Toni Jo Wallace v The State Of Oklahoma

RE-2003-902

Filed: Aug. 18, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Toni Jo Wallace appealed her conviction for violating her probation. Conviction and sentence were partially affirmed, but her sentence in one case was changed from five years to one year. Judge Stan L. Lumpkin dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the order of the District Court of Ottawa County revoking Appellant's suspended sentences in Case Nos. CF-2000-225, CF-2000-524 and CF-2002-1 should be, and is hereby, AFFIRMED, but Appellant's sentence in Case No. CF-2000-225 should be, and is hereby, MODIFIED from a term of five (5) years to a term of one (1) year. IT IS SO ORDERED.

Issues

• Was there an abuse of discretion by the trial court in revoking the suspended sentences?
• Did the trial court fail to enunciate the reason for the revocation?
• Was the revocation of all sentences in full, rather than imposing intermediate punishment, an abuse of discretion?
• Was the revocation in full of the five-year suspended sentence in CF-2000-225 shockingly excessive?
• Did the trial court err in ordering the revoked sentences in CF-2000-225 and CF-2000-524 to be served consecutively rather than concurrently as per the original plea agreement?

Findings

• the court did not err in revoking the suspended sentences
• the court did not err in revoking all the sentences in full rather than imposing intermediate punishment
• the revocation in full of the five-year suspended sentence in CF-2000-225 was excessive and an abuse of discretion
• the trial court erred in ordering the revoked sentences in CF-2000-225 and CF-2000-524 to be served consecutively; the sentence in CF-2000-225 was modified from five years to one year

RE-2003-902

Aug. 18, 2004

Toni Jo Wallace

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

The Appellant, Toni Jo Wallace, has appealed to this Court from the revocation of her suspended sentences in Case Nos. CF-2000-225, CF-2000-524, and CF-2002-1 in the District Court of Ottawa County, before the Honorable William E. Culver, Special Judge.

On September 21, 2000, in Case No. CF-2000-225, Appellant entered a plea of guilty to the one charge of Obtaining Merchandise By Means of Bogus Check, and sentencing was deferred for a period of five (5) years to run concurrent with CF-2000-524. Also on September 21, 2000, in Case No. CF-2000-524, Appellant entered a plea of guilty to Count 1 – Uttering a Forged Instrument; Count 2 – Uttering a Forged Instrument; and Count 7 – Unlawful Possession of Controlled Dangerous Substance, and sentencing was deferred for a period of five (5) years on each count, with Count 1 to be served consecutive, and Counts 2 and 7 to be served concurrently with each other and with Case No. CF-2000-225.

On December 6, 2002, in Case No. CF-2002-1, Appellant entered a plea of guilty to one count of Conspiracy to Commit Forgery, and she was convicted and sentenced to a term of five (5) years, with the sentence suspended and ordered to be served consecutively with Case No. CF-2000-524. Also on December 6, 2002, Appellant stipulated to motions to accelerate her sentencing in Case Nos. CF-2000-225 and CF-2000-524.

In Case No. CF-2000-225, Appellant was convicted of Obtaining Merchandise By Bogus Check and was sentenced to a term of five (5) years, with the sentence suspended. In Case No. CF-2000-524, Appellant was convicted of only Count 1 – Uttering a Forged Instrument and was sentenced to a term of five (5) years, with the sentence suspended and ordered to be served consecutively with Case No. CF-2000-225.

On May 7, 2003, the State filed the current petitions to revoke Appellant’s suspended sentences alleging Appellant violated probation (1) by committing the new crimes of Count 1 – Possession of CDS in Presence of Minor Child Under 12, and Count 2 – Attempt to Manufacture CDS, as charged in Ottawa County District Court Case No. CF-2003-104; and (2) by failing to pay fines and costs.

On July 28, 2003, the hearing on the State’s petitions to revoke was held before Judge Culver, in conjunction with the preliminary hearing in Case No. CF-2003-104. At the conclusion of the evidence, Judge Culver found probable cause to bind Appellant over for trial on the charges in Case No. CF-2003-194. After hearing arguments on the revocations, Judge Culver found Appellant had violated probation and revoked her five (5) year suspended sentences in all three cases.

In this appeal, Appellant asserts four (4) propositions of error. The first proposition contends the trial court abused its discretion in revoking the suspended sentences and failed to enunciate the reason for the revocation. The second proposition contends the trial court abused its discretion in revoking all the sentences in full rather than imposing intermediate punishment. The third proposition contends the revocation in full of the five-year suspended sentence in CF-2000-225 was shockingly excessive and an abuse of discretion. The fourth proposition contends the trial court erred in ordering the revoked sentences in CF-2000-225 and CF-2000-524 to be served consecutively when the original plea agreement was for the sentences to be served concurrently.

The decision to revoke a suspended sentence in whole or in part lies within the discretion of the trial court, and absent an abuse thereof the trial court’s decision will not be disturbed. Mack v. State, 1981 OK CR 160, T3, 637 P.2d 1262, 1263; Wallace v. State, 1977 OK CR 154, 17, 562 P.2d 1175, 1177. Appellant has not established that the District Court abused its discretion in finding that Appellant’s suspended sentences should be revoked, in finding sufficient reasons for the revocations, and in finding the suspended sentences should be revoked in full.

Both the State in its response and Appellant in her reply, correctly note the maximum sentence in Case No. CF-2000-225 should have been one (1) year in the County Jail, pursuant to 21 O.S.Supp.1993, § 1541.2. A sentence in excess of the statutory range of punishment is void and can be modified within the statutory range. Ex parte Custer, 200 P.2d 781, 782-83 (Okl.Cr. 1948); Scott v. State, 1991 OK CR 31, T14, 808 P.2d 73, 77; 22 O.S.2001, §§ 929, 1066. This Court finds Appellant’s sentence in Case No. CF-2000-225 should be modified from a term of five (5) years to one (1) year.

Finally, Appellant could have and should have asserted any error relating to the District Court running Appellant’s suspended sentences consecutively, in a direct appeal when Appellant’s sentencing was accelerated. Rule 1.2(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004). In an appeal from the revocation of suspended sentences, the scope of review is limited to the validity of the revocation order. Rule 1.2(D)(4), Rules, supra. Moreover, Appellant’s original plea agreement was for deferred sentencing and did not involve any judgment of guilt or imposition of sentences, which could be run concurrently or consecutively. O.S.2001, § 991c.

IT IS THEREFORE THE ORDER OF THIS COURT that the order of the District Court of Ottawa County revoking Appellant’s suspended sentences in Case Nos. CF-2000-225, CF-2000-524, and CF-2002-1 should be, and is hereby, AFFIRMED, but Appellant’s sentence in Case No. CF-2000-225 should be, and is hereby, MODIFIED from a term of five (5) years to a term of one (1) year.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 18th day of August, 2004.

CHARLES A. JOHNSON, Presiding Judge
GARY STEVE LUMPKIN, NOT PARTICIPATING Judge
LILE, Vice Presiding Judge
CHARLES S. CHAPEL, Judge
RETA M. STRUBHAR, Judge

ATTEST: Clerk

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Footnotes:

1. Okla. Stat. tit. 21 § 1541.2
2. Ex parte Custer, 200 P.2d 781, 782-83 (Okl.Cr. 1948)
3. Scott U. State, 1991 OK CR 31, T14, 808 P.2d 73, 77
4. 22 O.S.2001, §§ 929, 1066
5. Rule 1.2(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004)
6. Rule 1.2(D)(4), Rules, supra
7. O.S.2001, § 991c

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1541.2 (1993) - Maximum Sentence
• Okla. Stat. tit. 22 § 929 (2001) - Modification of Sentence
• Okla. Stat. tit. 22 § 1066 (2001) - Sentences
• Okla. Stat. tit. 22 § 991c (2001) - Deferred Sentencing

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:

• Mack v. State, 1981 OK CR 160, 3, 637 P.2d 1262, 1263
• Wallace v. State, 1977 OK CR 154, 17, 562 P.2d 1175, 1177
• Ex parte Custer, 200 P.2d 781, 782-83 (Okl.Cr. 1948)
• Scott U. State, 1991 OK CR 31, 14, 808 P.2d 73, 77