Billy Ray Campbell v State Of Oklahoma

RE-2009-239

Filed: Dec. 10, 2010

Not for publication

Prevailing Party: Billy Ray Campbell

Summary

Billy Ray Campbell appealed his conviction for two counts of Uttering a Forged Instrument. His conviction and sentence involved a total of four years in prison, which he was supposed to serve consecutively. However, he argued that his entire sentence should not have been revoked just because he did not report to his probation officer. The court decided that the full revocation was too much and modified it so that he would serve his sentences concurrently instead of consecutively. Judge Lumpkin disagreed and thought the original sentence should stay as it was, meaning he wanted to keep the sentences served one after the other.

Decision

The final order of the District Court of Pottawatomie County revoking Campbell's suspended sentences in Case No. CF-2006-471 is hereby REMANDED with instructions to the District Court to modify its order to direct that Campbell's terms of imprisonment be served concurrently, and not consecutively. As modified, the order of revocation is AFFIRMED.

Issues

• Was there a refusal by the District Court to exercise discretion which resulted in an excessive revocation?
• Did the court exceed its statutory authority by assessing victim compensation assessments a second time?

Findings

• the court erred in revoking the suspended sentence in full and allowing the sentences to be served consecutively, resulting in an excessive sentence
• the second assessment of victim compensation is not void on its face and the court did not exceed its statutory authority

RE-2009-239

Dec. 10, 2010

Billy Ray Campbell

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, VICE PRESIDING JUDGE:

In the District Court of Pottawatomie County, Case No. CF-2006-471, Billy Ray Campbell, Appellant, while represented by counsel, entered pleas of nolo contendere to two counts of Uttering a Forged Instrument. On October 23, 2007, pursuant to a plea agreement, the Honorable Douglas L. Combs, District Judge, deferred Campbell’s sentencing for a period of five years under written terms of probation. On January 29, 2008, Judge Combs accelerated Campbell’s sentencing, imposed a term of four years imprisonment on each count, declared that those terms would be served consecutively, and suspended execution of the terms of imprisonment under written conditions of probation. On October 14, 2008, the State filed a Motion to Revoke Suspended Sentence alleging that Campbell violated his probation by failing to report to his probation officer as directed. Campbell stipulated to that allegation, and on March 4, 2009, Judge Combs revoked his suspension order in full. Campbell now appeals from the final order of revocation and raises the following propositions of error:

1. The District Court’s pre-determination that any future probation violation would result in full revocation was a refusal to exercise discretion which resulted in an excessive revocation.

2. The court’s second assessment of victim compensation is void and must be set aside because the court exceeded its statutory authority.

Campbell argues first that Judge Combs either refused or failed to exercise that discretion given to him by law to revoke less than the entirety of the orders suspending execution of sentence and that his resulting order revoking in full was excessive. We have reviewed the record and the statements of the court below that Campbell argues demonstrate a misapprehension of that court’s power in this matter. Read in context, Judge Combs’ statements are generalizations of the law and do not show that Judge Combs, an experienced jurist, harbored any misbeliefs or misconceptions about his authority to revoke less than the entirety of the suspension orders.

1 Further, we do not find that when Judge Combs imposed the suspended sentences, he had pre-determined the consequences for any future violation of the probation imposed. Nonetheless, we find that the District Court’s order revoking the suspension orders in full and allowing the sentences to be served consecutively resulted in an excessive sentence in this case.

2 For that reason, we direct that the revocation order entered below be modified to allow Campbell’s sentences to be served concurrently.

Campbell also contends it was unlawful for the District Court to impose Victims Compensation Assessments (VCAs) when accelerating sentencing and imposing Judgment and Sentence, because nine months previously the Court had entered such assessments in the original order deferring judgment in this case.³ In making this claim, Campbell recognizes that this error occurred during the acceleration proceedings and would normally lie outside the scope of this revocation appeal. Campbell tries to overcome this impediment, however, by asserting that the second VCAs are void on their face. In this case, the total assessment per count is $350.00, a sum well within the $1,000.00 figure allowed by statute. 4 This Court consequently is not presented with a void judgment. The procedure setting the VCA is not part of this instance, Campbell’s only alleged probation violation was failing to report. Campbell maintained employment throughout most of his two periods of probation. The maximum punishment for a first offense of second degree forgery by Uttering a Forged Instrument is seven years. 21 O.S.2001, § 1621(2). Campbell’s consecutive sentences would require he serve a total of eight years in prison on these two related first offenses. The only aggravating factor that is apparent from the record is that both of Campbell’s probation failures were for not reporting. Although the Court has previously recognized the importance of a probationer reporting and that a violation for failing to report will provide a basis for revocation (e.g., McCoy v. State, 1977 OK CR 254, I 4, 568 P.2d 353, 354; Moore v. State, 1971 OK CR 433, 9 5, 489 P.2d 1359, 1360), we do not find, under all of these facts and circumstances presented, that this last violation can support a revocation in full in this particular instance for these offenses resulting in the service of eight years in prison.

3 Campbell relies on 21 O.S.2001, § 142.18(B), of the Oklahoma Crime Victims Compensation Act for his argument that the second VCA’s were unlawful. Campbell construes that statute as providing for only one VCA per offense.

4 21 O.S.2001, § 142.18(B) (the court shall levy a victim compensation assessment of at least Forty-five Dollars ($45.00), but not to exceed One Thousand Dollars ($1,000.00) for each felony).

DECISION

The final order of the District Court of Pottawatomie County revoking Campbell’s suspended sentences in Case No. CF-2006-471 is hereby REMANDED with instructions to the District Court to modify its order to direct that Campbell’s terms of imprisonment be served concurrently, and not consecutively. As modified, the order of revocation is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), MANDATE IS ORDERED ISSUED upon the filing of this decision.

OPINION BY: A. JOHNSON, V.P.J.
C. JOHNSON, P.J.: Concur
LUMPKIN, J.: Concur in Part, Dissent in Part
LEWIS, J.: Concur in Part, Dissent in Part
SMITH, J.: Concur

LUMPKIN, JUDGE: CONCUR IN PART/DISSENT IN PART

I concur in the decision to affirm the revocation in Proposition I and the Court’s decision in Proposition II, but dissent to the finding in Proposition I that the revocation order was excessive. When Appellant was originally sentenced to 4 years suspended, the court ordered the sentences run consecutively. At the revocation hearing, all the judge did was order the sentences be executed and served consecutively, as originally ordered. By the time of the revocation hearing, Appellant had already been given the benefit of a deferred sentence – which he could not successfully carry out. He then received suspended sentences, but still was unable to follow the rules and conditions of probation. The revocation order merely orders the sentences to be served as previously imposed – consecutively. The trial court’s ruling was not abuse of discretion. See Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. This Court has corrected trial courts when a judge has incorrectly tried to change the service of sentence from what was originally ordered at the time of sentencing to something different upon revocation. As this Court stated in Marutzky U. State, 1973 OK CR 398, 514 P.2d 430, at IT 5, the consequence of judicial revocation is to execute a penalty previously imposed in the judgment and sentence. See also, Robinson v. State, 1991 OK CR 44, IT 3, 809 P.2d 1320; Degraffenreid U. State, 1979 OK CR 88, 599 P.2d 1107. In Williams U. State, 2004 OK CR 8, 87 P.3d 620, this Court was required to correct the Executive Branch when the Governor sought to order sentences to run consecutively on a parole revocation when the sentences had originally been ordered to run concurrently. We stated neither can the Governor in an ex post facto fashion, increase the sentence previously rendered in a final judgment and sentence. Id., IT 9. In Hemphill U. State, 1998 OK CR 7, IT 9, 954 P.2d 148, we made it clear that just as a defendant’s suspended sentence may not be lengthened by intervening revocation orders occurring within the original term of sentence, a suspended sentence may not be shortened by intervening revocations. This Court should adhere to those same rules on appeal. Therefore, I find no reason to modify Appellant’s sentence. I am authorized to state that Judge Lewis joins in this separate opinion.

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Footnotes:

1. In Berget U. State, the Court held: Unless proven otherwise, we will assume that the trial court understood the penal- ty procedures involved with capital sentencing. The trial judge was an experienced jurist with previous experience in capital cases. The United States Supreme Court recently held that when a judge is responsible for sentencing, it may be presumed that he or she follows the law, including any limiting constructs which the state appel- late courts have placed on a particular statute. Berget v. State, 1991 OK CR 121, I 43, 824 P.2d 364, 375 (citations omitted).
2. 21 O.S.2001, § 1621(2).
3. Campbell relies on 21 O.S.2001, § 142.18(B), of the Oklahoma Crime Victims Compensation Act for his argument that the second VCA's were unlawful. Campbell construes that statute as providing for only one VCA per offense.
4. 21 O.S.2001, § 142.18(B) ("the court shall levy a victim compensation assessment of at least Forty-five Dollars ($45.00), but not to exceed One Thousand Dollars ($1,000.00) for each felony").
5. See Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010) (in revocation appeal, "the scope of review is limited to the validity of the revocation order" and "validity of the predicate conviction can only be appealed through a separate appeal pursuant to the regular felony and misdemeanor procedures.").
6. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565.
7. Marutzky U. State, 1973 OK CR 398, 514 P.2d 430, at IT 5.
8. Robinson v. State, 1991 OK CR 44, IT 3, 809 P.2d 1320.
9. Degraffenreid U. State, 1979 OK CR 88, 599 P.2d 1107.
10. Williams U. State, 2004 OK CR 8, 87 P.3d 620, IT 9.
11. Hemphill U. State, 1998 OK CR 7, IT 9, 954 P.2d 148.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1621.2 (2001) - Forgery; Penalties
• Okla. Stat. tit. 21 § 142.18(B) (2001) - Victims Compensation Assessment

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:

• Bramlett v. State, 2018 OK CR 19, 1 36, 422 P.3d 788, 799-800
• Berget v. State, 1991 OK CR 121, 1 43, 824 P.2d 364, 375
• McCoy v. State, 1977 OK CR 254, 1 4, 568 P.2d 353, 354
• Moore v. State, 1971 OK CR 433, 9 5, 489 P.2d 1359, 1360
• Jones v. State, 1988 OK CR 20, 1 8, 749 P.2d 563, 565
• Marutzky v. State, 1973 OK CR 398, 514 P.2d 430, at 1 5
• Robinson v. State, 1991 OK CR 44, 1 3, 809 P.2d 1320
• Degraffenreid v. State, 1979 OK CR 88, 599 P.2d 1107
• Williams v. State, 2004 OK CR 8, 87 P.3d 620
• Hemphill v. State, 1998 OK CR 7, 1 9, 954 P.2d 148