Jacquelin Clariece Alexander v The State Of Oklahoma

RE-2010-457

Filed: Oct. 21, 2011

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Jacquelin Clariece Alexander appealed her conviction for possession of a controlled substance (cocaine base) and possession of drug paraphernalia. Her conviction and sentence involved three years of incarceration for the first charge and one year for the second charge, both of which were suspended. The court later revoked her suspended sentences after she failed to meet several requirements. The Court found that the second application to revoke her sentence was filed after her sentence for Count II had expired, meaning the court didn't have the power to rule on that part. Thus, that decision was overturned. However, they upheld the revocation for Count I because there was strong evidence against her. In the opinion, Judge Johnson noted that while Alexander's lawyer did not perform well, it did not change the outcome of the case due to the evidence of her violations. The decision was that Alexander's suspended sentence for Count I was kept as is, but Count II was dismissed because of the expired sentence. Judge Lumpkin and other judges also agreed with the results.

Decision

The order of the District Court of Tulsa County revoking Jacquelin Clariece Alexander's suspended sentence in Count I of Case No. CF-2006-4871 is AFFIRMED. The order of the District Court of Tulsa County revoking Jacquelin Clariece Alexander's suspended sentence in Count II of Case No. CF-2006-4871 is REVERSED and REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there jurisdiction to revoke the suspended sentence in Count II after the sentence had expired?
• Did ineffective assistance of counsel prejudice Alexander in the revocation proceedings?

Findings

• The trial court erred in revoking Alexander's suspended sentence in Count II as it lost jurisdiction due to the expiration of the sentence before the State filed an application to revoke.
• The order of revocation in Count II is reversed and remanded with instructions to dismiss.
• The revocation of Alexander's suspended sentence in Count I is affirmed.
• Alexander's claim of ineffective assistance of counsel did not result in prejudice affecting the outcome of the proceedings.

RE-2010-457

Oct. 21, 2011

Jacquelin Clariece Alexander

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE C. JOHNSON, JUDGE:

On October 25, 2006, Appellant, Jacquelin Clariece Alexander, represented by counsel, entered a plea of guilty in Tulsa County District Court Case No. CF-2006-4871, to Possession of a Controlled Dangerous Substance (Cocaine Base), Count I, and Possession of Drug Paraphernalia, Count II. Pursuant to a plea agreement, Alexander was sentenced to three years incarceration on Count I, and one year incarceration on Count II. Both sentences were suspended and ordered to run concurrently.

On May 27, 2008, the State filed an application to revoke Alexander’s suspended sentence. On April 16, 2010, a hearing was held before the Honorable William C. Kellough, District Judge. At the conclusion of the hearing, Alexander’s suspended sentences were revoked in full. From that order of revocation, Alexander has perfected this appeal.

The State alleged Alexander had failed to report to Diversion Services, tested positive for cocaine, failed to obtain full time employment, failed to pay probation fees, failed to complete drug treatment at Tulsa Women and Children’s Center, failed to attend her pre-treatment class with Diversion Services, failed to enroll in GED classes, failed to attend support group meetings, and failed to complete drug treatment at Tulsa Women and Children’s Center a second time.

In her first assignment of error, Alexander asserts the trial court lost jurisdiction to hear the State’s motion to revoke her suspended sentence in Count II because her sentence had expired before the State filed its application to revoke. We find merit in Alexander’s argument. A trial court may only revoke a suspended sentence which has already expired if the State filed an application to revoke prior to the expiration of the suspended sentence. See Avance v. Mills, 1972 OK CR 89, q14, 495 P.2d 828, 831. If the State wanted to ensure Alexander’s compliance with her promise to complete community service, it should not have dismissed the first application to revoke. Id., at q14, 495 P.2d at 831. Because the second application to revoke was filed after Alexander’s suspended sentence had expired, the trial court no longer had jurisdiction over the sentence. Therefore, the trial court’s order of revocation in Count II is REVERSED and REMANDED with instructions to DISMISS.

In Alexander’s final proposition of error, she argues she was severely prejudiced in the revocation proceedings by ineffective assistance of counsel. Under long-standing precedent, a defendant will not prevail on a claim of ineffective assistance of counsel without showing counsel’s representation fell below an objective standard of reasonableness, and a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674. In other words, even if a defendant is able to show deficient performance, the defendant will not be entitled to relief unless the defendant can show the deficiency was prejudicial to the defense. Andrew U. State, 2007 OK CR 23, 196, 164 P.3d 176, 198. In the case at bar, we find defense counsel’s performance fell below the prevailing professional standard of reasonableness. Therefore, the only question is whether counsel’s performance prejudiced Alexander to the extent that the result of the proceeding would have been different. Rochon v. State, 2008 OK CR 1, q15, 176 P.3d 362, 365. After a review of the record, we find the evidence of Alexander’s probation violations to be overwhelming and uncontested. Alexander’s proffered evidence mostly concerns mitigating evidence of rehabilitation and accomplishments she completed after the application to revoke had been filed. We do not find that the result of the proceeding would have been different.

DECISION

The order of the District Court of Tulsa County revoking Jacquelin Clariece Alexander’s suspended sentence in Count I of Case No. CF-2006-4871 is AFFIRMED. The order of the District Court of Tulsa County revoking Jacquelin Clariece Alexander’s suspended sentence in Count II of Case No. CF-2006-4871 is REVERSED and REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

Alexander’s motion to supplement appeal record is GRANTED.

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Footnotes:

1. Okla. Stat. tit. 22 § 982a
2. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
3. Andrew v. State, 2007 OK CR 23, 196, 164 P.3d 176, 198
4. Rochon v. State, 2008 OK CR 1, q15, 176 P.3d 362, 365
5. Okla. Stat. tit. 22 § 1115

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Sentencing for suspended sentences
• Okla. Stat. tit. 22 § 991a - Sentences and parole
• Okla. Stat. tit. 22 § 983 - Revocation of suspended sentences

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:

• Avance v. Mills, 1972 OK CR 89, q14, 495 P.2d 828, 831
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
• Andrew v. State, 2007 OK CR 23, 196, 164 P.3d 176, 198
• Rochon v. State, 2008 OK CR 1, q15, 176 P.3d 362, 365