Jermaine Richard Newton v The State Of Oklahoma

RE-2011-710

Filed: Jun. 3, 2013

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Jermaine Richard Newton appealed his conviction for Assault with a Dangerous Weapon. Conviction and sentence were modified from ten years imprisonment to time served. Judge Lumpkin dissented.

Decision

The July 26, 2011, revocation orders of the District Court of Tulsa County, on Counts 1 and 2 in Case No. CF-2010-3889, are hereby MODIFIED to time served. The District Court shall therefore enter an Amended Order Revoking Suspended Sentence for these counts consistent with this decision. The Amended Order shall be entered within thirty days from the issuance of mandate. When entered, the Amended Order shall revoke an amount of time equivalent to that which Newton has served in obedience to the revocation orders of July 26, 2011. On entering the Amended Order, the District Court shall return Newton to probation. This reinstatement of Newton to probation shall be without prejudice to his prosecution for any probation violations occurring subsequent to the July 26, 2011, revocation orders. As modified, the revocation orders in all other respects are AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), MANDATE IS ORDERED ISSUED on the filing of this decision.

Issues

• was the evidence sufficient to prove Newton committed the offense of Violation of a Protective Order?
• was the probation violation justifiable or excusable?
• did the violation of the protective order justify revocation of probation?
• was the revocation of the suspension provisions in full an abuse of discretion?

Findings

• the evidence was sufficient to prove Newton committed the offense of Violation of a Protective Order
• Newton's violation was not excusable
• the violation justified revocation
• the trial court abused its discretion by revoking the suspended sentences in full
• the revocation orders are modified to time served
• Newton is reinstated to probation

RE-2011-710

Jun. 3, 2013

Jermaine Richard Newton

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE: In the District Court of Tulsa County, Case No. CF-2010-3889, Appellant, Jermaine Richard Newton, while represented by counsel, entered pleas of guilty to two counts of Assault with a Dangerous Weapon in violation of 21 O.S.Supp.2006, § 645. On November 5, 2010, in accordance with a plea agreement, the Honorable Stephen Clark, Special Judge, sentenced Newton to concurrent terms of ten years imprisonment on each count but suspended execution of those sentences conditioned on written terms of probation. On July 6, 2011, the State filed an application to revoke alleging Newton violated probation by committing a misdemeanor offense of Violation of Protective Order as alleged in District Court Case No. PO-2011-1134. Following an evidentiary hearing, the Honorable Tom Gillert, District Judge, sustained the application and on July 26, 2011, revoked Newton’s suspended sentences in full.

Newton appeals this order of revocation, raising the following issues: 1. whether the evidence was sufficient to prove Newton committed the offense of Violation of a Protective Order, whether that probation violation was excusable, and whether the violation justified revocation; and 2. whether revocation of the suspension provisions in full was an abuse of discretion.

1. Newton’s suspended sentences were conditioned on written rules of probation requiring that he refrain from violating City, State, or Federal laws. (O.R. 27.) The State presented evidence that an Order of Protection had been entered against Newton and served on him as required for an offense under 22 O.S.Supp.2009, § 60.6(A)(1). That Order prohibited Newton from being within 300 yards of P.L.F. or her residence. The revocation hearing contains evidence sufficient to support a finding that Newton violated that Order of Protection and that his violation was not excusable. See Black U. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 1.Ed.2d 636 (1985); Gibson U. State, 1975 OK CR 40, 9 3, 532 P.2d 853, 853. We find no abuse of discretion occurred in the trial court concluding Newton’s violation justified revocation. See Fain v. State, 1972 OK CR 317, I 8, 503 P.2d 254, 255.

2. Newton contends that Judge Gillert’s decision to revoke the ten-year suspended sentences in full was an excessive punishment under all of the facts and circumstances of his case. Newton therefore asks the revocation orders be modified to revoke lesser portions of the provisions suspending sentence. The decision of the trial court to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. Having reviewed all the facts and circumstances presented on appeal, this Court finds revocation in full to be an abuse of discretion, and that modification of the revocation orders to time served would be an appropriate punishment in Newton’s particular case.

The following are some of the circumstances we consider in making this determination. Executing the entirety of Newton’s ten-year terms of imprison- ment results in his serving the maximum prison sentence allowed by statute for an unenhanced offense of Assault with a Dangerous Weapon (21 O.S.Supp.2006, § 645). Newton was only eighteen years old at the time of his convictions and probation violation. Aside from these offenses, Newton does not appear to have any prior convictions or any prior failed probationary periods. And this will be the first time that he has been sent to prison. Besides this misdemeanor violation of a protective order, there were no allegations that Newton otherwise reoffended or violated his probation. Were Newton to be convicted of that misdemeanor, the maximum sentence for this first offense would be a one-year jail term and a thousand dollar fine. 22 O.S.Supp.2009, 60.6(A)(1). There are no aggravating circumstances surrounding Newton’s misdemeanor. It occurred without any physical or threatening contact between Newton and P.L.F. and occurred in the course of Newton engaging in conduct that would have been wholly innocent activity but for the existing protective order.

DECISION

The July 26, 2011, revocation orders of the District Court of Tulsa County, on Counts 1 and 2 in Case No. CF-2010-3889, are hereby MODIFIED to time served. The District Court shall therefore enter an Amended Order Revoking Suspended Sentence for these counts consistent with this decision. The Amended Order shall be entered within thirty days from the issuance of mandate. When entered, the Amended Order shall revoke an amount of time equivalent to that which Newton has served in obedience to the revocation orders of July 26, 2011. On entering the Amended Order, the District Court shall return Newton to probation. This reinstatement of Newton to probation shall be without prejudice to his prosecution for any probation violations occurring subsequent to the July 26, 2011, revocation orders. As modified, the revocation orders in all other respects are AFFIRMED.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), MANDATE IS ORDERED ISSUED on the filing of this decision.

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Footnotes:

1. 21 O.S.Supp.2006, § 645
2. 22 O.S.Supp.2009, § 60.6(A)(1)
3. Owens v. State, 2010 OK CR 1, 2, 229 P.3d 1261, 1269 (Lumpkin, J., concurring in part/dissenting in part)
4. Quillen v. State, 2007 OK CR 22, 14, 163 P.3d 587, 594 (Lumpkin, P.J., concurring in part/dissenting in part) (overruled by Barnett v. State, 2011 OK CR 28, 263 P.3d 959)
5. Cohee v. State, 1997 OK CR 30, 5, 942 P.2d 211, 218 (Lumpkin, J., concurring in part/dissenting in part)
6. Dennis v. State, 1999 OK CR 23, 7, 990 P.2d 277, 289 (Lumpkin, V.P.J., concurring in part/dissenting in part)
7. Seabolt v. State, 2006 OK CR 50, 4, 152 P.3d 235, 239 (Lumpkin, V.P.J., dissenting)
8. McQueen v. State, 1987 OK CR 162, 2, 740 P.2d 744, 745
9. Degraffenreid v. State, 1979 OK CR 88, 13, 599 P.2d 1107, 1110
10. Fowler v. State, 1971 OK CR 115, 482 P.2d 949, 951
11. Phipps v. State, 1974 OK CR 219, 11, 529 P.2d 998, 1001
12. Demry v. State, 1999 OK CR 31, 7, 21, 986 P.2d 1145, 1146-48

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 645 (2006) - Assault with a Dangerous Weapon
• Okla. Stat. tit. 22 § 60.6(A)(1) (2009) - Violation of Protective Order
• Okla. Stat. tit. 22 § 991b(D) (2012) - Drug Court Statutes
• Okla. Stat. tit. 22 § 471.7(E) (2011) - 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:

• Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985)
• Gibson v. State, 1975 OK CR 40, 9 3, 532 P.2d 853, 853
• Fain v. State, 1972 OK CR 317, "I 8, 503 P.2d 254, 255
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
• Owens v. State, 2010 OK CR 1, I 2, 229 P.3d 1261, 1269
• Quillen v. State, 2007 OK CR 22, 9 14, 163 P.3d 587, 594
• Cohee v. State, 1997 OK CR 30, T 5, 942 P.2d 211, 218
• Dennis v. State, 1999 OK CR 23, I 7, 990 P.2d 277, 289
• Seabolt v. State, 2006 OK CR 50, I 4, 152 P.3d 235, 239
• McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745
• Degraffenreid v. State, 1979 OK CR 88, I 13, 599 P.2d 1107, 1110
• Fowler v. State, 1971 OK CR 115, 482 P.2d 949, 951
• Phipps v. State, 1974 OK CR 219, I 11, 529 P.2d 998, 1001
• Demry v. State, 1999 OK CR 31, II 7, 21, 986 P.2d 1145, 1146-48