Thomas Lynn Spann v The State Of Oklahoma

RE-2017-706

Filed: Nov. 8, 2018

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Thomas Lynn Spann appealed his conviction for Cruelty to Animals. Conviction and sentence: A $1,000 fine and five years in prison, with one year served and the rest suspended under probation. Judge Ken Graham’s decision to revoke Spann’s suspended sentence was upheld. Judge Kuehn dissented, noting that the court did not adequately assess Spann's ability to pay his fees before revoking his probation.

Decision

The final order of June 22, 2017, revoking in full the suspension order in Stephens County District Court Case No. CF-2012-436A, is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), MANDATE IS ORDERED ISSUED on the filing of this decision.

Issues

• Was there a denial of due process in the revocation of Appellant's suspended sentence?
• Did the District Court abuse its discretion by fully revoking Appellant's remaining suspended sentence based on extra-application allegations?
• Was there sufficient evidence that Appellant substantially corrected the violations or that circumstances mitigated against revocation?
• Did the trial court err by failing to consider Appellant's ability to pay before revoking for failure to pay costs and fees?
• Was the stipulation to the probation violations a valid basis for the trial court to revoke the suspended sentence in full?

Findings

• The court did not err in revoking Appellant's suspended sentence.
• The State met its burden of proving Appellant's probation violations.
• Appellant failed to present sufficient evidence of good faith efforts to comply with probation.
• Due process rights were not violated during the revocation process.
• The trial court's failure to make a finding of willfulness regarding the inability to pay was not dispositive.

RE-2017-706

Nov. 8, 2018

Thomas Lynn Spann

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: In the District Court of Stephens County, Case No. CF-2012-436A, Appellant, while represented by counsel, entered a plea of guilty to the offense of Cruelty to Animals. On October 10, 2013, in accordance with a plea agreement, the Honorable Joe H. Enos, District Judge, sentenced Appellant to a $1,000.00 fine and to five (5) years imprisonment, with all but the first one (1) year of that term conditionally suspended under written rules of probation.

On October 20, 2016, the State filed a Motion to Revoke Suspended Sentence. That Motion alleged Appellant had violated his probation by (1) failing to provide verification of employment; (2) being $920.00 in arrears on supervision fees due the Department of Corrections; (3) failing to pay restitution of $152.44; and (4) failing to pay $75.00 per month beginning October 2015 towards costs, fines, and fees and thereby being in arrears of $675.00.

On November 10, 2016, the parties appeared before the Honorable Ken Graham, District Judge, on the Motion to Revoke. While represented by counsel, Appellant stipulated to the probation violations contained in that Motion, and by agreement, further revocation proceedings as to punishment were set off for a period of two months to allow Appellant an opportunity to gain compliance with his probation requirements. This two-month period was expanded for another two months in January of 2017, and two months later, continued again to June 22, 2017.

At the June 22nd hearing, Appellant appeared with counsel before Judge Graham. Appellant’s probation officer provided a Supplemental Report at this hearing as to Appellant’s probation status. That report revealed Appellant remained significantly delinquent on all payments except that of his restitution of $152.44, which he had paid in full on January 3rd. The report further revealed that Appellant had not verified employment nor verified he was making weekly job searches as directed. Additionally, there was attached to the report copies of four traffic citations issued to Appellant by the City of Duncan on May 28th. Lastly, the report advised that on June 19th, Appellant presented an appointment slip to his probation officer that had been altered in an attempt to prove that he had not missed an earlier appointment that probation records showed was scheduled.

After hearing from the State, defense counsel, and from Appellant personally in response to the report and his efforts towards fulfilling his probation obligations, Judge Graham revoked Appellant’s suspended sentence in full.

Appellant now appeals that final order of revocation, and he raises one proposition of error: The District Court denied due process and abused its discretion by fully revoking Appellant’s remaining suspended sentence based on extra-application allegations. The violations actually alleged in the application were either invalid, substantially corrected, or were offset by financial inability and/or mitigating circumstances.

Having thoroughly considered this proposition and the entire record before this Court, including the original record, transcript, and briefs of the parties, the Court finds no error warranting reversal or modification of the revocation order.

On June 22nd, Appellant was before the District Court after he had stipulated to those probation violations set out within the State’s Motion to Revoke. With that stipulation, the State had met its burden of proving Appellant’s probation violations, and the District Court thereby had authority to enter a revocation order.

Once the State meets its burden of proving a probation violation, it is up to the probationer to present circumstances that might militate against revocation of the suspension order. With Appellant’s stipulation, it was agreed that the punishment decision would be set off for two months in order that Appellant could have additional time to show he could fulfill his probation requirements. He could thereby present circumstances that might militate against revocation of the suspension order.

Although Appellant was eventually afforded more than seven months to come into compliance, he did not do so within any significant degree. Although Appellant did offer several excuses for those behaviors described in the report that did not directly concern the violations to which he had stipulated, except for his payment of restitution, he wholly failed to show any significant progress in rectifying the violations to which he had stipulated and failed to provide a reasonable excuse for not doing so. Lacking was evidence of those good faith efforts to comply with probation payment requirements as described in Sparks v. State.

We therefore do not find this record reveals that abuse of discretion required for relief from a trial court’s decision to revoke.

DECISION

The final order of June 22, 2017, revoking in full the suspension order in Stephens County District Court Case No. CF-2012-436A, is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), MANDATE IS ORDERED ISSUED on the filing of this decision.

OPINION BY: HUDSON, J.

LUMPKIN, P.J.: CONCUR

LEWIS, V.P.J.: CONCUR

KUEHN, J.: CONCUR IN RESULTS

ROWLAND, J.: CONCUR

KUEHN, JUDGE, CONCURRING IN RESULT: I concur in result. I agree that the trial court did not abuse its discretion in revoking Appellant’s suspended sentence in full. Appellant stipulated to the Application to Revoke, making the only issue before the trial court whether to revoke the suspended sentence in part or in full.

To aid this decision, the trial court delayed the sentencing hearing several times. This delay was intended to allow Appellant to meet the conditions of his suspended sentence. While Appellant took this opportunity to pay restitution, he failed to comply with the remainder of the conditions he had already admitted violating.

Thus, at the time of the revocation hearing, Appellant had only partially mitigated his failure to comply with the conditions of his suspended sentence. At the sentencing hearing, the State provided evidence that, during the time of delay, Appellant had continued to violate his probation with allegations not contained in the Application.

Appellant claims the trial court should not have considered this evidence. However, this represents a misunderstanding of the procedural posture of the case. Certainly, had the trial court been deciding whether to revoke Appellant’s suspended sentence initially, the court could not have considered allegations not contained in the State’s Application to Revoke.

However, because Appellant stipulated to the Application, the State was relieved of its burden to prove the allegations, and the revocation order was a certainty. The trial court had the authority at that point to revoke Appellant’s sentence in full, based on that stipulation. Instead, the parties and the trial court agreed to wait to sentence Appellant, conditional on his behavior during the delay.

If Appellant could comply, he might avoid the consequence of full revocation. The trial court was presented with evidence that, not only had Appellant failed to correct the violations he had previously admitted, he continued to violate other conditions of probation. It was reasonable for the court to take all of Appellant’s interim behavior into account in determining whether to revoke his sentence in full.

Appellant’s due process rights were not violated by this because, by stipulation, Appellant had already agreed that his suspended sentence should be revoked. He had full notice of the violations leading to that revocation. Several of Appellant’s violations were for failure to pay costs and fees. Appellant argues that, without a judicial finding that he was able to pay, his probation should not have been revoked.

The Majority erroneously suggests that Appellant had the burden to show that this failure was not willful. In Bearden v. Georgia, the Supreme Court held a defendant’s probation cannot be revoked for his failure to pay a court-imposed fine or restitution absent evidence and a finding that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate.

The Court held that a sentencing court must inquire into the reasons for the failure to pay.

Under Bearden and Turner, the trial judge must inquire into Appellant’s ability to pay before imprisonment. In addressing the lack of payment violation, the suggestion that Appellant had a burden to prove his inability to pay is contrary to this mandate.

The trial court in this matter failed to make a finding of willfulness, which was error. However, I would find this issue is not dispositive here because Appellant stipulated to the original allegations of failure to pay. That stipulation disposed of the issue of revocation itself on that basis.

The record shows that the trial court heard and considered Appellant’s evidence in mitigation on this issue when deciding to revoke his sentence in full.

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Footnotes:

1. Robinson v. State, 1991 OK CR 44, 809 P.2d 1320, 1321.
2. Tilden v. State, 2013 OK CR 10, 10, 306 P.3d 554, 557.
3. Sparks v. State, 1987 OK CR 247, ¶ 7, 745 P.2d 751, 752.
4. McCaskey v. State, 1989 OK CR 63, ¶ 4, 781 P.2d 836, 837.
5. Rychlec v. State, 1971 OK CR 160, ¶ 2, 483 P.2d 764, 764-65.
6. Lennox v. State, 1984 OK CR 22, ¶¶ 6-7, 674 P.2d 1146, 1149.
7. Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L.Ed.2d 221 (1983).
8. Turner v. Rogers, 564 U.S. 431, 131 S. Ct. 2507, 180 L.Ed.2d 452 (2011).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Cruelty to Animals
• Okla. Stat. tit. 22 § 983 - Revocation of Sentence
• Okla. Stat. tit. 22 § 982 - General Provisions for Probation
• Okla. Stat. tit. 57 § 510 - Payment of Restitution
• Okla. Stat. tit. 21 § 142 - Burden of Proof in Criminal Cases
• Okla. Stat. tit. 21 § 741 - Legal Consequences of Income and Employment

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:

• Robinson v. State, 1991 OK CR 44, 809 P.2d 1320, 1321
• Sparks v. State, 1987 OK CR 247, I 7, 745 P.2d 751, 752
• McCaskey v. State, 1989 OK CR 63, I 4, 781 P.2d 836, 837
• Tilden v. State, 2013 OK CR 10, 10, 306 P.3d 554, 557
• Rychlec v. State, 1971 OK CR 160, I 2, 483 P.2d 764, 764-65
• Lennox v. State, 1984 OK CR 22, III 6-7, 674 P.2d 1146, 1149