Sheila Diane Wren v The State Of Oklahoma

RE-2004-1033

Filed: Feb. 28, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Sheila Diane Wren appealed her conviction for possession of a controlled substance (methamphetamine). Her conviction and sentence were for four years in prison, but the execution of the sentence was suspended, meaning she didn't have to go to prison if she followed the rules of probation. Later, she did not follow the rules, which led to the revocation of her suspended sentence. The court found that she continued to use meth and didn't pay her fines. She argued that the court should not have revoked her entire sentence and that the court was wrong to impose a full four-year sentence since she had already served a part of it. The court agreed she had served some time but upheld the decision to revoke her suspended sentence, modifying it to reflect that she should serve the remaining time instead of the full four years. Judge Arlene Johnson dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the September 29, 2005, order of the District Court of Pottawatomie County, which revoked the order suspending execution of sentence in Case No. CF-2002-278, is AFFIRMED AS MODIFIED herein. Upon receipt of mandate, the District Court shall enter an Amended Order Revoking Suspended Sentence reflecting modifi- cation of its revocation order of September 29, 2005. The Amended Order Revoking Suspended Sentence shall be consistent with this Summary Order and shall (1) make appropriate findings, (2) order revocation of the entire remain- ing portion of the March 12, 2003, suspension order, and (3) direct the execution of the unserved remaining three years and three-hundred-and-thirty- five days of Appellant's sentence of imprisonment. IT IS THE FURTHER ORDER OF THIS COURT that within thirty (30) days from receipt of mandate, certified copies of the Amended Order Revoking Suspended Sentence shall be delivered to the Clerk of this Court; to the District Attorney for Pottawatomie County; to Jennifer Miller, Assistant Attorney General; to Danny G. Lohmann, counsel for Appellant; to Jim Rabon, Sentenc- ing Administrator for the Oklahoma Department of Corrections; and to the records officer at Appellant's place of confinement or supervision. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), MANDATE IS ORDERED ISSUED upon the filing of this decision. IT IS SO ORDERED.

Issues

• Was the District Court's revocation of Appellant's suspended sentence excessive under the facts of this case and subject to reversal or modification?
• Did the trial court have legal authority to revoke Ms. Wren's sentence and impose four years of incarceration given that she had previously served a thirty-day portion of her sentence?

Findings

• the trial court did not abuse its discretion in revoking Appellant's suspended sentence in full
• the District Court erred in ordering Appellant imprisoned for four years instead of modifying the sentence properly

RE-2004-1033

Feb. 28, 2006

Sheila Diane Wren

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

SUMMARY ORDER AFFIRMING REVOCATION OF SUSPENDED SENTENCE AS MODIFIED

In the District Court of Pottawatomie County, Case No. CF-2002-278, Appellant, while represented by counsel, entered a plea of nolo contendere to Possession of Controlled Dangerous Substance (Methamphetamine), After Former Conviction of a Felony, in violation of 63 O.S.2001, § 2-402. The Honorable Douglas L. Combs, District Judge, sentenced Appellant to a term of four (4) years imprisonment on March 12, 2003. Pursuant to a plea agreement, Judge Combs suspended execution of Appellant’s imprisonment conditioned upon her compliance with written terms of probation. Appellant failed to comply with her probation, and on October 29, 2003, the District Court sustained a Motion to Revoke Suspended Sentence by ordering the revocation of a thirty-day portion of the suspension order. On May 6, 2004, the State filed a second Motion to Revoke Suspended Sentence. This second motion asked that Appellant’s suspended sentence be revoked because Appellant had failed to abstain from consuming or possessing any controlled dangerous substance not prescribed to her by a licensed medical practitioner, and because Appellant had failed to pay court costs and fines as ordered. (O.R. 80.) On May 19, 2005, Appellant stipulated to these allegations. Upon finding that Appellant violated probation, Judge Combs delayed the decision of whether the suspension order should be revoked pending Appellant’s entry into a drug treatment program known as Clean-Start. On September 29, 2005, the parties again appeared upon the revocation matter. At this hearing, Appellant’s probation officer reported that on September 25th Appellant tested positive for methamphetamine. Judge Combs elected to revoke the suspension order in full, and in doing so, he entered a journal entry of his revocation order that stated, Defendant is hereby ordered imprisoned for a term of FOUR (4) YEARS. (O.R. 118) (emphasis in original). From the District Court’s latest revocation order, Appellant now appeals. She raises two propositions of error on appeal:

Proposition I
The District Court’s revocation of Appellant’s suspended sentence was excessive under the facts of this case and should be reversed or modified.

Proposition II
The trial court had no legal authority to revoke Ms. Wren and sentence her to four years incarceration when she only had three years and eleven months left on her suspended sentence.

After thoroughly considering Appellant’s propositions of error and the entire record before the Court, including the original record, transcripts, and briefs, the Court FINDS that the revocation order should be modified as hereinafter set forth.

In Proposition I Appellant contends that the trial court abused its discretion in revoking Appellant’s suspended sentence in its entirety rather than electing to retain a portion of Appellant’s probation for purposes of drug addiction treatment. Appellant’s Proposition I is without merit. It was for methamphetamine possession that Appellant was first placed upon probation. Nevertheless, despite the intervention of a probation period of more than two years, Appellant continued to use methamphetamines. In Demry U. State, 1999 OK CR 31, I 21, 986 P.2d 1145, 1149, this Court recognized the seriousness of repeating the very crime for which one had been placed on probation. [T]he decision to revoke the 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, IT 3, 637 P.2d 1262, 1264. Because Appellant’s history is sufficient to support revocation in full, the trial court’s decision to do so must be affirmed.

Appellant’s Proposition II asserts that because a thirty-day portion of Appellant’s four-year sentence had been previously executed due to a prior revocation order, the District Court erred in ordering Appellant imprisoned for four years. Appellant’s argument in Proposition II has merit. When a court revokes a suspended sentence, it does not modify the sentence in any regard other than to simply lift, either in whole or in part, the previously entered suspension order. See generally Hemphill v. State, 1998 OK CR 7, 1 9, 954 P.2d 148, 151 (a suspended sentence is neither lengthened nor shortened by intervening revocations); Robertson V. State, 1977 OK CR 74, I 4, 560 P.2d 1039, 1040 (holding that trial court was without authority to order additional suspended time past the term of the original judgment and sentence). A trial court’s authority in revocation proceedings is therefore limited to directing execution of the unexecuted portion of a sentence that has been conditionally suspended under terms of probation. In Appellant’s matter, by ordering Appellant imprisoned for a term of four (4) years when Appellant had previously served a thirty-day portion of her four-year sentence, the District Court effectively lengthened Appellant’s sentence by an additional month. Because Appellant had served thirty days of her sentence, there remained no more than three years and three-hundred-and-thirty-five days that were unexecuted and subject to revocation. Accordingly, the District Court’s revocation order must be modified as hereinafter set forth.

IT IS THEREFORE THE ORDER OF THIS COURT that the September 29, 2005, order of the District Court of Pottawatomie County, which revoked the order suspending execution of sentence in Case No. CF-2002-278, is AFFIRMED AS MODIFIED herein. Upon receipt of mandate, the District Court shall enter an Amended Order Revoking Suspended Sentence reflecting modification of its revocation order of September 29, 2005. The Amended Order Revoking Suspended Sentence shall be consistent with this Summary Order and shall (1) make appropriate findings, (2) order revocation of the entire remaining portion of the March 12, 2003, suspension order, and (3) direct the execution of the unserved remaining three years and three-hundred-and-thirty-five days of Appellant’s sentence of imprisonment.

IT IS THE FURTHER ORDER OF THIS COURT that within thirty (30) days from receipt of mandate, certified copies of the Amended Order Revoking Suspended Sentence shall be delivered to the Clerk of this Court; to the District Attorney for Pottawatomie County; to Jennifer Miller, Assistant Attorney General; to Danny G. Lohmann, counsel for Appellant; to Jim Rabon, Sentencing Administrator for the Oklahoma Department of Corrections; and to the records officer at Appellant’s place of confinement or supervision. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), MANDATE IS ORDERED ISSUED upon the filing of this decision.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 28th day of February, 2006.

CHARLES S. CHAPEL, Presiding Judge
GARY L. LUMPKIN, Vice Presiding Judge
CHARLES A. JOHNSON, Judge
ARLENE JOHNSON, Judge
DAVID B. LEWIS, Judge

ATTEST:
Michael Rochis Clerk

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Footnotes:

1. 63 O.S.2001, § 2-402
2. O.R. 80
3. Demry U. State, 1999 OK CR 31, ¶ 21, 986 P.2d 1145, 1149
4. Mack v. State, 1981 OK CR 160, ¶ 3, 637 P.2d 1262, 1264
5. Hemphill v. State, 1998 OK CR 7, ¶ 9, 954 P.2d 148, 151
6. Robertson v. State, 1977 OK CR 74, ¶ 4, 560 P.2d 1039, 1040

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 - Possession of Controlled Dangerous Substances
• Okla. Stat. tit. 22 § 991a - Revocation of Suspended Sentences
• Okla. Stat. tit. 22 § 982 - Authority of Court in Revocation Proceedings

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:

• Demry v. State, 1999 OK CR 31, I 21, 986 P.2d 1145, 1149
• Mack v. State, 1981 OK CR 160, IT 3, 637 P.2d 1262, 1264
• Hemphill v. State, 1998 OK CR 7, I 9, 954 P.2d 148, 151
• Robertson v. State, 1977 OK CR 74, I 4, 560 P.2d 1039, 1040