Janis Gale McAbee v The State of Oklahoma

RE-2003-455

Filed: May 3, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Janis Gale McAbee appealed her conviction for violating probation. Conviction and sentence were affirmed, but her misdemeanor sentence was corrected to one year instead of five years. Judge Johnson dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the order of the District Court of Pittsburg County revoking Appellant's suspended sentence in Case No. CF-2001-551 should be, and is hereby, AFFIRMED. The District Court is directed to correct Appellant's Judgment and Sentence to reflect that her sentence on Count 2 is one (1) year imprisonment. IT IS so ORDERED.

Issues

• Was there egregious police misconduct that justified suppressing the evidence obtained in the revocation hearing?
• Did the evidence supporting Appellant's revocation sufficiently establish a violation of probation despite contraband being found on shared premises?
• Was the District Court's revocation of Appellant's suspended sentence excessive given the circumstances of the case?
• Should the Judgment and Sentence be modified to accurately reflect the sentence imposed for Count 2?

Findings

• the court did not err in finding no egregious police misconduct warranting suppression of evidence
• the evidence was sufficient to support the revocation of Appellant's suspended sentence
• the revocation of Appellant's suspended sentence was not excessive under the circumstances
• the Judgment and Sentence should be corrected to reflect a one (1) year sentence on Count 2

RE-2003-455

May 3, 2004

Janis Gale McAbee

Appellant

v

The State of Oklahoma

Appellee

SUMMARY ORDER AFFIRMING REVOCATION OF SUSPENDED SENTENCE

The Appellant, Janis Gale McAbee, has appealed to this Court from the revocation of her suspended sentence in Case No. CF-2001-551 in the District Court of Pittsburg County, before the Honorable Steven Taylor, District Judge. The Judgment and Sentence in that case states that Appellant pled guilty to Count 1 – Unlawful Possession of Controlled Drug With Intent to Distribute, a felony; and Count 2 – Unlawful Possession of Drug Paraphernalia, a misdemeanor. She was sentenced to a term of five (5) years on each count, with the sentences to be served concurrently and suspended pursuant to rules and conditions of probation.

On November 21, 2002, the State filed a petition to revoke Appellant’s suspended sentence alleging Appellant had violated probation by committing the crimes of Count 1 – Trafficking in Illegal Drugs; Count 2 – Possessing Firearm While Committing a Felony; Count 3 – Unlawful Use of Police Radio; and Count 4 – Unlawful Possession of Drug Paraphernalia, all as charged in Pittsburg County District Court Case No. CF-2002-400.

On March 26, 2003, hearings were held before Judge Taylor on the petition to revoke, and on a motion to suppress evidence that had been filed by Appellant. After considering the evidence and arguments, Judge Taylor sustained the motion to suppress the evidence as to Case No. CF-2002-400. Judge Taylor further found that the exclusionary rule does not apply to the revocation proceeding in this case, because his conscience was not shocked and that there was not the permeation of injustice throughout the proceedings to cause the exclusionary rule to apply. After hearing the evidence and arguments in the revocation hearing, Judge Taylor found Appellant had violated probation and revoked her five (5) year suspended sentence. Appellant brings this appeal.

In this appeal, Appellant asserts four (4) propositions of error. The first proposition contends that the evidence adduced at the revocation hearing was obtained as a result of egregious police misconduct and therefore should have been suppressed. The second proposition contends that the evidence supporting Appellant’s revocation is insufficient when contraband is not found on the accused, but on the premises to which more than one person has access. The third proposition contends that the District Court’s revocation of Appellant’s suspended sentence was excessive under the facts of this case and should be reversed or modified. The fourth proposition contends that the Judgment and Sentence should be modified to accurately state the sentence imposed.

Absent egregious police misconduct, evidence illegally seized from a probationer is not barred by the exclusionary rule from revocation proceedings. Richardson U. State, 1992 OK CR 76, 841 P.2d 603. Judge Taylor did not err or abuse his discretion in finding that the acts of the sheriff’s deputies in this case were not egregious and do not shock the conscience. The evidence found in the house where Appellant was residing was more than sufficient to support the revocation of Appellant’s suspended sentence. Johnson V. State, 1988 OK CR 246, 1115, 6, 764 P.2d 530, 532. The revocation of Appellant’s suspended sentence, for probation violations that occurred less than one month after she received the suspended sentence, does not shock the conscience. Long v. State, 2003 OK CR 14, T6, 74 P.3d 105,107. Finally, as the State acknowledges, Appellant’s Judgment and Sentence should be corrected to reflect that the misdemeanor sentence on Count 2 should be one (1) year, instead of the five (5) year sentence shown on the Judgment and Sentence. 63 O.S.2001, § 2-405.

IT IS THEREFORE THE ORDER OF THIS COURT that the order of the District Court of Pittsburg County revoking Appellant’s suspended sentence in Case No. CF-2001-551 should be, and is hereby, AFFIRMED. The District Court is directed to correct Appellant’s Judgment and Sentence to reflect that her sentence on Count 2 is one (1) year imprisonment. IT IS so ORDERED.

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Footnotes:

1. Richardson U. State, 1992 OK CR 76, 841 P.2d 603.
2. Johnson V. State, 1988 OK CR 246, 1115, 6, 764 P.2d 530, 532.
3. Long v. State, 2003 OK CR 14, T6, 74 P.3d 105,107.
4. 63 O.S.2001, § 2-405.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for certain crimes
• Okla. Stat. tit. 63 § 2-405 (2001) - Misdemeanor punishments

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:

• Richardson v. State, 1992 OK CR 76, 841 P.2d 603
• Johnson v. State, 1988 OK CR 246, 764 P.2d 530
• Long v. State, 2003 OK CR 14, 74 P.3d 105