Brian Frederick Joice v The State Of Oklahoma

RE-2018-1233

Filed: Mar. 5, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Brian Frederick Joice appealed his conviction for Obtaining Cash or Merchandise by Bogus Check/False Pretenses. The conviction and sentence was 20 years, all suspended, which means he wasn't sent to prison but had to follow certain rules. Joice's sentence was revoked because he allegedly broke the rules by committing new crimes. Joice raised several points saying that the revocation shouldn't happen. He argued that his original sentence was too long, that the state didn't file the revocation in time, and that he didn't have proper help from his lawyer. The Court found that Joice's lawyer didn't do a good job by not pointing out these issues. Because of this, they decided to cancel (or vacate) the revocation of his sentence and sent the case back to the lower court with orders to dismiss the revocation. Judge Kuehn, Judge Lumpkin, and Judges Hudson and Rowland agreed with the decision, but Judge Lumpkin only agreed in the result.

Decision

The order revoking Appellant's suspended sentence in Muskogee County Case No. CF-2012-30 is VACATED and the matter is REMANDED to the District Court with instructions to DISMISS the State's Application to Revoke with prejudice. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was the revocation order invalid due to Joice's original sentence exceeding the statutory maximum?
• did the district court lack jurisdiction to revoke Joice's suspended sentence because the State's application was filed after the legal portion of the sentence expired?
• did the trial court err by applying the wrong standard of review at the revocation hearing?
• was Joice denied constitutionally effective assistance of counsel due to trial counsel's failure to object to the court's jurisdiction and the use of the wrong standard of review?
• did the accumulation of errors in Joice's case deprive him of due process of law?

Findings

• the revocation order was invalid and requires modification
• the district court lacked jurisdiction to revoke Joice's suspended sentence
• the trial court erred when it applied the wrong standard of review
• Mr. Joice was denied constitutionally effective assistance of counsel
• the accumulation of error in this case deprived Mr. Joice of due process of law
• the order revoking Joice's suspended sentence is VACATED
• the matter is REMANDED to the District Court to DISMISS the State's Application to Revoke with prejudice

RE-2018-1233

Mar. 5, 2020

Brian Frederick Joice

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: On February 26, 2013, Appellant Joice, represented by counsel, entered a guilty plea to Count 1: Obtaining Cash or Merchandise by Bogus Check/False Pretenses in violation of 21 O.S.2011, § 1541.1 in Muskogee County Case No. CF-2012-30. The District Court of Muskogee County, the Honorable Norman D. Thygesen, Associate District Judge, sentenced Joice to twenty (20) years, all suspended, subject to terms and conditions of probation.

On February 21, 2018, the State filed an Application to Revoke Joice’s suspended sentence alleging he violated his terms and conditions of probation by committing the new criminal offenses alleged in Muskogee County Case No. CF-2018-143. The application was amended on March 26, 2018 to include additional probation violations consisting of criminal offenses alleged in Muskogee County Case No. CF-2018-260. Judge Thygesen found Joice violated his terms and conditions of probation and revoked his suspended sentence in full. It is from this judgment that Joice appeals, raising the following propositions of error:

1. The revocation order was invalid and requires modification, because Joice’s original sentence exceeded the statutory maximum;
2. The district court lacked jurisdiction to revoke Joice’s suspended sentence, because the State’s application was filed long after the legal portion of the sentence had expired;
3. The trial court erred when it applied the wrong standard of review at the revocation hearing;
4. Mr. Joice was denied constitutionally effective assistance of counsel based on trial counsel’s failure to object to lack of the court’s jurisdiction and to the use of the wrong standard of review; and
5. The accumulation of error in this case deprived Mr. Joice of due process of law.

We find merit in Joice’s claim of ineffective assistance of counsel warranting relief, and find it unnecessary to address the remaining propositions of error. The order revoking Joice’s suspended sentence is VACATED and the matter is REMANDED to the District Court of Muskogee County with instructions to DISMISS the State’s Application to Revoke with prejudice. An application to revoke a suspended sentence must be filed prior to the expiration of the suspended sentence to vest the trial court with judicial power and authority to hear and determine the issue of revocation. See Degraffenreid v. State, 1979 OK CR 88, I 10, 599 P.2d 1107, 1109. An application filed after expiration of the suspended sentence terminates the District Court’s power and authority to revoke the suspended sentence. Id.; Hemphill v. State, 1998 OK CR 7, I 3, 954 P.2d 148, 149.

Joice alleges, and the State concedes, that he was provided ineffective assistance of counsel at the revocation proceeding. Upon entry of his guilty plea in 2013 for a bogus check charge in Muskogee County Case No. CF-2012-30, Joice was assessed a sentence of twenty (20) years. The State admits that the record in Case No. CF-2012-30 does not, and cannot, standing alone, support a felony conviction. The State did not file a second page with the information alleging prior[1] felony convictions, and there was no court reporter present for Joice’s plea and sentencing. All parties agree that the maximum unenhanced punishment for Joice’s charged offense, which consisted of writing a bogus check in the amount of $35.99, was one (1) year in the county jail. Had Joice been properly sentenced, his suspended sentence would have expired on February 26, 2014, at the latest, making the State’s 2018 revocation application untimely, and depriving the District Court of jurisdiction to revoke the expired sentence.

This Court determines ineffective assistance of counsel by a two-part procedure mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). The Strickland test requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s deficient performance prejudiced the defense. Vanderpool v. State, 2018 OK CR 39 I 49, 434 P.3d 318, 329; see Strickland, 466 U.S. at 687. Prejudice may be demonstrated by a show[ing] that there is a reasonable probability that the outcome of the trial would have been different but for counsel’s unprofessional errors. Malone v. State, 2013 OK CR 1, I 16, 293 P.3d 198, 207.

Counsel’s failure to object on grounds of jurisdiction and excessive sentencing resulted in prejudicial error. There is a reasonable probability that these issues, if raised in the revocation proceeding, would have resulted in a different outcome. We recognize that the scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. Tilden v. State, 2013 OK CR 10, 3-4, 306 P.3d 554, 555-556; Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020); Nesbitt v. State, 2011 OK CR 19, I 5, 255 P.3d 435, 437; Grimes v. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755.

In this instance, we find plain error in the revocation proceeding warrants relief. Joice’s original sentence was illegal; the State’s revocation application was untimely; the District Court lacked jurisdiction to revoke the expired sentence; and the revocation of the expired sentence was invalid.

DECISION

The order revoking Appellant’s suspended sentence in Muskogee County Case No. CF-2012-30 is VACATED and the matter is REMANDED to the District Court with instructions to DISMISS the State’s Application to Revoke with prejudice. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

OPINION BY: LEWIS, P.J.:

KUEHN, V.P.J.: Concur

LUMPKIN, J.: Concur in Result

HUDSON, J.: Concur

ROWLAND, J.: Concur

RA/F

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Footnotes:

1. Okla. Stat. tit. 21 § 1541.1
2. Degraffenreid v. State, 1979 OK CR 88, I 10, 599 P.2d 1107, 1109
3. Hemphill v. State, 1998 OK CR 7, I 3, 954 P.2d 148, 149
4. Strickland v. Washington, 466 U.S. 668, 687 (1984)
5. Vanderpool v. State, 2018 OK CR 39 I 49, 434 P.3d 318, 329
6. Malone v. State, 2013 OK CR 1, "I 16, 293 P.3d 198, 207
7. Tilden v. State, 2013 OK CR 10, 3-4, 306 P.3d 554, 555-556
8. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020)
9. Nesbitt v. State, 2011 OK CR 19, I 5, 255 P.3d 435, 437
10. Grimes v. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755
11. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1541.1 - Obtaining Cash or Merchandise by Bogus Check/False Pretenses
• Okla. Stat. tit. 22 § 1.2(D)(4) - Rules of the Oklahoma Court of Criminal Appeals

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:

• Degraffenreid v. State, 1979 OK CR 88, I 10, 599 P.2d 1107, 1109
• Hemphill v. State, 1998 OK CR 7, I 3, 954 P.2d 148, 149
• Vanderpool v. State, 2018 OK CR 39 I 49, 434 P.3d 318, 329
• Strickland v. Washington, 466 U.S. 668, 687 (1984)
• Malone v. State, 2013 OK CR 1, "I 16, 293 P.3d 198, 207
• Tilden v. State, 2013 OK CR 10, 3-4, 306 P.3d 554, 555-556
• Nesbitt v. State, 2011 OK CR 19, I 5, 255 P.3d 435, 437
• Grimes v. State, 2011 OK CR 16, I 17, 251 P.3d 749, 755