Mark Stephen Collins v The State Of Oklahoma
RE-2013-887
Filed: Sep. 10, 2014
Not for publication
Prevailing Party: The State of Oklahoma
Summary
Mark Stephen Collins appealed his conviction for Possession of Child Pornography. Conviction and sentence were affirmed, but the one year of post-imprisonment supervision was vacated. Judge Lumpkin dissented.
Decision
The August 29, 2013, order of the District Court of Tulsa County, revoking in full the suspended portion of Appellant's sentence in Case No. CF-2010-4306, is AFFIRMED; the one year of post-imprisonment supervision is VACATED and the case is REMANDED for issuance of a revocation order 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 the revocation of Appellant's suspended sentence excessive in light of the alleged probation violations?
- Did Judge Glassco abuse his discretion by including one year of post-imprisonment supervision in the revocation order?
- Was the imposition of post-imprisonment supervision beyond the expiration of Appellant's suspended sentence an unauthorized modification of his sentence?
Findings
- the court did not err
- the one year of post-imprisonment supervision is vacated
RE-2013-887
Sep. 10, 2014
Mark Stephen Collins
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
MICHAEL S. RICHIE SMITH, VICE PRESIDING JUDGE:
On November 3, 2010, Appellant was charged with Possession of Child Pornography in Tulsa County District Court Case No. CF-2010-4306 and on January 12, 2011, he entered a plea of nolo contendere. Appellant was sentenced to five years imprisonment with all but the first forty-five days suspended.
On July 10, 2013, the State filed an Amended Application to Revoke Appellant’s Suspended Sentence alleging Appellant tested positive for several different controlled substances, admitted to using methamphetamine, refused to submit to a drug test at a counseling session, failed to report after May 13, 2013, refused to allow a home visit, failed to attend group counseling and failed to gain employment. Following an August 29, 2013 hearing on the application to revoke, the Honorable Kurt G. Glassco, District Judge, revoked Appellant’s suspended sentence in full.
In Appellant’s first proposition of error he claims that his revocation was excessive in light of the alleged probation violations. Appellant argues that Judge Glassco abused his discretion because the revocation was too harsh; the revocation of his suspended sentence was caused by his drug addiction and that as a result, he deserves to have his sentence modified. In order to revoke a suspended sentence, the State need only prove to the trial court that one of the conditions of probation has been violated. Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557 (citing McQueen v. State, 1987 OK CR 162, I 2, 740 P.2d 744, 745). Here the State has established and Appellant has admitted to several violations. A trial court’s order of revocation will not be reversed unless there is an abuse of discretion reflected in the record. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. There is sufficient evidence in the appellate record to support the trial court’s decision to revoke the suspended sentence of Appellant in this case. Appellant was provided and failed several different forms of treatment and was previously sanctioned. Appellant has not established that Judge Glassco abused his discretion in deciding to revoke his suspended sentence. This proposition of error is without merit.
In Appellant’s second proposition of error, he argues that Judge Glassco abused his discretion by including one year of post-imprisonment supervision in the revocation order in this case. Appellant argues that ordering one year of post-imprisonment supervision, which would occur beyond the expiration of his suspended sentence, is an impermissible lengthening of his sentence. The State contends that 22 O.S. § 991a(A)(1)(f) provides Judge Glassco with the authority to sentence Appellant to post-imprisonment supervision pursuant to an intervening revocation order. Section 991a(A)(1)(f) states in relevant part:
A. Except as otherwise provided in the Elderly and Incapacitated Victim’s Protection Program, when a defendant is convicted of a crime and no death sentence is imposed, the court shall either: 1. Suspend the execution of sentence in whole or in part, with or without probation. The court, in addition, may order the convicted defendant at the time of sentencing or at any time during the suspended sentence to do one or more of the following: f. to confinement as provided by law together with a term of post-imprisonment community supervision for not less than three (3) years of the total term allowed by law for imprisonment, with or without restitution; provided, however, the authority of this provision is limited to Section 843.5 of Title 21 of the Oklahoma Statutes when the offense involved sexual or sexual exploitation; and Sections 865 et seq., 885, 886, 888, 891, 1021, 1021.2, 1021.3, 1040.13a, 1087, 1088, 1111.1, 1115, and 1123 of Title 21 of the Oklahoma Statutes…
According to the State, the phrase at any time during the suspended sentence allowed Judge Glassco to order the post-imprisonment supervision at the time of the revocation. The meaning of the above cited language from subsection A)(1)(f) stating that the sentencing court may order the convicted defendant at the time of sentencing or at any time during the suspended sentence to do one or more of the following is not clear. The State argues that this language refers to the time at which the sentencing judge may order post-imprisonment supervision.
We disagree. This language refers to the time frame during which the sentencing orders must be completed. In other words, the statute directs the sentencing judge that at the time a defendant is convicted and sentenced the sentencing judge may order the defendant to complete certain tasks during the resulting suspended sentence. Accordingly, Section 991a(A)(1)(f) did not authorize Judge Glassco to impose this post-imprisonment supervision pursuant to a revocation order and that portion of the trial court’s order must be vacated as an unauthorized modification of Appellant’s sentence.
DECISION
The August 29, 2013, order of the District Court of Tulsa County, revoking in full the suspended portion of Appellant’s sentence in Case No. CF-2010-4306, is AFFIRMED; the one year of post-imprisonment supervision is VACATED and the case is REMANDED for issuance of a revocation order 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.
Footnotes:
- 1 In Appellant's first proposition of error he claims that his revocation was excessive in light of the alleged probation violations.
- 2 The State contends that 22 O.S. § 991a(A)(1)(f) provides Judge Glassco with the authority to sentence Appellant to post-imprisonment supervision pursuant to an intervening revocation order.
- 3 We disagree. This language refers to the time frame during which the sentencing orders must be completed.
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 701.8 - Crimes Against Children
- Okla. Stat. tit. 22 § 991a(A)(1)(f) - 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:
- Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557
- McQueen v. State, 1987 OK CR 162, "I 2, 740 P.2d 744, 745
- Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565