Richard James Nunes v The State of Oklahoma
RE-2018-1236
Filed: Dec. 12, 2019
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Richard James Nunes appealed his conviction for violating probation. Conviction and sentence were upheld, revoking his eight-year suspended sentence. Judge Kuehn dissented.
Decision
The order of the District Court of Seminole County revoking in full Appellant's eight year suspended sentence in Case No. CF-2014-450 is AFFIRMED.
Issues
- Was there an abuse of discretion by the trial court in revoking Appellant's suspended sentence due to the timing of the revocation hearing?
- Did the statutory requirement for a timely revocation hearing under 22 O.S.Supp.2016, § 991b(A) begin to run without Appellant entering a plea of not guilty to the motion to revoke?
- Was the delay in conducting the revocation hearing primarily caused by Appellant's actions as an absconder from probation?
Findings
- The court did not err in revoking Appellant's suspended sentence.
- The evidence was sufficient to support the revocation of Appellant's suspended sentence.
- The trial court did not abuse its discretion regarding the timeliness of the revocation hearing.
RE-2018-1236
Dec. 12, 2019
Richard James Nunes
Appellantv
The State of Oklahoma
Appellee
v
The State of Oklahoma
Appellee
SUMMARY OPINION
HUDSON, JUDGE: Appellant, Richard James Nunes, appeals from the revocation in full of his eight year suspended sentence in Case No. CF-2014-450 in the District Court of Seminole County, by the Honorable George Butner, District Judge. On March 12, 2015, Appellant entered a plea of guilty to Count 1 – Possession of a Stolen Vehicle, felony, after former conviction of two or more felonies; and Count 2 – Altering License Plate/Decal, misdemeanor. He was convicted and sentenced on Count 1 to a term of ten years, with all but the first two years suspended pursuant to rules and conditions of probation; and on Count 2 to a term of one year, with the sentences to run concurrently.
On December 27, 2017, the State filed a motion to revoke Appellant’s suspended sentence alleging he violated probation by failing to report when he was released from confinement and by being an absconder from probation. On January 23, 2018, Appellant made his initial appearance without counsel on the motion to revoke. On February 2, 2018, counsel was appointed for Appellant. On February 8, 2018, Appellant posted bond and was released from jail. On February 15, 2018, Appellant failed to appear at a scheduled hearing. Appellant next appeared, without counsel, on October 16, 2018. On October 26, 2018, counsel was appointed for Appellant. On November 15, 2018, Appellant appeared with counsel at a status conference and the matter was continued to November 26, 2018.
On November 26, 2018, the hearing on the motion to revoke was held before Judge Butner. The State called Ralph Stumpf (“Stumpf”), the probation officer assigned to Appellant’s case. Stumpf testified that Appellant never reported after he was released from incarceration, and was considered an absconder from probation. Stumpf detailed several unsuccessful attempts he had made to locate Appellant. Stumpf said Appellant was caught when officers went to the apartment of a known acquaintance of Appellant, and Appellant ran out the back door. Appellant testified and gave varying reasons for his failure to report and to abide by his rules and conditions of probation. Judge Butner found that Appellant violated probation as alleged and revoked Appellant’s eight year suspended sentence in full. Appellant appeals asserting one proposition of error.
PROPOSITION I: THE COURT SHOULD FIND THE TRIAL COURT ABUSED ITS DISCRETION IN REVOKING APPELLANT’S SUSPENDED SENTENCE BECAUSE THE REVOCATION HEARING WAS NOT HELD IN A TIMELY MANNER.
ANALYSIS “Whenever a sentence has been suspended by the court after conviction of a person for any crime, the suspended sentence of the person may not be revoked, in whole or part, for any cause unless a petition setting forth the grounds for such revocation is filed by the district attorney with the clerk of the sentencing court and competent evidence justifying the revocation of the suspended sentence is presented to the court at a hearing to be held for that purpose within twenty (20) days after the entry of the plea of not guilty to the petition, unless waived by both the state and the defendant.” 22 O.S.Supp.2016, § 991b(A). Appellant acknowledges that the 20 day rule in Section 991b is triggered by a plea of not guilty to the motion to revoke, but claims he was never given the opportunity to enter a plea. Appellant contends this Court should conclude the hearing in this case was not timely, no valid waiver appears in the record and plain error occurred. He asks that the order revoking his suspended sentence be reversed and the matter remanded to the District Court with instructions to dismiss the motion to revoke.
As the State argues, and Appellant acknowledges, Appellant never entered a plea of not guilty to the motion to revoke his suspended sentence in this case. Therefore, according to the express language of Section 991b(A), the statutory twenty day time period for conducting the revocation hearing never began to run. 22 O.S.Supp.2016, § 991b(A). Moreover, the lengthy delay in conducting the revocation hearing in this case was primarily caused by Appellant absconding from responsibilities.
DECISION The order of the District Court of Seminole County revoking in full Appellant’s eight year suspended sentence in Case No. CF-2014-450 is AFFIRMED.
Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.
Footnotes:
- 22 O.S.Supp.2016, § 991b(A).
- 22 O.S.Supp.2016, § 991b(A).
Oklahoma Statutes citations:
- Okla. Stat. tit. 22 § 991b(A) - Revocation of Suspended Sentences
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:
No case citations found.