Daniel Wesley Bradberry v The State of Oklahoma

RE-2013-635

Filed: Jul. 9, 2014

Not for publication

Prevailing Party: Daniel Wesley Bradberry

Summary

Daniel Wesley Bradberry appealed his conviction for violating probation. His original conviction included two counts of Failure to Register as a Sex Offender and one count of Living Too Close to a School. He was given life sentences, but they were suspended, meaning he wouldn't serve time unless he broke the rules. Later, the State said Bradberry broke those rules by not reporting to his probation officer and not showing proof of his job or that he was getting treatment for being a sex offender. The judge decided to take away his suspended sentences completely. Bradberry then appealed, arguing that taking away all his sentences was too harsh. The Court of Criminal Appeals said that the judge had made a mistake by revoking all of Bradberry's sentences because some of the issues happened very quickly after he started his probation and were connected to his struggles at that time. They modified the decision, changing it to a 10-year revocation of his suspended sentences instead. Judge Lumpkin disagreed and thought the judge was right to revoke all the sentences since Bradberry didn't follow even basic rules of his probation.

Decision

The order of the District Court of Ottawa County revoking Appellant's suspended life sentences in full in Case No. CF-2012-367 is REVERSED and this matter is REMANDED to the District Court to modify the order to revocation of ten years of Appellant's suspended life sentences. 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 an abuse of discretion by the District Court in revoking Mr. Bradberry's suspended sentences in full?
• Did the District Court properly consider the history of violations when revoking the suspended sentences?
• Should the revocation of the suspended sentences be modified to a lesser term instead of full revocation?

Findings

• the court erred in revoking Appellant's suspended life sentences in full
• the court's order should be modified to revocation of ten years of the suspended life sentences

RE-2013-635

Jul. 9, 2014

Daniel Wesley Bradberry

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE:

The Appellant, Daniel Wesley Bradberry, appeals from the revocation in full of his suspended life sentences in Case No. CF-2012-367 in the District Court of Ottawa County, by the Honorable William Culver, Special Judge. On March 1, 2013, Appellant entered a plea of guilty to two counts of Failure to Register as a Sex Offender, and one count of Sex Offender Living Within 2000 Feet of School, all after former conviction of two or more felonies. Pursuant to an agreement that the District Attorney would waive the prohibition of a suspended sentence, Appellant was convicted and sentenced on each count to a term of Life, with the sentences suspended and ordered to run concurrently.

On May 28, 2013, the State filed a motion to revoke Appellant’s suspended sentences alleging he violated probation by failing to report; failing to provide documentation of employment; and failing to provide documentation that he has addressed his sex offender treatment. On June 25, 2013, the revocation hearing was conducted before Judge Culver. After hearing the evidence and arguments, Judge Culver revoked Appellant’s suspended life sentences in full. Appellant filed this appeal from Judge Culver’s revocation order. He asserts one proposition of error:

I. THE DISTRICT COURT ABUSED ITS DISCRETION IN REVOKING MR. BRADBERRY’S SUSPENDED SENTENCES IN FULL. BECAUSE THE REVOCATION WAS EXCESSIVE, THIS COURT SHOULD FAVORABLY MODIFY THE ORDER REVOKING THE SUSPENDED SENTENCES.

ANALYSIS

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, T8, 749 P.2d 563, 565. In addressing a claim of excessiveness of a revocation, this Court determined that whether or not the revoking court revokes in whole or in part is left to the sound discretion of that court. Phipps v. State, 1974 OK CR 219, III 11, 12, 529 P.2d 998, 1000. In revoking Appellant’s suspended life sentences in full, the District Court noted that Appellant has a lengthy criminal record; that he has a history of not reporting; that he has a history of not registering; and that he has a history of not doing the things he is supposed to do. However, much of that history occurred before Appellant entered his plea of guilty, was convicted, and was given the suspended life sentences in this case. Appellant was on probation in this case for less than two weeks when the episode began that resulted in violations causing full revocation of the suspended life sentences, and the episode was apparently facilitated by Appellant’s attempt to commit suicide. We find that the District Court abused its discretion by revoking Appellant’s suspended life sentences in full for the violations alleged, the most important being a failure to report. We further find that the District Court’s order should be modified to revocation of ten years of the suspended life sentences.

DECISION

The order of the District Court of Ottawa County revoking Appellant’s suspended life sentences in full in Case No. CF-2012-367 is REVERSED and this matter is REMANDED to the District Court to modify the order to revocation of ten years of Appellant’s suspended life sentences. 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: C. JOHNSON, J.
LEWIS, P.J.: CONCURS
SMITH, V.P.J.: CONCURS
LUMPKIN, J.: DISSENTS
A. JOHNSON, J.: CONCURS

LUMPKIN, JUDGE: DISSENT

I respectfully dissent to the modification of the revocation of Appellant’s sentences. This Court reviews the District Court’s decision to revoke suspended sentences for an abuse of discretion. Tilden v. State, 2013 OK CR 10, T 10, 306 P.3d 554, 557. In conducting this review, this Court should not supplant the District Court’s decision with its own. See Neloms U. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170. We should not be deciding what we would have done if we had been the trial judge. Id. In the present case, the District Court revoked Appellant’s suspended sentences finding that Appellant had failed to report to his probation officer, failed to document employment, and failed to document sex offender treatment. It appears from the record that Appellant was knowledgeable and attempted to work the system. I cannot say that the District Court abused its discretion in revoking Appellant’s sentences in their entirety where Appellant failed to comply with even the simplest of probation requirements. Tilden, 2013 OK CR 10, I 10, 306 P.3d at 557 (finding no abuse of discretion in revoking entirety of suspended sentence based upon Tilden’s failure to comply with even the simplest probation requirement, to report to his probation officer and keep her advised of his whereabouts.). Therefore, I would affirm the District Court’s order revoking Appellant’s sentences in full.

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Footnotes:

1. Jones v. State, 1988 OK CR 20, T8, 749 P.2d 563, 565.
2. Phipps v. State, 1974 OK CR 219, III 11, 12, 529 P.2d 998, 1000.
3. Tilden v. State, 2013 OK CR 10, T 10, 306 P.3d 554, 557.
4. Neloms v. State, 2012 OK CR 7, "I 35, 274 P.3d 161, 170.
5. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d at 557.

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-801 (2011) - Traffic regulation
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for sex offenders
• Okla. Stat. tit. 22 § 18 (2014) - Rules of the Oklahoma Court of Criminal Appeals

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:

• Jones v. State, 1988 OK CR 20, T8, 749 P.2d 563, 565
• Phipps v. State, 1974 OK CR 219, III 11, 12, 529 P.2d 998, 1000
• Tilden v. State, 2013 OK CR 10, T 10, 306 P.3d 554, 557
• Neloms v. State, 2012 OK CR 7, "I 35, 274 P.3d 161, 170