Juston Dean Cox v The State Of Oklahoma

RE 2006-0482

Filed: Jun. 23, 2008

Not for publication

Prevailing Party: Juston Dean Cox

Summary

Juston Dean Cox appealed his conviction for multiple crimes, including concealing stolen property, second-degree burglary, and unauthorized use of a motor vehicle. The court revoked his suspended sentences, which originally were supposed to run at the same time (consecutively). The decision was to change these sentences to run at different times (consecutively). The Court found that the trial court went too far in changing the sentences and decided that the original concurrent sentences needed to be restored. The revocation of Juston Dean Cox's suspended sentences was upheld, but the cases had to be sent back to the District Court for resentencing. Judge Lumpkin agreed with the outcome, and all other judges on the panel supported the decision too, except for Judge C. Johnson who dissented.

Decision

The revocation of Juston Dean Cox's suspended sentences in Cleveland County District Court, Cases CF-1999-1837, CF-2000-377, CF-2002-1771 and CF-2003-761, is AFFIRMED but the cases are REMANDED to the District Court for resentencing in each case as set forth above. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there an error when the trial court ordered concurrently running sentences to be served consecutively?
• Did ineffective assistance of counsel deprive Appellant of a fair hearing on the applications to revoke?

Findings

• The court erred by changing the concurrent sentences to consecutive upon revocation.
• The claim of ineffective assistance of counsel was not upheld as the appellant did not meet the burden of proof.

RE 2006-0482

Jun. 23, 2008

Juston Dean Cox

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE: On April 23, 2004, Juston Dean Cox, Appellant, entered pleas of guilty in multiple cases in the District Court of Cleveland County. The Honorable Tom A. Lucas, District Judge, imposed the following sentences:

CF-1999-1837
Knowingly Concealing Stolen Property (3 counts)
Sentence: Five years imprisonment on each count to be served concurrently with each other and with CF-02-1771 and McLain County Case No. CF-04-39;

CF-2000-377
Second Degree Burglary (2 counts)
Sentence: Seven years imprisonment on each count, all suspended, to be served concurrently with each other and with other suspended terms during successful probation only;

CF-2002-1771
Unauthorized use of a Motor Vehicle (Count 1)
Knowingly Concealing Stolen Property (Count 2)
Sentence: Five years imprisonment on each count to be served concurrently with each other and with CF-02-1779 and McClain County Case No. CF-04-29;

CF-2003-761
Knowingly Concealing Stolen Property
Sentence: Five years imprisonment, all suspended, to be served concurrently with other suspended terms during successful probation only.

On April 21, 2005, nearly a year later, the Court modified the sentences in Cases CF-1999-1837 and CF-2002-1771 in accordance with 22 O.S. § 982A, allowing the balance of incarceration to be suspended provided Cox successfully completed a program called Cognitive Behavior and Thinking for a Change. Shortly after that modification, on September 9, 2005, the State filed an application to revoke Cox’s suspended sentences in Cases CF-1999-1837, CF-2000-377, CF-2002-1771 and CF-2003-761. On December 15, 2005, after a hearing on the matter, Judge Lucas granted the State’s application to revoke in each case. Cox appealed from this revocation and we have ordered the four appeals consolidated.

Cox raises the following propositions of error: (1) the trial court erred when it ordered concurrently running sentences to be served consecutively; and (2) ineffective assistance of counsel deprived Appellant of a fair hearing on the applications to revoke.

1. Cox asks this Court to remand these cases to the District Court with instructions to enter an Order of Revocation consistent with the actual judgments and sentences imposed at the time of sentencing. He argues the District Court has no authority to re-sentence Cox to terms vastly different from those set forth in the judgments and sentences entered at the time he entered his pleas in these cases. Specifically, he complains that sentences originally imposed to run concurrently, on revocation were changed to run consecutively. The State responds that the trial judge specifically noted on all four judgment and sentences that the concurrent nature of [Cox’s] sentences was based upon his ability to successfully complete his probation. Citing the authority of section 991a of Title 22, the State argues a trial judge is authorized to add special conditions to a defendant’s suspended sentence. The question raised is whether in revoking a suspended sentence, a district court has the power to change terms of imprisonment on multiple sentences from running concurrently to consecutively. We find it does not. A judicial revocation is the execution of a penalty previously imposed in the Judgment and Sentence but held in abeyance. Marutzky v. State, 1973 OK CR 398, ¶ 5, 514 P.2d 430.

The sentencing powers of the district court are set forth in 22 O.S. § 991a. That statute, in section 991a(A)(3), specifically states that one convicted of a crime may be committed for any confinement allowed by law. Section 991a(A)(1) states that the court may suspend the sentence imposed in whole or in part with or without probation. And finally, probation is defined in section 991a(E) of Title 22 as a procedure by which a defendant found guilty of a crime is released by the court subject to conditions imposed by the court and subject to the supervision of the Department of Corrections. It is clear that section 991a allows the trial court to set conditions when a defendant is released on probation. In this case, however, the orders of revocation deviate from the Judgments and Sentences originally imposed, and in doing so, exceed the power of the statute.

These cases must be remanded to the District Court for resentencing as follows:

CF-1999-1837
In Case CF-1999-1837 the Judgment and Sentence ordered the three five-year terms to be served concurrently, each with the other and with CF-02-1771 and McClain Co. CF-04-39. When the sentence was modified, the Modified Judgment and Sentence ordered the three five-year terms to be served concurrently, with CF-02-1771 and McClain Co. CF-04-39, and each to the other. Upon revocation, on Count 1 the trial judge revoked in full five years to be served consecutive to all pre-existing terms of incarceration, including McIntosh Co. CF-06-14, CF-05-172 & CF-05-152 and all McClain Co. cases, including CF-02-138 and CF-05-328. On Count 2 the trial judge revoked five years and ordered the sentence to be served consecutive to Count 1. On Count 3 the trial judge revoked five years and ordered the sentence to be served consecutive to Count 2. As the Judgment and Sentence in this case ordered the three counts to be served concurrently, each to the other, and concurrently with CF-02-1771 and McClain County CF-04-39, this matter must be remanded to the District Court to correct the order on revocation in CF-1999-1837 to execute the sentences previously imposed.

CF-2000-377
The Judgment and Sentence issued in Case CF-2000-377 ordered the two seven-year suspended sentences to be served concurrently, each with the other and with other suspended terms. Upon revocation, on Count 1 the trial judge revoked in full seven years to be served consecutive to CF-1999-1837, Count 3. On Count 2, the trial judge revoked in full seven years to be served consecutive to Count 1. As the Judgment and Sentence in this case ordered the two counts to be served concurrently, each with the other, and with other suspended terms, this matter must also be remanded to the District Court to correct the order on revocation in CF-2000-377 to execute the sentences previously imposed.

CF-2002-1771
In Case CF-2002-1771 the Judgment and Sentence ordered the two five-year terms to be served concurrently, each with the other and with CF-02-1779 and McClain Co. CF-04-39. When the sentence was modified, the Modified Judgment and Sentence ordered the two five-year terms to be served concurrently, with CF-99-1837 and McClain Co. CF-04-39, and each to the other. Upon revocation, on Count 1 the trial judge revoked in full with credit for time served in execution of original J&S, prior to judicial modification; to be served consecutive to CF-00-377, Count 2. On Count 2 the trial judge revoked in full with credit for time served in execution of original J&S, prior to judicial modification; to be served consecutive to Count 1, hereof. As the Judgment and Sentence in this case ordered the two counts to be served concurrently with each other and concurrently with CF-99-1837 and McClain County CF-04-39, this matter must also be remanded to the District Court to correct the order on revocation in CF-2002-1771 to execute the sentences previously imposed.

CF-2003-761
The Judgment and Sentence issued in Case CF-2003-761 ordered the five-year suspended sentence to be served concurrently, with other suspended terms. In this case, the trial judge revoked the five years in full, to be served consecutive to CF-02-1771, Count 2. Because the Judgment and Sentence in this case ordered this sentence to be served concurrently with other suspended terms, this matter must also be remanded to the District Court to correct the order on revocation in CF-2003-761 to execute the sentence previously imposed.

2. Claims of ineffective assistance of counsel are reviewed under the well established rule of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which sets forth a two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. First, Petitioner must show counsel’s performance was deficient, and second, he must show the deficient performance prejudiced the defense. Id., 466 U.S. at 687, 104 S.Ct. at 2064. The burden rests with Appellant to show there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. Id., 466 U.S. at 694, 104 S.Ct. at 2068. Strickland defines a reasonable probability as a probability sufficient to undermine confidence in the outcome. Id. Cox has not met this burden. The record does not show the result of this proceeding would have been different but for any errors by counsel.

DECISION
The revocation of Juston Dean Cox’s suspended sentences in Cleveland County District Court, Cases CF-1999-1837, CF-2000-377, CF-2002-1771 and CF-2003-761, is AFFIRMED but the cases are REMANDED to the District Court for resentencing in each case as set forth above. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. 22 O.S. § 982A
2. Marutzky U. State, 1973 OK CR 398, II 5, 514 P.2d 430
3. 22 O.S. § 991a
4. 22 O.S. § 991a(A)(3)
5. 22 O.S. § 991a(A)(1)
6. 22 O.S. § 991a(E)
7. Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984)

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 982A (2011) - Modification of sentences
• Okla. Stat. tit. 22 § 991a (2011) - Powers of the court regarding suspended sentences
• Okla. Stat. tit. 22 § 991a(A)(1) (2011) - Suspension of sentence
• Okla. Stat. tit. 22 § 991a(A)(3) (2011) - Commitment for confinement
• Okla. Stat. tit. 22 § 991a(E) (2011) - Definition of probation

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:

• Marutzky v. State, 1973 OK CR 398, II 5, 514 P.2d 430
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984)