Wilburn Shawn Crowell v The State Of Oklahoma

RE 2013-0672

Filed: Apr. 18, 2014

Not for publication

Prevailing Party: Wilburn Shawn Crowell

Summary

Wilburn Shawn Crowell appealed his conviction for Assault and Battery-Domestic Abuse. Conviction and sentence were reversed. Judge Lewis, Judge Smith, and Judge Johnson concurred, while there was no dissent. In this case, Crowell had a suspended sentence that needed to be followed by certain rules. However, he faced problems and his sentence was revoked because he didn't follow the rules. Crowell appealed and argued that the court couldn’t take action against him because too much time had passed since his original sentence ended. The court agreed that it was not allowed to revoke his sentence since it had expired, and they decided to dismiss the case.

Decision

The revocation of Appellant's suspended sentence in Hughes County District Court Case No. CF-2009-112 is REVERSED and the matter is REMANDED to the District Court with instructions to dismiss. 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 a lack of jurisdiction for the trial court to revoke the original two-year suspension that expired nearly a year before the State's application?
• Did the trial court lack authority to impose post-imprisonment supervision upon revocation of the conviction and sentence?
• Was there ineffective assistance of counsel due to failure to advocate on behalf of the client and preserve issues for review?
• Must the written order revoking the suspended sentence be corrected to reflect the record accurately?
• Did cumulative errors deprive the appellant of a fair proceeding and a reliable outcome?

Findings

• the trial court lacked jurisdiction to revoke Mr. Crowell's original two-year suspension
• the remaining propositions of error are moot

RE 2013-0672

Apr. 18, 2014

Wilburn Shawn Crowell

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

Appellant, Wilburn Shawn Crowell, pled nolo contendere on January 26, 2010, in Hughes County District Court Case No. CF-2009-112 to Assault and Battery-Domestic Abuse. He was given a two-year suspended sentence, with rules and conditions of probation. The State filed an application to revoke Appellant’s suspended sentence on April 22, 2010. Appellant confessed the application to revoke on October 14, 2011, and was re-sentenced on October 25, 2011, to a two-year suspended sentence, under supervision of Community Sentencing Program and defendant to follow all recommendations of LSI. The State filed a subsequent application to revoke Appellant’s suspended sentence on January 8, 2013, and an amended application to revoke on February 1, 2013. Following a revocation hearing on July 10, 2013, the Honorable B. Gordon Allen, Associate District Judge, found, by a preponderance of the evidence, that Appellant violated the terms of his probation and revoked Appellant’s two-year suspended sentence. Appellant appeals from the revocation of his suspended sentence.

On appeal, Appellant raises five propositions of error:
1. The trial court lacked jurisdiction to revoke Mr. Crowell’s original two-year suspension that expired nearly a year before the State filed the January 8, 2013, application to revoke.
2. The trial court lacked authority to impose post-imprisonment supervision upon revocation of Mr. Crowell’s January 26, 2010, conviction and sentence.
3. Alternatively, counsel’s failure to advocate on his client’s behalf and preserve issues for review was the result of the ineffective assistance of counsel.
4. In the event the revocation stands, the written order revoking must be corrected to comport with the record showing Mr. Crowell was adjudged guilty and sentenced on January 26, 2010.
5. Cumulative errors deprived Mr. Crowell of a fair proceeding and a reliable outcome.

In the State’s Answer Brief filed in this Court February 21, 2014, the State agrees that Appellant’s suspended sentence expired on January 26, 2012, two years after the sentence was entered on January 26, 2010, and that the trial court did not have jurisdiction to revoke it based upon the State’s January 8, 2013, application. We agree. As set forth by the State: The court may revoke a portion of the sentence and leave the remaining part not revoked, but suspended for the remainder of the term of the sentence, and under the provisions applying to it. 22 O.S.Supp.2012, § 991b(D). In applying this statute, this Court has found that while the trial court, during the term of the original judgment and sentence, could have revoked the suspended sentence in whole or in part, up to five years, it was without authority to order additional suspended time past the term of the original judgment and sentence. Roberson v. State, 1977 OK R 74, IT 4, 560 P.2d 1039, 1040. This Court has also stated that a defendant’s suspended sentence may not be lengthened by intervening revocation orders occurring within the original term of the sentence… Hemphill v. State, 1998 OK CR 7, II 9, 954 P.2d 148, 151. The original term of sentence is that which is set by the district court at the time the order suspending was first entered. Id.

The State agrees that the trial court’s order of revocation should be reversed with instructions to dismiss. As we find Appellant is entitled to relief on his first proposition of error, the remaining propositions of error are moot.

DECISION

The revocation of Appellant’s suspended sentence in Hughes County District Court Case No. CF-2009-112 is REVERSED and the matter is REMANDED to the District Court with instructions to dismiss. 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.

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Footnotes:

1. 22 O.S.Supp.2012, § 991b(D).
2. Roberson v. State, 1977 OK R 74, ¶ 4, 560 P.2d 1039, 1040.
3. Hemphill v. State, 1998 OK CR 7, ¶ 9, 954 P.2d 148, 151.

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 991b(D) - 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:

• Roberson v. State, 1977 OK R 74, I 4, 560 P.2d 1039, 1040
• Hemphill v. State, 1998 OK CR 7, II 9, 954 P.2d 148, 151