Gordon Lee George, Jr. v State Of Oklahoma

RE-2016-1049

Filed: Aug. 30, 2018

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Gordon Lee George, Jr. appealed his conviction for violating probation conditions. Conviction and sentence were upheld for his original case involving statutory rape, with a 20-year sentence, where 8 years were to be served. However, the court reversed the revocation of his sentences from his other cases involving attempted larceny and possession of a controlled substance. Judge Hudson disagreed with the majority opinion.

Decision

The order of the District Court of Oklahoma County revoking George's suspended sentence in Case No. CF-2005-6817 is AFFIRMED. The District Court's order revoking George's suspended sentences in Case Nos. CF-2010-2865, CF-2015-2061, and CF-2015-4378 is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the probation condition that prohibited Mr. George from having contact with anyone under the age of 18 unconstitutional as it denied him contact with his biological son?
• Did the State present sufficient evidence to prove that Mr. George willfully violated the conditions of his probation by a preponderance of the evidence?
• Did the trial court abuse its discretion when it revoked Mr. George's suspended sentence?
• Did the trial court abuse its discretion by revoking Mr. George's suspended sentences in full?
• Did the trial court revoke Mr. George on grounds which were not alleged by the State, thus violating due process?
• Did the trial court err when it ordered concurrently running sentences to run consecutively?
• Did the trial court's mistaken impression that it was without authority to run Mr. George's sentence concurrently constitute an abuse of discretion?

Findings

• The probation condition prohibiting contact with anyone under the age of 18 was not unconstitutional.
• The State presented sufficient evidence to prove that Mr. George willfully violated the conditions of his probation.
• The trial court did not abuse its discretion when it revoked Mr. George's suspended sentence in full.
• The court did not abuse its discretion by revoking Mr. George on grounds which were not alleged by the State.
• The trial court erred when it ordered concurrently running sentences to run consecutively.
• The trial court's mistaken impression that it was without authority to run Mr. George's sentence concurrently constituted an abuse of discretion.

RE-2016-1049

Aug. 30, 2018

Gordon Lee George, Jr.

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE:

On February 27, 2006, Appellant George, represented by counsel, entered a guilty plea to Second Degree (Statutory) Rape in Oklahoma County Case No. CF-2005-6817. George was sentenced to twenty (20) years with all but the first eight (8) years suspended, subject to terms and conditions of probation. On July 22, 2010, George entered a guilty plea to Attempted Larceny of a Vehicle and Possession of a Controlled Dangerous Substance (Methamphetamine), after former conviction of a felony, in Oklahoma County Case No. CF-2010-2865. George was sentenced to ten (10) years for each count, the sentences to run concurrently with each other. The balance of the sentences was to be suspended upon George’s successful completion of a substance abuse treatment program.

On October 9, 2012, George’s suspended sentences in Case Nos. CF-2005-6817 and CF-2010-2865 were revoked in part, after George stipulated to the violations alleged in the State’s application. On June 26, 2016, George entered a guilty plea to Possession of a Controlled Dangerous Substance (Methamphetamine), after former conviction of two or more felonies in Oklahoma County Case No. CF-2015-2061. That same date he entered a guilty plea to three counts of False Declaration of Ownership to a Pawnbroker, after former conviction of two or more felonies, in Oklahoma County Case No. CF-2015-4378. George was sentenced to fifteen (15) years for each of the counts in the two cases, the sentences to be served concurrently with each other, with the balance suspended after completion of Drug Offender Work Camp.

On July 25, 2016, the State filed an Application to Revoke George’s suspended sentence in Case No. CF-2005-6817, alleging George violated his probation by having contact with or residing with children under the age of 18. On October 11, 2016, the State filed an Application to Revoke George’s suspended sentences in Case Nos. CF-2010-2865, CF-2015-2061 and CF-2015-4378 alleging George violated his terms and conditions of probation by failing to pay court costs and by having contact with a child under the age of 18.

At the conclusion of a revocation hearing conducted November 7, 2016, in the District Court of Oklahoma County, the Honorable Bill Graves, District Judge, revoked George’s suspended sentences in full. From this Judgment and Sentence, George appeals raising the following propositions of error:

1. The probation condition that prohibited Mr. George from having contact with anyone under the age of 18 was unconstitutional as it denied him contact with his biological six year old son who was not the victim in the underlying crime;

2. The State presented insufficient evidence to prove that Mr. George willfully violated the conditions of his probation by a preponderance of the evidence;

3. The trial court abused its discretion when it revoked Mr. George’s suspended sentence, or in the alternative, the trial court abused its discretion when it revoked Mr. George’s suspended sentences in full;

4. The court abused its discretion by revoking Mr. George on grounds which were not alleged by the State in violation of due process;

5. The trial court erred when it ordered concurrently running sentences to run consecutively; and

6. The trial court’s mistaken impression that it was without authority to run Mr. George’s sentence concurrently constituted an abuse of discretion.

The revocation of George’s suspended sentence in Oklahoma County Case No. CF-2005-6817 is AFFIRMED. The district court’s order revoking George’s sentences in Oklahoma County Case Nos. CF-2010-2865, CF-2015-2061 and CF-2015-4378 is REVERSED with instructions to DISMISS.

For purposes of clarification, it is important to note that George’s suspended sentences in the above-referenced cases were each accompanied by terms and conditions of probation. The general conditions were the same for each suspended sentence. However, the specific probationary condition prohibiting George’s contact with or residing with minor children was applicable only to his conviction in Case No. CF-2005-6817. The State’s applications to revoke filed in Case Nos. CF-2010-2865, CF-2015-2061 and CF-2015-4378 alleging contact with a minor as a probation violation were in error. George’s suspended sentences in those four cases could not be revoked for contact with minor children as that was not a probationary condition in those three cases.

Additionally, the only grounds alleged for revoking George’s suspended sentence in Case No. CF-2005-6817 was his contact with a minor child. His suspended sentence in that case could not be revoked for failure to pay court costs as that probation violation was not alleged in Case No. CF-2005-6817.

We now address George’s claim for relief. The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. We examine the basis for the factual determination and consider whether the court abused its discretion.

George alleges at proposition one that his suspended sentence was revoked for being in the same room as his six-year-old biological son. As part of his plea agreement, George’s probationary conditions imposed on February 27, 2006 prohibited him from residing with or having contact with any children under the age of 18. George does not dispute that he violated this probationary term. Rather, he argues that because he was in the presence of his own son, who was not the victim of his charged offense, the probationary term is unconstitutional as applied to him.

In support of this claim, George cites to the Sex Offender Registration statute, which provides an exemption for sex offenders living with minor children if the offender is the parent, stepparent or grandparent of the minor child and the minor child was not the victim of the offense for which the person was required to register. George also argues that as a parent he has a liberty interest to familial association. At the time the condition was imposed in 2006, George had no children and he now argues that any attempt to modify his terms and conditions of probation prior to the birth of his son would have been premature.

We find no abuse of discretion in Judge Grave’s decision to revoke George’s suspended sentence in Case No. CF-2005-6817 on the State’s claim that George had contact with a minor in violation of his probationary terms. The following relevant facts are taken from the appeal record in this matter.

Testimony at George’s revocation hearing established that his probation officer, Barbara Wintz, conducted a home inspection and discovered that a minor child was present. When confronted by Wintz, George confirmed the presence of the minor and told Wintz that he was the son of a friend. Wintz advised George that the situation would be discussed later at her office. George did not identify the child as his biological son, and Wintz never saw the child during the home inspection. When George appeared in Wintz’s office, he claimed the child was his biological son.

Despite repeated warnings from Wintz that he could have no contact with minors, George alleged he was confused because his sex offender counselor advised him that he could have contact with a minor if the minor was his biological child. The State argues that George’s challenge to the probationary term is outside of the scope of a revocation appeal and that any challenge to the condition must be raised as part of a direct appeal.

Judge Graves did not address George’s challenge to the constitutionality of the probationary term, finding instead that the State proved by a preponderance of the evidence that George had contact with a minor in violation of his terms and conditions of probation. Even if this Court found the probationary term to be violative of George’s constitutional rights as they relate to any biological child he may have, on the record presented, there is no conclusive evidence establishing that the child present on the day of the visit was George’s biological son, or that George is indeed the parent of any minor, much less the child present the day of the home visit.

This is not the first time that George’s probation has been revoked for violating the prohibition against contact with a minor child. As recently as 2012, George’s suspended sentence in Case No. CF-2005-6817 was revoked after he stipulated to this exact probation violation.

Even on the record presented to the District Court, Judge Graves’s decision constituted an exercise of discretion based on the facts established.

We find no merit in George’s claim that revocation of his suspended sentence in full in Case No. CF-2005-6817 was an abuse of discretion. This Court has repeatedly held that violation of even one condition of probation is sufficient to justify revocation of a suspended sentence.

George’s suspended sentence in this case was partially revoked in 2012. While there is no requirement that the court revoke only a portion of a suspended sentence, the trial court previously exercised that option, and George subsequently violated his terms and conditions of probation. We find no error here requiring reversal.

Because we find merit in George’s claims challenging the revocation of his suspended sentences in Case Nos. CF-2010-2865, CF-2015-2061 and CF-2015-4378, discussion of his remaining propositions of error is MOOT. As noted above, and conceded by the State, the prohibition against contact with minor children was inapplicable to George’s suspended sentences in Case Nos. CF-2010-2865, CF-2015-2061 and CF-2015-4378. The only remaining probation violation alleged by the State in these cases was George’s failure to pay court costs.

We agree with George that the evidence presented at the revocation hearing was insufficient to establish that he failed to pay court costs. The State’s burden is to prove probation violations by a preponderance of the evidence. We do not find such proof in a one-sentence statement that the probationer was delinquent on fees. There was no evidence introduced at the hearing as to the amount of the delinquency, the duration of the failure to pay, the date of the last payment (if any) and George’s ability to make any payments.

The order revoking George’s suspended sentences in Case Nos. CF-2010-2865, CF-2015-2061 and CF-2015-4378 for failure to pay court costs, on this record, was an abuse of discretion. The order revoking George’s suspended sentences in Case Nos. CF-2010-2865, CF-2015-2061 and CF-2015-4378 is REVERSED with instructions to DISMISS.

DECISION

The order of the District Court of Oklahoma County revoking George’s suspended sentence in Case No. CF-2005-6817 is AFFIRMED. The District Court’s order revoking George’s suspended sentences in Case Nos. CF-2010-2865, CF-2015-2061, and CF-2015-4378 is REVERSED with instructions to DISMISS.

Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 22 D.S.Supp.2012 § 991b(A).
2. 57 O.S.Supp.2017, § 590(B).
3. Morrissey v. Brewer, 408 U.S. 471 (1972).
4. Matter of Adoption of Blevins, 1984 OK CIV APP 41, IT 8, 695 P.2d 556, 559-560.
5. Nelson v. Nelson, 1998 OK 10, I 16, 954 P.2d 1219, 1226.
6. Tilden v. State, 2013 OK CR 10, II 3-4, 306 P.3d 554, 555-556.
7. Nesbitt v. State, 2011 OK CR 19, IT 5, 255 P.3d 435, 437.
8. Grimes v. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755.
9. Jones v. State, 1988 OK CR 20, IT 8, 749 P.2d 563, 565.
10. Crowels v. State, 1984 OK CR 29, II 6, 675 P.2d 451, 453.
11. Sparks v. State, 1987 OK CR 247, IT 5, 745 P.2d 751, 752.
12. Robinson v. State, 1991 OK CR 44, II 3, 809 P.2d 1320, 1322.
13. Fleming v. State, 1988 OK CR 162, I 4, 760 P.2d 206, 207.
14. Lewis v. State, 1987 OK CR 138, IT 9, 739 P.2d 534, 535.
15. O.R. p. 64, Stipulation of Fact, Case Nos. CF-2005-6817 and CF-2010-2865, filed October 9, 2012.
16. O.R. p. 78, Order for Installment Payment of Court Costs, entered May 20, 2016, filed May 24, 2016.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Second Degree (Statutory) Rape
• Okla. Stat. tit. 21 § 1431 - Attempted Larceny of a Vehicle
• Okla. Stat. tit. 63 § 2-101 - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 57 § 590(B) (2017) - Sex Offender Registration Exemption
• Okla. Stat. tit. 22 § 991b(A) (2012) - Probation Violation Procedures
• Okla. Stat. tit. 22 § 1.2(D)(4) - Rules of Criminal Appeals
• Okla. Stat. tit. 22 § 991b(A) (2011) - Revocation of Probation
• Okla. Stat. tit. 22 § 992 - Conditions of Suspended Sentences
• Okla. Stat. tit. 21 § 1289.16 - Felony Sentencing and Conditions

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, II 3-4, 306 P.3d 554, 555-556
• Nesbitt v. State, 2011 OK CR 19, IT 5, 255 P.3d 435, 437
• Grimes v. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755
• Jones v. State, 1988 OK CR 20, IT 8, 749 P.2d 563, 565
• Crowels v. State, 1984 OK CR 29, II 6, 675 P.2d 451, 453
• Sparks v. State, 1987 OK CR 247, IT 5, 745 P.2d 751, 752
• Robinson v. State, 1991 OK CR 44, II 3, 809 P.2d 1320, 1322
• Fleming v. State, 1988 OK CR 162, I 4, 760 P.2d 206, 207
• Lewis v. State, 1987 OK CR 138, IT 9, 739 P.2d 534, 535
• Matter of Adoption of Blevins, 1984 OK CIV APP 41, IT 8, 695 P.2d 556, 559-560
• Nelson v. Nelson, 1998 OK 10, I 16, 954 P.2d 1219, 1226
• Morrissey v. Brewer, 408 U.S. 471, 480 (1972)