Roland G. Torgerson, Jr. v The State Of Oklahoma

F-2018-167

Filed: May 16, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Roland G. Torgerson, Jr., appealed his conviction for Knowingly Concealing Stolen Property. His conviction and sentence were a five-year suspended sentence. Judge Kuehn dissented.

Decision

The order of the District Court of Washita County accelerating Appellant's deferred judgment and sentencing in Case No. CF-2015-134 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 there an abuse of discretion by the trial court in accelerating Torgerson's deferred judgment based solely on his failure to pay restitution and prosecution fees?
• Did Torgerson receive an excessive sentence after the acceleration of his deferred judgment and sentencing?

Findings

• the court did not err by accelerating Appellant's deferred judgment and sentencing based on his failure to pay restitution and prosecution fees
• the sentence imposed after acceleration is not excessive

F-2018-167

May 16, 2019

Roland G. Torgerson, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant, Roland G. Torgerson, Jr., appeals from the acceleration of his deferred judgment and sentencing in Case No. CF-2015-134 in the District Court of Washita County, by the Honorable Christopher S. Kelly, Associate District Judge. On November 17, 2015, Appellant entered a plea of nolo contendere to Knowingly Concealing Stolen Property, and sentencing was deferred for a period of three years, until November 16, 2018, under rules and conditions of probation. Appellant was ordered to pay his share of restitution in the amount of $432.00 by April 5, 2016. He was also ordered to pay District Attorney Prosecution Reimbursement Fees in the amount of $40.00 per month for two years, with the first payment due within 30 days.

On May 23, 2016, the State filed an application to accelerate Appellant’s deferred judgment and sentencing alleging he violated probation by failing to pay prosecution fees, and failing to pay his $432.00 share of reimbursement in full by April 5, 2016. After being continued several times, the acceleration hearing was conducted before Judge Kelly on March 7, 2017. Appellant waived his right to have a hearing on the matter, and stipulated that he had failed to pay restitution and DA prosecution fees as alleged in the application to accelerate. After entering his stipulation, Appellant asked that sentencing be set off for two months and Judge Kelly granted the request.

On May 10, 2017, and again on June 13, 2017, Appellant requested continuances of sentencing, which were granted by Judge Kelly. On August 29, 2017, Appellant again requested a continuance of sentencing. Judge Kelly granted the request and continued sentencing until January 23, 2018, but advised Appellant that if everything is not paid by that date, sentencing will occur. At none of these appearances did Appellant claim that he was unable to make the required payments.

On January 23, 2018, counsel appeared and asked for a continuance due to Appellant’s illness, which was granted by Judge Kelly until February 6, 2018. On February 6, 2018, the sentencing hearing was held before Judge Kelly. When asked for a recommendation as to sentencing, the State noted that the matter had been continued several times over the previous two years. The State also noted the balance still due in the case was $636.00, and that no payment had been made since an $80.00 payment was made in August of 2017. The State argued no progress was being made and no purpose would be served by continuing the matter again. The State asked Judge Kelly to grant the application to accelerate, and to convict and sentence Appellant to a five-year suspended sentence.

Counsel for Appellant announced that Appellant would like to testify. Appellant testified he was not employed and it was hard for him to find work other than little odd jobs. Appellant said he had broken his neck, crushed his foot, and dislocated his shoulder in 1999, and had been told not to work. Appellant testified he had been diligently trying to have his social security application approved for about a year, and believed it might be getting close. Appellant testified he had no money and owned a little property that might be valued at a couple thousand dollars. Appellant said he understood everything that was going on and was ready to deal with it. Counsel for Appellant argued it would be unconstitutional to accelerate Appellant for being poor and asked for a continuance of a couple of months to see if Appellant’s social security was approved so he could start making payments.

Judge Kelly considered the information presented and the fact Appellant had previously stipulated to the application to accelerate. Judge Kelly convicted and sentenced Appellant to a five-year suspended sentence. Appellant appeals asserting two propositions of error:

PROPOSITION I: THE TRIAL COURT ABUSED ITS DISCRETION BY ACCELERATING MR. TORGERSON’S DEFERRED JUDGMENT BASED SOLELY ON HIS ALLEGED FAILURE TO PAY RESTITUTION AND DISTRICT ATTORNEY’S PROSECUTION FEES, THEREBY VIOLATING MR. TORGERSON’S RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ART. II, SECTION 7 OF THE OKLAHOMA CONSTITUTION.

PROPOSITION II: MR. TORGERSON RECEIVED AN EXCESSIVE SENTENCE.

ANALYSIS

The standard of review in acceleration hearings is abuse of discretion. E.g. Whitaker v. State, 2015 OK CR 1, ¶ 5, 341 P.3d 87, 89. In Proposition I, Appellant claims Judge Kelly abused his discretion by accelerating Appellant’s deferred judgment and sentencing based on his alleged failure to pay restitution and district attorney prosecution fees. Judge Kelly accelerated Appellant’s deferred judgment and sentencing based on Appellant’s stipulation that he had violated terms and conditions of his probation by failing to pay restitution and district attorney prosecution fees. Appellant claims his stipulation did not contain a provision that he willfully or deliberately failed to pay the costs as alleged by the State. Appellant misapprehends his burden of proof. Once the State proves a probationer has failed to make required payments, the burden shifts to the probationer to prove that his failure to pay was not willful or that he has made sufficient bona fide efforts to pay. E.g. Winbush, III, v. State, 2018 OK CR 38, ¶ 7, 433 P.3d 1275, 1278. Appellant stipulated to the application to accelerate without qualification. Appellant did not offer any proof at the March 7, 2017, acceleration hearing that his failure to pay was not willful or that he had made sufficient bona fide efforts to pay. Therefore, Judge Kelly did not err or abuse his discretion by finding Appellant had violated terms and conditions of his probation as alleged in the application to accelerate. Whitaker, supra.

The record in this case clearly shows that Judge Kelly went to great lengths trying to keep Appellant from being sentenced, or to reduce his sentencing, in this acceleration proceeding. The record also shows that Appellant continuously failed or refused to abide by Judge Kelly’s orders, and failed or refused to make bona fide efforts to make his required payments. See e.g. Winbush, III, supra. Appellant never claimed that he was unable to make the payments, or that he was making bona fide efforts to pay, until the date he was being sentenced for his failures. Appellant testified he owned property valued at a couple thousand dollars but gave no reason why the property was not sold to pay the amount due. In addition, most of the reasons Appellant gives for not being able to work and not being able to pay were known to him prior to his acceptance of the deferred judgment and sentencing and his agreement to make the ordered payments. Finally, Appellant’s sentence after acceleration was suspended and he will be able to make payments. Based upon the facts and circumstances of this case, we cannot find that Judge Kelly abused his discretion by granting the application to accelerate Appellant’s deferred judgment and sentencing. Whitaker, supra. Proposition I is denied.

In Proposition II, Appellant is arguing that the five-year suspended sentence, imposed after his judgment and sentencing was accelerated, is excessive. The State correctly notes that because of the way this appeal was filed, Appellant’s argument is the proper subject of an application for post-conviction relief seeking an appeal out of time. Rule 2.1(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019). After acceleration of deferred judgment and sentencing, a defendant may challenge only errors in the acceleration proceeding, Rule 1.2(D)(5)(b), Rules, supra; or may, in addition to challenging the validity of the acceleration order, seek to withdraw his plea and thus challenge his judgment and sentence by certiorari appeal. Rule 1.2(D)(5)(c), Rules, supra; see Hausle v. State, 2017 OK CR 5, 394 P.2d 1278; Gonseth v. State, 1994 OK CR 9, 871 P.2d 51. Appellant, while represented by counsel, did not file a motion to withdraw his plea; but only filed a Notice of Intent to Appeal in accordance with Sections II and III of this Court’s Rules. The scope of review in this appeal will thus be limited to the validity of the acceleration order. Rule 1.2(D)(5)(b), Rules, supra. If Appellant feels he has been denied the opportunity to seek to withdraw his plea in this case through no fault of his own, his remedy is to file in the District Court an application for post-conviction relief requesting a certiorari appeal out of time. See Rule 2.1(E)(3), Rules, supra; see also Lewis v. State, 2001 OK CR 6, ¶¶ 5, 6, 21 P.3d 64, 64-65. Proposition II is denied.

DECISION

The order of the District Court of Washita County accelerating Appellant’s deferred judgment and sentencing in Case No. CF-2015-134 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.

¹ On the same day his Notice of Intent to Appeal was filed, Appellant filed in the District Court a pro se application to withdraw stipulation. (O.R. 82). Appeals relating to the revocation of probation are not brought by petition for writ of certiorari but by petition in error, after the filing of a notice of intent to appeal. See Burnham v. State, 2002 OK CR 6, 43 P.3d 387. Appellant’s pro se application to withdraw stipulation therefore is moot or merged with his notice of intent to bring this appeal.

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Footnotes:

1. Okla. Stat. tit. 22 § 1164
2. Okla. Stat. tit. 22 § 1175.3
3. Okla. Stat. tit. 22 § 1175.4
4. Okla. Stat. tit. 22 § 1175.5
5. Bearden v. Georgia, 461 U.S. 660 (1983)
6. Winbush v. State, 2018 OK CR 38
7. Hausle v. State, 2017 OK CR 5
8. Gonseth v. State, 1994 OK CR 9
9. Lewis v. State, 2001 OK CR 6
10. Burnham v. State, 2002 OK CR 6

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:

• Whitaker v. State, 2015 OK CR 1, I 5, 341 P.3d 87, 89
• Winbush, III v. State, 2018 OK CR 38, I 7, 433 P.3d 1275, 1278
• Hausle v. State, 2017 OK CR 5, 394 P.3d 1278
• Gonseth v. State, 1994 OK CR 9, 871 P.2d 51
• Lewis v. State, 2001 OK CR 6, II 5, 6, 21 P.3d 64, 64-65
• Burnham v. State, 2002 OK CR 6, 43 P.3d 387