Phillip Wade Barton v The State Of Oklahoma

RE-2012-1043

Filed: May 12, 2014

Not for publication

Prevailing Party: Phillip Wade Barton

Summary

Phillip Wade Barton appealed his conviction for the revocation of his ten-year suspended sentence. Conviction and sentence were reversed. Judge Lumpkin wrote the opinion, and no one dissented.

Decision

Accordingly, the order of the District Court of Tulsa County revoking Appellant's ten year suspended sentence in Case No. CF-2010-2061 is REVERSED and the matter is REMANDED to the District Court for further proceedings in accordance with this decision. Appellant's motion to supplement the record and application for evidentiary hearing on Sixth Amendment claims is MOOT. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there error in revoking a suspended sentence for misconduct that occurred before the suspended sentence existed?
• Did the counsel provide ineffective assistance?

Findings

• the court erred
• evidence was not sufficient

RE-2012-1043

May 12, 2014

Phillip Wade Barton

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

The Appellant, Phillip Wade Barton, appeals from the revocation of his ten-year suspended sentence in Case No. CF-2010-2061 in the District Court of Tulsa County, by the Honorable Tom C. Gillert, District Judge. On October 27, 2010, Appellant pled guilty to Endeavoring to Manufacture Controlled Dangerous Substance, and was sentenced to a term of ten years, with the sentence suspended. On May 2, 2011, the State filed an application to revoke Appellant’s suspended sentence alleging he violated probation by being arrested on April 6, 2011, for Endeavoring to Manufacture Controlled Dangerous Substance, After Former Conviction of a Felony, in Creek County District Court Case No. CF-2011-92. On October 8, 2012, the hearing on the application to revoke began before Judge Gillert. The only evidence introduced by the State was Exhibit #1, a certified copy of a Docket Sheet showing that on June 3, 2011, Appellant entered a plea of guilty in Creek County District Court Case No. CF-2011-92.

After considering the evidence and hearing arguments, Judge Gillert found Appellant violated probation and revoked his ten-year suspended sentence in full. Appellant asserts two propositions of error in this appeal:

I. THE DISTRICT COURT ERRED WHEN IT REVOKED A SUSPENDED SENTENCE FOR MISCONDUCT THAT OCCURRED BEFORE THE SUSPENDED SENTENCE EXISTED.
II. COUNSEL’S ASSISTANCE WAS INEFFECTIVE.

ANALYSIS

Because the State has confessed error in this appeal, we need not fully address Appellant’s propositions of error. The State correctly notes that this appeal record clearly shows the District Court did not have the quantum of evidence legally required to revoke Appellant for his commission of a new crime. When the State seeks to revoke a suspended sentence on grounds the probationer has committed a new crime, the State must either (1) prove that the conviction of that crime is final; or (2) prove each element of the offense(s) alleged as a violation of probation. Sams v. State, 1988 OK CR 137, ¶ 6, 758 P.2d 834, 835; Stoner v. State, 1977 OK CR 212, ¶ 6, 566 P.2d 142, 143.

It is well established that when the State chooses to prove a judgment and sentence rather than the underlying crime as a predicate for revocation of a suspended sentence, the judgment is a valid basis for revocation only if it is final. Pickens v. State, 1989 OK CR 58, ¶ 12, 779 P.2d 596, 598. A judgment and sentence becomes final when the defendant does not appeal within the time prescribed for direct appeal or, if the defendant perfects a direct appeal, final disposition is made and entered by the appellate court. Id. The appeal record in this case is clear that the State never proved that Appellant’s Judgment and Sentence in Creek County District Court Case No. CF-2011-92 was final; and never attempted to prove each element of the crime of Endeavoring to Manufacture Controlled Dangerous Substance, alleged as the violation of probation.

DECISION

Accordingly, the order of the District Court of Tulsa County revoking Appellant’s ten-year suspended sentence in Case No. CF-2010-2061 is REVERSED and the matter is REMANDED to the District Court for further proceedings in accordance with this decision. Appellant’s motion to supplement the record and application for evidentiary hearing on Sixth Amendment claims is MOOT. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the filing of this decision.

OPINION BY: LUMPKIN, J.
LEWIS, P.J.: CONCUR
SMITH, V.P.J.: CONCUR
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR

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Footnotes:

1. Okla. Stat. tit. 22 § 983
2. Okla. Stat. tit. 22 § 988
3. Okla. Stat. tit. 22 § 622
4. Okla. Stat. tit. 22 § 602

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:

• Sams v. State, 1988 OK CR 137, II 6, 758 P.2d 834, 835
• Stoner v. State, 1977 OK CR 212, II 6, 566 P.2d 142, 143
• Pickens v. State, 1989 OK CR 58, IT 12, 779 P.2d 596, 598