Amon Walden Pershall v The State Of Oklahoma
RE-2013-279
Filed: Feb. 21, 2014
Not for publication
Prevailing Party: Amon Walden Pershall
Summary
Amon Walden Pershall appealed his conviction for driving a motor vehicle while under the influence of alcohol and transporting an open container of liquor. His conviction included a ten-year suspended sentence for the first charge and a six-month suspended sentence for the second charge, which were supposed to run at the same time. The case was reviewed by the Oklahoma Court of Criminal Appeals after the state filed to revoke his suspended sentences, claiming he violated their rules. The court found that the first reason for appeal was valid. The hearing to revoke his sentences happened after the allowed twenty days without a waiver, so they decided that the revocation shouldn’t have taken place. Therefore, the court reversed the decision to revoke his sentences, and they ordered that the case be sent back for new proceedings. Judge A. Johnson dissented in the opinion.
Decision
The revocation of Appellant's suspended sentences in Caddo County District Court Case No. CF-2009-102 is REVERSED and REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 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 to revoke Mr. Pershall's suspended sentence due to violating the twenty-day rule for revocations?
- Did the State fail to prove that Appellant's alleged probation violations were willful?
- Was revoking Mr. Pershall's entire ten-year suspended sentence excessive based on the facts and circumstances?
- Did the cumulative effect of all these errors deprive Appellant of a fair and impartial proceeding?
Findings
- The court erred in revoking Appellant's suspended sentences due to a violation of the twenty-day rule for revocations.
RE-2013-279
Feb. 21, 2014
Amon Walden Pershall
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
MICHAEL S. RICHIE LEWIS, PRESIDING JUDGE:
On July 12, 2012, Appellant pled guilty, in Caddo County District Court Case No. CF-2009-102, to Count 1 – Driving a Motor Vehicle While Under the Influence of Alcohol, and Count 2 – Transporting Open Bottle or Container of Liquor, after former conviction of two felony crimes. He was sentenced to ten years imprisonment on Count 1 and six months imprisonment on Count 2, all suspended. The sentences were ordered to run concurrently.
On November 6, 2012, the State filed an application to revoke Appellant’s suspended sentences. Following a revocation hearing held March 14, 2013, the Honorable David A. Stephens, Special Judge, found Appellant violated the terms of his suspended sentences. The suspended sentences were revoked in full. Appellant appeals from the revocation of his suspended sentences.
On appeal, Appellant raised the following propositions of error:
1. The trial court lacked jurisdiction to revoke Mr. Pershall’s suspended sentence because of violating the twenty-day rule for revocations after Appellant entered his plea to the application to revoke his suspended sentence.
2. The State failed to prove that Appellant’s alleged probation violations were willful.
3. Revoking Mr. Pershall’s entire ten-year suspended sentence was excessive in this case based on the facts and circumstances.
4. The cumulative effect of all these errors deprived Appellant of a fair and impartial proceeding.
In Appellant’s first proposition of error, Appellant argues the District Court lost jurisdiction to hear the State’s application to revoke by failing to hold the hearing within twenty days and by timely failing to secure a waiver of the twenty-day rule. Section 991b(A) of Title 22 requires that a hearing on the State’s application to revoke must be held within twenty (20) days after the entry of the plea of not guilty to the petition, unless waived by both the state and the defendant. The record in the present case shows Appellant was arraigned and entered a plea of not guilty on February 5, 2013. On February 22, 2013, the trial judge set the revocation hearing for February 25, 2013, which was twenty days after the entry of the plea. On February 27, 2013, the trial court reset the revocation hearing to March 13, 2013. The record in this case shows a revocation hearing held thirty-five days after Appellant entered a plea of not guilty without securing a waiver of the twenty-day requirement found in Section 991b(A) of Title 22. Because we find merit to Appellant’s first proposition of error, we do not find it necessary to address Appellant’s remaining arguments.
DECISION
The revocation of Appellant’s suspended sentences in Caddo County District Court Case No. CF-2009-102 is REVERSED and REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. 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.
AN APPEAL FROM THE DISTRICT COURT OF CADDO COUNTY
THE HONORABLE DAVID A. STEPHENS, SPECIAL JUDGE
APPEARANCES AT TRIAL
MARK MYLES
ATTORNEY AT LAW
6303 NORTH PORTLAND
SUITE 300
OKLAHOMA CITY, OKLAHOMA 73112
COUNSEL FOR APPELLANT
VIRGINIA SANDERS
APPELLATE DEFENSE COUNSEL
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT
APPEARANCES ON APPEAL
JAMES WALTERS
ASSISTANT DISTRICT ATTORNEY
CADDO COUNTY COURTHOUSE
ANADARKO, OKLAHOMA 73005
COUNSEL FOR THE STATE
E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA
THEODORE M. PEEPER
ASSISTANT ATTORNEY GENERAL
313 N.W. 21st STREET
OKLAHOMA CITY, OKLAHOMA 73105
COUNSEL FOR THE STATE
OPINION BY: LEWIS, P.J.
SMITH, V.P.J.: Concurs
LUMPKIN, J.: Concurs
C. JOHNSON, J.: Concurs
A. JOHNSON, J.: Concurs
RA/F
Footnotes:
- Section 991b(A) of Title 22 requires that a hearing on the State's application to revoke must be held "within twenty (20) days after the entry of the plea of not guilty to the petition, unless waived by both the state and the defendant".
Oklahoma Statutes citations:
- Okla. Stat. tit. 22 § 991b(A) (2011) - 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:
No case citations found.