Leroy Alexander, Jr. v The State of Oklahoma

RE-2018-604

Filed: Oct. 10, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Leroy Alexander, Jr. appealed his conviction for Rape in the Second Degree. His conviction and sentence were for fifteen years, with the sentence mostly suspended except for the first year. Judge George W. Butner revoked the remainder of his suspended sentence. Judge Hudson dissented.

Decision

The order of the District Court of Seminole County revoking the remainder of Appellant's fifteen year suspended sentence in Case No. CF-2015-375 is AFFIRMED.

Issues

• was there a lack of authority to revoke a term greater than Appellant's suspended sentence?
• did the full revocation of Appellant's suspended sentence constitute excessive punishment based on the facts and circumstances of the case?

Findings

• The court did not err regarding the revocation of the suspended sentence as the oral pronouncement controlled over the written order.
• The revocation of Appellant's entire suspended sentence was not excessive, and the trial court did not abuse its discretion in its ruling.

RE-2018-604

Oct. 10, 2019

Leroy Alexander, Jr.

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Appellant, Leroy Alexander, Jr., was sentenced to a term of fifteen years, with the sentence suspended except as to the first one year of time served for the crime of Rape in the Second Degree. Appellant appeals from the revocation of the remainder of his fifteen year suspended sentence by the Honorable George W. Butner, Seminole County District Judge.

On April 5, 2018, the State filed a motion to revoke Appellant’s suspended sentence alleging he violated probation by failing to attend sex offender treatment and failing to complete polygraphs every six months. On June 1, 2018, the State filed an amended motion to revoke Appellant’s suspended sentence alleging he also violated probation by working as a ticket taker for a children’s carnival ride at an Okmulgee festival. After hearing the evidence and arguments, Judge Butner found that Appellant had violated his rules and conditions of probation. Judge Butner found Appellant made no attempt to rehabilitate and comply with the rules and conditions of probation. Judge Butner found it was lack of effort and not economic problems that caused Appellant’s probation violations. Judge Butner revoked the remainder of Appellant’s fifteen year suspended sentence.

At the revocation hearing, the State’s first witness, Appellant’s probation officer Larry Thomas, testified Appellant had attended twenty-four or twenty-five sex offender treatment sessions but was terminated because he had stopped attending sessions. Thomas also testified Appellant never took a polygraph examination as required. Thomas arranged for Appellant to attend another sex offender treatment program that accepted him without payment until he could pay. Appellant went to one class and never returned. Thomas testified Appellant’s reason for not taking the polygraph exams was lack of funds. Thomas said he gave Appellant opportunities and encouraged him to seek other employment in order to meet probation requirements. Thomas said Appellant never took advantage of the opportunities and encouragement until reporting, on the day he was arrested on the application to revoke, that he had a new four-day-a-week job.

The State’s second witness was Ralph Stone, a probation and parole officer. Stone testified that he was walking through the Okmulgee festival and recognized Appellant, who was working the super slide, a children’s amusement ride. Appellant originally told Stone his name was Bowlegs. Stone mentioned some jobs that were available for Appellant and told him to come by the office. Appellant visited Stone’s office a few days later and disclosed his real name. At that time Stone learned Appellant was a registered sex offender and reported him for potentially violating probation by working a children’s amusement ride.

After Stone’s testimony, the State introduced two exhibits containing information about Appellant’s previous contacts with law enforcement and his convictions.

In his own defense, Appellant testified he had been kicked out of two different sex offender treatment programs and had not taken any polygraph exams. Appellant was working one night a week making about $400.00 per month and couldn’t afford the costs or payments. The transmission had gone out of Appellant’s car, leaving him with no means of transportation. Also, Appellant said he could not find or keep jobs because of his status as a sex offender. Appellant testified he had recently gotten a job through Express Employment Professionals, and was working four days a week when he was arrested on the application to revoke. After Appellant’s testimony, the parties stipulated that if called Appellant’s brother would testify that he and his siblings would be willing to loan Appellant money and provide transportation so he could become compliant with his probation.

Appellant appeals asserting two propositions of error:

PROPOSITION I: THE TRIAL COURT LACKED AUTHORITY TO REVOKE A TERM GREATER THAN APPELLANT’S SUSPENDED SENTENCE.

PROPOSITION II: FULL REVOCATION WAS EXCESSIVE BASED ON THE FACTS AND CIRCUMSTANCES OF THIS CASE.

ANALYSIS

In Proposition I, Appellant correctly notes that only fourteen years of his sentence was suspended, because he was given credit for one year of time served. Appellant complains because the Judgment and Sentence on Motion to Revoke Suspended Sentence, signed and filed on June 18, 2018, reflects that the District Court incorrectly “[r]evokes all of 15 years of previous suspended amount.” However, no relief is required on this proposition for several reasons. First, unambiguous oral pronouncements of sentences control over written conflicting orders. See LeMay U. Rahhal, 1996 OK CR 21 II 18-24, 917 P.2d 18, 22-23. At the revocation hearing, Judge Butner orally pronounced that he was “revok[ing] the remainder of the fifteen years” of Appellant’s suspended sentence. In addition, the written order signed by Judge Butner agrees with the oral pronouncement by stating the balance of the fifteen years remaining on Appellant’s suspended sentence is revoked. Also, the District Court issued an amendment stating that the balance of Appellant’s suspended sentence was revoked, thus correcting the error in the original Judgment and Sentence.

In Proposition II, Appellant does not dispute that he committed the alleged violations of probation. He argues that his violations each derived from his indigence, lack of transportation, and inability to find gainful employment; and thus the District Court erred in revoking the balance of his suspended sentence in full. Appellant also claims the District Court neither made findings of fact regarding Appellant’s ability to pay nor explained why alternative forms of punishment would not be inadequate. The decision of a trial court to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Jones U. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. Judge Butner specifically found that Appellant’s probation violations were due to his lack of effort and not due to his economic problems. There is sufficient evidence in the record to support Judge Butner’s findings. Hogan U. State, 2006 OK CR 19, 9 21, 139 P.3d 907, 919 (all sufficiency of the evidence claims are reviewed under the rational trier of fact standard). Appellant has not established that Judge Butner erred or abused his discretion in revoking the remaining balance of Appellant’s suspended sentence. Jones, supra.

DECISION

The order of the District Court of Seminole County revoking the remainder of Appellant’s fifteen year suspended sentence in Case No. CF-2015-375 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.

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Footnotes:

1. Okla. Stat. tit. 22 § 982a
2. LeMay U. Rahhal, 1996 OK CR 21
3. Jones U. State, 1988 OK CR 20
4. Hogan U. State, 2006 OK CR 19

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:

• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565.
• Hogan v. State, 2006 OK CR 19, 9 21, 139 P.3d 907, 919.
• LeMay U. Rahhal, 1996 OK CR 21 II 18-24, 917 P.2d 18, 22-23.