521 P.2d 407
• Walker v. State, 1989 OK CR 65, 780 P.2d 1181