Russell John Weiss v The State Of Oklahoma

RE-2014-392

Filed: Mar. 18, 2015

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Russell John Weiss appealed his conviction for Lewd Molestation and Rape in the First Degree. Conviction and sentence were affirmed, but the court agreed to remove one year of post-imprisonment supervision. Judge Thygesen dissented regarding the extension of the supervision period.

Decision

The revocation of Appellant's suspended sentences in Muskogee County District Court Case No. CF-1995-17 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. (2015), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• was there an abuse of discretion in including one year of post-imprisonment supervision in the revocation order?
• did the District Court abuse its discretion in revoking Appellant's suspended sentences in full?
• was the Order Revoking Suspended Sentence incorrect regarding which count was revoked?

Findings

• the one year of post-imprisonment supervision is vacated
• the revocation of Appellant's suspended sentences is affirmed

RE-2014-392

Mar. 18, 2015

Russell John Weiss

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE:

On May 22, 1995, Appellant entered a plea of guilty in Muskogee County District Court Case No. CF-1995-17 to Count 1, Lewd Molestation; Count 2, Lewd Molestation; and Count 3, Rape in the First Degree. Appellant was sentenced to twenty years imprisonment on Counts 1 and 2 and forty years imprisonment on Count 3, with all but the first twenty years suspended. The sentences were ordered to run concurrently.

On April 23, 2009, the State filed an application to revoke Appellant’s Case No. CF-1995-17 suspended sentences alleging that Appellant absconded. Following a revocation hearing, the Honorable Norman D. Thygesen, Associate District Judge, found Appellant had violated the rules and conditions of his probation and revoked Appellant’s suspended sentences in full. Appellant appeals from the revocation of his suspended sentences.

In Appellant’s first proposition of error, he argues that Judge Thygesen abused his discretion by including one year of post-imprisonment supervision in the revocation order. Appellant argues that ordering one year of post-imprisonment supervision is an impermissible lengthening of his sentence in this case. The State concedes this proposition and agrees that the period of post-imprisonment supervision should be vacated. We agree.

In his second proposition of error, Appellant seeks an order nunc pro tunc to modify the Order Revoking Suspended Sentence. Appellant argues that the Order Revoking Suspended Sentence incorrectly states which count was revoked. While the State acknowledges the language is mistaken, this issue has not been presented to Judge Thygesen to allow him to correct any error made before asking this Court to intervene.

In Appellant’s third proposition of error, he argues the District Court abused its discretion in revoking his suspended sentences in full. 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. Appellant has not shown an abuse of discretion. The facts presented in this case support Judge Thygesen’s decision.

DECISION

The revocation of Appellant’s suspended sentences in Muskogee County District Court Case No. CF-1995-17 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. (2015), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. Grimes v. State, 2011 OK CR 16, 21, 251 P.3d 749, 755.
2. Jones v. State, 1988 OK CR 20, 8, 749 P.2d 563, 565.
3. Walker v. State, 1989 OK CR 65, 5, 780 P.2d 1181, 1183.
4. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015).

Oklahoma Statutes citations:

No Oklahoma statutes found.

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:

• Grimes v. State, 2011 OK CR 16, I 21, 251 P.3d 749, 755
• Jones v. State, 1988 OK CR 20, 9 8, 749 P.2d 563, 565
• Walker v. State, 1989 OK CR 65, IT 5, 780 P.2d 1181, 1183