Rogelio Solis, Jr. v The State Of Oklahoma

RE 2014-0777

Filed: Aug. 13, 2015

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Rogelio Solis, Jr. appealed his conviction for Domestic Abuse - Assault and Battery. Conviction and sentence were upheld, but the requirement for post-imprisonment supervision was removed. Judge Johnson dissented.

Decision

The revocation of Appellant's suspended sentence in Craig County District Court Case No. CF-2011-153 is AFFIRMED, but the matter is REMANDED to the District Court to modify the Judgment and Sentence to exclude any requirement for post-imprisonment supervision. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• was the revocation of Appellant's suspended sentence excessive?
• did the trial court have the authority to impose post-imprisonment supervision?

Findings

• The court did not err in revoking Appellant's suspended sentence in full.
• The trial court properly exercised its discretion regarding the revocation decision.
• The trial court lacked authority to impose post-imprisonment supervision.

RE 2014-0777

Aug. 13, 2015

Rogelio Solis, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. LUMPKIN, VICE PRESIDING JUDGE:

Appellant, Rogelio Solis, Jr., pled guilty December 20, 2011, to Count 1 – Domestic Abuse – Assault and Battery, a felony. He was sentenced to five years in the Department of Corrections, suspended except for three months, with credit for time served and a $1,000.00 fine. Count 2 – Robbery First Degree, a felony, Count 3 – Threaten to Perform Act of Violence, a misdemeanor, and Count 4 – Interference With Emergency Telephone Call, a misdemeanor, were dismissed.

On March 5, 2014, the State filed a motion to revoke Appellant’s suspended sentence alleging Appellant violated the rules and conditions of probation when he was arrested and pled guilty to public intoxication in Cherokee County and was also arrested in Mayes County and entered a plea of no contest to Driving Under the Influence of Alcohol, Transporting an Opened Container and Failure to Maintain Lane. Following a revocation hearing on August 29, 2014, the Honorable Rebecca J. Gore, Special Judge, found Appellant violated the rules and conditions of probation and revoked Appellant’s suspended sentence in full, four years and nine months, with credit for time served.

Appellant appeals the revocation of his suspended sentence raising the following propositions of error:

1. Revocation in full was excessive.
2. The trial court lacked authority to impose post-imprisonment supervision.

We affirm the order of the District Court revoking Appellant’s suspended sentence but, finding merit to Appellant’s second proposition of error, remand the matter to the District Court for further proceedings as set forth below.

1. Appellant argues that revocation in full was excessive and an abuse of discretion based on his efforts to comply with his probation officer’s directives and the improper influences considered by the trial court. The decision to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse thereof. Tilden U. State, 2013 OK CR 10, ¶ 10, 306 P.3rd 554, 557. An ‘abuse of discretion’ has been defined by this Court as a ‘clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application’. Walker v. State, 1989 OK CR 65, ¶ 5, 780 P.2d 1181, 1183. Appellant has not shown an abuse of discretion in this case. The record does not support Appellant’s argument that the trial court improperly considered new charges which were not alleged in the State’s application or Appellant’s medical issues in making her ruling.

2. Section 991a-21 of Title 22 applies to those persons convicted and sentenced on or after November 1, 2012. Section 991a-21 requires the trial court to include a term of post-imprisonment supervision in the sentence of any person who is convicted of a felony and sentenced to a term of confinement with the Department of Corrections. In this case the trial court ordered Appellant to serve a term of post-imprisonment supervision. Appellant argues that he is not subject to the provisions of Section 991a-21 of Title 22 and the State agrees, as the conviction in this case was entered on December 20, 2011. We agree that this proposition of error has merit.

DECISION

The revocation of Appellant’s suspended sentence in Craig County District Court Case No. CF-2011-153 is AFFIRMED, but the matter is REMANDED to the District Court to modify the Judgment and Sentence to exclude any requirement for post-imprisonment supervision. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon the filing of this decision.

REVOCATION APPEAL FROM THE DISTRICT COURT OF CRAIG COUNTY,
THE HONORABLE REBECCA J. GORE, SPECIAL JUDGE

APPEARANCES

AT APPEARANCES ON APPEAL REVOCATION PROCEEDING

DANIEL GIRALDI RANA HILL
THE HARTLEY LAW FIRM
177 WEST DELAWARE AVENUE
P.O. BOX 926
VINITA, OKLAHOMA 74301

NORMAN, OKLAHOMA 73070
COUNSEL FOR DEFENDANT
COUNSEL FOR APPELLANT

SEAN MCCONNELL E. SCOTT PRUITT
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
210 WEST DELAWARE AVENUE
VINITA, OKLAHOMA 74301

JOSHUA L. LOCKETT
ASSISTANT ATTORNEY GENERAL
313 N.W. 21st STREET
OKLAHOMA CITY, OKLAHOMA 73105
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, V.P.J.
SMITH, P.J.: CONCUR IN RESULT
JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
HUDSON, J.: CONCUR

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Footnotes:

1. Okla. Stat. tit. 22 § 991a-21
2. Tilden U. State, 2013 OK CR 10, I 10, 306 P.3rd 554, 557
3. Walker v. State, 1989 OK CR 65, "I 5, 780 P.2d 1181, 1183

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Domestic Abuse - Assault and Battery
• Okla. Stat. tit. 21 § 791 - Robbery in the First Degree
• Okla. Stat. tit. 21 § 1378 - Threatening to Perform Act of Violence
• Okla. Stat. tit. 21 § 1289.25 - Interference with Emergency Telephone Call
• Okla. Stat. tit. 21 § 843 - Robbery in the First Degree (2011)
• Okla. Stat. tit. 21 § 1377 - Threaten to Perform Act of Violence (2011)
• Okla. Stat. tit. 21 § 1342 - Interference with Emergency Telephone Call (2011)
• Okla. Stat. tit. 22 § 991a-21 - Post-Imprisonment Supervision

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
• Walker v. State, 1989 OK CR 65, I 5, 780 P.2d 1181, 1183