Shaun Lee Gessel v The State Of Oklahoma

RE-2006-262

Filed: Mar. 21, 2007

Not for publication

Prevailing Party: Shaun Lee Gessel

Summary

Shaun Lee Gessel appealed his conviction for violating probation. Conviction and sentence were reversed. Charles S. Chapel dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that Appellant's appeal from the revocation of his suspended sentences in Case Nos. CF-2002- 1069, CF-2002-6266, CF-2003-3457, CF-2004-1823, and CF-2004-2525 in the District Court of Oklahoma County should be, and is hereby, GRANTED and the matter is REMANDED to the District Court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued forthwith upon the filing of this decision with the Clerk of this Court. IT IS so ORDERED.

Issues

• Was there adequate notice given to the Appellant regarding the grounds for revocation of his suspended sentences?
• Did the revocation hearing properly consider the alleged violations before the court?
• Was the Appellant's revocation based on applications that were inadequately alleged?
• Did the amended applications to revoke provide sufficient notice to the Appellant after his initial revocation?

Findings

• the court erred in revoking the appellant's suspended sentences due to insufficient notice of the grounds for revocation
• the amended applications to revoke did not provide adequate notice to the appellant

RE-2006-262

Mar. 21, 2007

Shaun Lee Gessel

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

The Appellant, Shaun Lee Gessel, has appealed to this Court from the revocation of his suspended sentences, entered by the Honorable Twyla Mason Gray, District Judge, in Case Nos. CF-2002-1069, CF-2002-6266, CF-2003- 3457, CF-2004-1823, and CF-2004-2525 in the District Court of Oklahoma County. On February 6, 2006, an application to revoke Appellant’s suspended sentence was filed in each of the five cases. Each application alleged that Appellant had violated probation by committing the new crime of Assault and Battery With a Dangerous Weapon, as alleged in Oklahoma County District Court Case No. CF-2005-6652. On February 28, 2006, the hearing on the application to revoke was conducted before Judge Gray. Prior to the hearing, the State filed an amended application to revoke in Case No. CF-2002-1069, which added a violation that Appellant failed to complete terms of probation.

During the hearing, the State called Appellant’s probation officer as a witness. She testified that Appellant had failed to report; failed to pay restitution; and failed to do any drug and alcohol assessments. The State rested noting they did not plan to present any evidence on the alleged violation that Appellant had committed the new crime of Assault and Battery With a Dangerous Weapon as alleged in Oklahoma County District Court Case No. CF-2005-6652. Judge Gray revoked Appellant’s suspended sentences in full finding he had committed the alleged violation that he had not complied with probation. After the hearing, the State filed amended applications to revoke in Case Nos. CF-2002-6266, CF-2003-3457, CF-2004-1823, and CF- 2004-2525, which added the additional violations of: (1) failure to report; (2) failure to complete terms of probation; (3) failure to pay restitution; (4) failure to complete drug and alcohol assessment; (6) failure to pay probation fees; and (7) failure to notify of change of address.

Appellant asserts one proposition of error in this appeal. Appellant contends that his revocation should be reversed as he was not given adequate notice of the ground for which he was revoked in violation of the Federal and State Constitutions. We find that Appellant was not afforded sufficient notice of the grounds upon which revocation was sought, and that the revocation was ordered on the basis of applications not alleged, or inadequately alleged, in the application. Lennox v. State, 1984 OK CR 22, 674 P.2d 1146.

The original application to revoke gave Appellant notice of the alleged violation of his crime in Oklahoma County District Court Case No. CF-2005-6652. However, no evidence relating to that violation was presented at the revocation hearing. The amended application to revoke in Case No. CF-2002-1069 was not filed until just before the revocation hearing and did not state allegations sufficiently clear to advise Appellant of the reasons for seeking the revocation. Lennox, 1984 OK CR 22 at 115-7, 674 P.2d at 1148-49. The amended applications to revoke filed after Appellant’s suspended sentences had already been revoked did not provide any notice to Appellant.

IT IS THEREFORE THE ORDER OF THIS COURT that Appellant’s appeal from the revocation of his suspended sentences in Case Nos. CF-2002- 1069, CF-2002-6266, CF-2003-3457, CF-2004-1823, and CF-2004-2525 in the District Court of Oklahoma County should be, and is hereby, GRANTED and the matter is REMANDED to the District Court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued forthwith upon the filing of this decision with the Clerk of this Court. IT IS so ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 21st day of March, 2007.

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

ATTEST: Clerk

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Footnotes:

1. Oklahoma County District Court Case No. CF-2005-6652.
2. Lennox v. State, 1984 OK CR 22, 674 P.2d 1146.
3. Lennox, 1984 OK CR 22 at 115-7, 674 P.2d at 1148-49.
4. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007).

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:

• Lennox v. State, 1984 OK CR 22, 674 P.2d 1146
• Lennox v. State, 1984 OK CR 22 at 115-7, 674 P.2d at 1148-49