Frank V. Thomas v The State Of Oklahoma
RE-2005-1195
Filed: Jan. 4, 2007
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Frank V. Thomas appealed his conviction for Trafficking in Illegal Drugs (Cocaine Base). His conviction and sentence were originally ten years in prison, but part of that sentence was suspended. He later faced a revocation of his suspended sentence because he was accused of Domestic Abuse and violating a protective order. The court found that there was not enough evidence to support the Domestic Abuse claim, but Thomas did violate the protective order. However, this violation happened while he was trying to visit his son, which made it less serious. The court decided to revoke one year of his suspended sentence instead of more, allowing him to go back to probation after that year. Judge Arlene Johnson dissented.
Decision
IT IS THEREFORE THE ORDER OF THIS COURT that the November 21, 2005, revocation order of the District Court of Oklahoma County, in Case No. CF-1996-1282, is hereby MODIFIED to revoke one (1) year of the order suspending execution of sentence. Appellant shall be given credit for all time served under the District Court's revocation order. Upon discharging the revoked one-year period, Petitioner shall be returned to probation for the remainder of his sentence and remain subject to further revocation for any other violations of the terms of the District Court's suspension order. Upon receipt of mandate, the District Court shall enter such orders as are necessary to notify the Oklahoma Department of Corrections of this modification of revocation. As modified, the revocation order is in all other respects AFFIRMED. 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 there sufficient evidence to prove by a preponderance of the evidence that Mr. Thomas committed Domestic Abuse?
- Was the punishment excessive given the facts and circumstances of the case, including the vagueness of the Application to Revoke?
Findings
- the evidence was minimally sufficient to support the conclusion that Appellant committed Domestic Abuse
- the revocation order should be modified to revoke one (1) year of the order suspending execution of sentence
- the revocation order is affirmed in all other respects
RE-2005-1195
Jan. 4, 2007
Frank V. Thomas
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
ORDER MODIFYING PARTIAL REVOCATION OF SUSPENDED SENTENCE
In the District Court of Oklahoma County, Case No. CF-1996-1282, a jury returned a verdict finding Appellant guilty of Trafficking in Illegal Drugs (Cocaine Base) and setting punishment at ten (10) years imprisonment. Sentencing was delayed and the Department of Corrections (DOC) directed to perform an Offender Accountability Plan. Upon receipt of DOC’s report, the Honorable Roma McElwee, Special Judge, on August 15, 1997, imposed a ten-year sentence, but suspended all but the first five (5) years.
On September 26, 2005, the State filed an Application to Revoke Suspended Sentence. The Application alleged Appellant had violated his probation by committing an offense of Domestic Abuse and Violation of Protective Order. Following an evidentiary hearing, the Honorable Susan P. Caswell, District Judge, on November 21, 2005, revoked a three-year portion of the suspension order. Appellant appeals from this revocation order.
Appellant raises two propositions of error on appeal:
Proposition I: The State presented insufficient evidence to prove by a preponderance of the evidence that Mr. Thomas committed Domestic Abuse.
Proposition II: The punishment is excessive given all the facts and circumstances of this case, including the vagueness of the Application to Revoke, and the Court should reverse or modify the revocation order, pursuant to its statutory authority, if the revocation is affirmed.
After thoroughly considering Appellant’s propositions of error and the entire record before the Court, including the original record, transcript, and briefs, the Court FINDS that the order of revocation should be modified as hereinafter set forth. The evidence presented at the evidentiary hearing is minimally sufficient to support the District Court’s conclusion that Appellant committed the offense of Domestic Abuse. The evidence also reveals a technical violation of the complainant’s protective order; however, the evidence discloses that such violation resulted from Appellant attempting to exercise scheduled, court-ordered visitation privileges with his infant son. Moreover, the evidence showed Appellant’s contact with complainant was unplanned, very brief, and was terminated at Appellant’s own volition once it became apparent to him that complainant was not going to comply with the court’s visitation order. Considering these unique circumstances, this incident was insufficient to merit any significant punishment through revocation. Nevertheless, the District Court gave it considerable weight in determining the revocation order; thus, the Court believes the revocation order should be modified.
IT IS THEREFORE THE ORDER OF THIS COURT that the November 21, 2005, revocation order of the District Court of Oklahoma County, in Case No. CF-1996-1282, is hereby MODIFIED to revoke one (1) year of the order suspending execution of sentence. Appellant shall be given credit for all time served under the District Court’s revocation order. Upon discharging the revoked one-year period, Petitioner shall be returned to probation for the remainder of his sentence and remain subject to further revocation for any other violations of the terms of the District Court’s suspension order. Upon receipt of mandate, the District Court shall enter such orders as are necessary to notify the Oklahoma Department of Corrections of this modification of revocation. As modified, the revocation order is in all other respects AFFIRMED.
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 4th day of January 2007.
Charles S. Chapel, Presiding Judge
Gary L. Lumpkin, Vice Presiding Judge
Charles A. Johnson, Judge
Arlene Johnson, Judge
David B. Lewis, Clerk
Footnotes:
- Okla. Stat. tit. 22 § 982a.
- Moore v. State, 1982 OK CR 60, ¶¶ 4-6, 644 P.2d 1079, 1080-81.
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:
- Moore v. State, 1982 OK CR 60, 99 4-6, 644 P.2d 1079, 1080-81