James Wilbur Allen v The State Of Oklahoma

RE 2016-0784

Filed: Feb. 15, 2017

Not for publication

Prevailing Party: The State of Oklahoma

Summary

James Wilbur Allen appealed his conviction for child sexual abuse. His conviction and sentence involved six counts, each leading to a twenty-year sentence that allowed him to stay out of prison if he completed a treatment program. However, after violating probation rules by committing new offenses like driving under the influence and failing to report his arrests, the court decided to revoke his suspended sentences. Allen argued that the court should not have added a year of supervision after prison, but the court corrected the paperwork to remove that requirement. The Court of Criminal Appeals upheld the revocation of Allen's suspended sentences, deciding that the issues raised by Allen were resolved by the court's corrections. No judges dissented.

Decision

As the Judgment and Sentence on Motion to Revoke Suspended Sentence has been corrected omitting the imposition of post-imprisonment supervision, the revocation of Appellant's suspended sentences in Delaware County District Court Case No. CF-2001-62 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there authority for the District Court to modify Appellant's sentences by adding post-imprisonment supervision?
• Did the trial court's correction of the written revocation order render Appellant's claim moot?

Findings

• the court erred in imposing post-imprisonment supervision, but the error was subsequently corrected
• the revocation of Appellant's suspended sentences is affirmed

RE 2016-0784

Feb. 15, 2017

James Wilbur Allen

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE LEWIS, VICE PRESIDING JUDGE:

James Wilbur Allen, Appellant, pled guilty on August 28, 2001, in Delaware County District Court Case No. CF-2001-62, to six counts of Child Sexual Abuse. He was sentenced to twenty years on each count with the balance suspended upon successful completion of a sex offender treatment program while incarcerated. The sentences were ordered to run concurrently. He was also fined $100.00. Ten years of Appellant’s suspended sentences were revoked following a revocation hearing on March 12, 2008, with the remaining suspended portions of the sentences supervised under the original rules and conditions of probation. The State filed an application to revoke the balance of Appellant’s suspended sentences on July 15, 2016, alleging Appellant committed the new crimes of Driving Under the Influence, Speeding, and Driving with License Cancelled/Suspended/Revoked. The State also alleged Appellant failed to report his arrest as required, denied all law enforcement contact with his probation officer, then admitted to his probation officer that he had been frequenting bars and consuming alcoholic beverages for the past few months; and was in arrears with his probation fees. Following a revocation hearing on August 15, 2016, the Honorable Robert G. Haney, District Judge, found Appellant violated the conditions of probation and revoked Appellant’s suspended sentences in full, with credit for time served. The Judgment and Sentence on Motion to Revoke Suspended Sentence ordered Appellant to serve a term of post-imprisonment supervision for a period of one year. Appellant appeals the revocation of his suspended sentences, raising the sole proposition of error that the District Court was without authority to modify his sentences by adding post-imprisonment supervision. See Friday v. State, 2016 OK CR 16, 114-6, 387 P.3d 928. The State answers that this claim is without merit as it has been rendered moot by the trial court’s correction of the written revocation order. The trial judge’s oral pronouncement specified no post-imprisonment supervision. The language imposing post-imprisonment supervision, however, appeared in the Judgment and Sentence on Motion to Revoke Suspended Sentence. This was remedied by the trial court on February 15, 2017, by the trial court issuing a Nunc Pro Tunc Judgment and Sentence on Motion to Revoke Suspended Sentence.

DECISION

As the Judgment and Sentence on Motion to Revoke Suspended Sentence has been corrected omitting the imposition of post-imprisonment supervision, the revocation of Appellant’s suspended sentences in Delaware County District Court Case No. CF-2001-62 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision.

REVOCATION APPEAL FROM THE DISTRICT COURT OF DELAWARE COUNTY, THE HONORABLE ROBERT G. HANEY, DISTRICT JUDGE

APPEARANCES AT APPEAL REVOCATION PROCEEDING
LEE GRIFFIN
OKLAHOMA INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OKLAHOMA 73070
COUNSEL FOR APPELLANT

ROBERT W. JACKSON
P.O. BOX 367
JAY, OKLAHOMA 74346
COUNSEL FOR DEFENDANT

STEPHANIE BUSH
ASSISTANT DISTRICT ATTORNEY
DELAWARE COUNTY COURTHOUSE
327 S. 5TH ST.
JAY, OKLAHOMA 74346
COUNSEL FOR THE STATE

MICHAEL J. HUNTER
ATTORNEY GENERAL OF OKLAHOMA
KEELEY L. MILLER
ASSISTANT ATTORNEY GENERAL
313 N.W. 21st STREET
OKLAHOMA CITY, OKLAHOMA 73105
COUNSEL FOR THE STATE

OPINION BY: LEWIS, V.P.J.
LUMPKIN, P.J.: Concurs in Result
JOHNSON, J.: Not Participating
SMITH, J.: Concurs
HUDSON, J.: Concurs

RA 3

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Footnotes:

1. See Friday v. State, 2016 OK CR 16, 114-6, 387 P.3d 928.
2. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017).

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:

• Friday v. State, 2016 OK CR 16, 114-6, 387 P.3d 928