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RE-2021-1042

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Matthew Bryan Buttery v The State Of Oklahoma

RE-2021-1042

Filed: Jan. 19, 2023

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Matthew Bryan Buttery appealed his conviction for violating the rules of his probation. His conviction and sentence involved a total of ten years in prison for drug-related charges and theft, but he was allowed to not serve the time if he followed the rules. However, he did not report as required and committed a new crime. The court decided to revoke his suspended sentence, meaning he had to serve time in prison because he broke the rules. Buttery argued that the judge made mistakes. He said the judge shouldn’t have denied him credit for the time he already served and that his revocation sentence should not be added on top of another sentence he was already serving in a different county. The court agreed with one of his points, ruling that the sentences should run at the same time (concurrently), but it did not agree with him about the credit for time served. Overall, the decision to revoke his probation was upheld. Judge Lumpkin agreed with the outcome but had some concerns about how the reasoning was discussed in the opinion.

Decision

The Decision of the District Court of McIntosh County revoking Appellant's suspended sentence in Case No. CF-2018-60 is AFFIRMED, but the matter is REMANDED to the District Court for further proceedings consistent with this Opinion. Appellant's motion to supplement record is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2022), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • Was there an abuse of discretion by the trial court in denying credit for time served at the revocation hearing?
  • Did the trial court err in running Appellant's revocation sentence consecutively to his sentence in LeFlore County?
  • Is the revocation order invalid based on the claim that the crime occurred in Indian Country, affecting the State's jurisdiction over the Appellant?

Findings

  • the trial court did not abuse its discretion in refusing to grant Appellant credit for time served at the revocation hearing
  • it was an abuse of discretion for the trial court to run Appellant's revocation sentence consecutive to his sentence in LeFlore County
  • Proposition II is denied as the issue of jurisdiction based on McGirt was not properly raised at the revocation hearing
  • the Decision of the District Court of McIntosh County revoking Appellant's suspended sentence is AFFIRMED
  • the matter is REMANDED to the District Court for further proceedings consistent with this Opinion
  • Appellant's motion to supplement record is DENIED

RE-2021-1042

Jan. 19, 2023

Matthew Bryan Buttery

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MUSSEMAN, JUDGE: Matthew Bryan Buttery appeals the order of the District Court of McIntosh County revoking his suspended sentence in Case No. CF-2018-60. Appellant pled guilty to Distribution of Controlled Dangerous Substances-Including Possession With Intent to Distribute (63 O.S.Supp.2018 § 2-401(A)(1)(Count 1), Petit Larceny (21 O.S.Supp.2018 § 1704(Count 2), Petit Larceny (21 O.S.Supp.2018 § 1704(Count 3), Possession of Controlled Dangerous Substance (63 O.S.Supp.2017 § 2-402)(Count 4) and Unlawful Possession of Drug Paraphernalia (63 O.S.2004 § 2-405) (Count 5). He was sentenced to ten years imprisonment on Count 1, six months imprisonment on Counts 2 and 3, and one year imprisonment on Counts 4 and 5, all suspended and run concurrently with each other. On October 9, 2020, the State filed a motion to revoke suspended sentence alleging Appellant failed to report, failed to pay probation fees, and committed the new crime of Knowingly Receiving/Concealing Stolen Property as alleged in LeFlore County District Court Case No. CF-2020-256.

At the conclusion of a hearing held on September 22, 2021, Appellant’s suspended sentence was revoked in full. In Proposition I, Appellant claims that the trial court abused its discretion by modifying Appellant’s sentence at the revocation hearing by denying credit for time served and running Appellant’s revocation sentence consecutively to LeFlore County District Court Case No. CF-2020-256. A trial court’s decision to revoke a probationer’s suspended sentence is reviewed by this Court for an abuse of discretion. Tilden v. State, 2013 OK CR 10, ¶ 10, 306 P.3d 554, 557; Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d, 563, 565. An abuse of discretion is a clearly erroneous conclusion and judgment against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

The trial court did not abuse its discretion in refusing to grant Appellant credit for time served at the revocation hearing. This did not result in a modification of the terms of Appellant’s sentence. A suspended sentence may not be shortened by intervening revocations. Hemphill v. State, 1998 OK CR 7, ¶ 9, 954 P.2d 148, 151. So long as there remains an unrevoked portion of the suspended sentence, the district court’s power and authority to revoke all or part of it does not end until the expiration of the original term of sentence. See id. The original term of sentence is that which is set by the district court at the time the order suspending was first entered. See id. Receipt of credit for time served does not shorten the length of Appellant’s sentence and its corresponding probationary period. Rather, credit for time served goes only toward discharging that portion of the sentence ordered executed. Grimes v. State, 2011 OK CR 16, ¶ 9, 251 P.3d 749, 753. Appellant cannot bank time served to shorten the calendar year term of his probation, i.e., the period he is obligated to remain on good behavior. See id. The Appellant was given credit for time served as of March 22, 2019, the date he entered his plea. Moving forward, the trial court in finding Appellant violated the terms and conditions of his probation had the discretion to revoke the full ten-year sentence and deny any request for time served. While it is a common practice for the trial judge to give credit for time served, there is no authority mandating such credit or making it an abuse of discretion to fail to give it. Shepard v. State, 1988 OK CR 97, ¶ 21, 756 P.2d 597, 602.

We do find it was an abuse of discretion for the trial court to run Appellant’s revocation sentence consecutive to his sentence in LeFlore County. The consequence of judicial revocation is to execute a penalty previously imposed in the judgment and sentence. Marutzky v. State, 1973 OK CR 398, ¶ 5, 514 P.2d 430, 431. Our state’s sentencing statute contemplates that when a defendant is sentenced, he receives only one sentence, not multiple ones. Grimes, 2011 OK CR 16, ¶ 10, 251 P.3d at 753 (citing Hemphill v. State, 1998 OK CR 7, 954 P.2d 148). The suspension order is not a separate sentence but is instead a condition placed upon the execution of the sentence. See id. Appellant pled guilty in McIntosh County District Court on March 22, 2019, and was sentenced. Appellant pled guilty in LeFlore County District Court on March 23, 2020, and was sentenced. The District Judge in LeFlore County ordered Appellant’s sentence to run concurrent to the previous conviction in McIntosh County. Pursuant to 22 O.S.2001, § 976, the LeFlore County District Court had the authority to order its sentence to be served concurrently with the prior sentence from McIntosh County. Higgins v. State, 2006 OK CR 23, ¶ 10, 137 P.3d 1240, 1242. In ordering a sentence to be served concurrently with an existing sentence, the sentencing judge does nothing to modify the existing sentence. Id., 2006 OK CR 23, ¶ 15, 137 P.3d at 1243. Rather the sentencing judge is only entering an order concerning the sentence imposed. Id. The fact that the imposition of the later sentence might collaterally affect an existing sentence does not render the subsequent sentencing order unlawful. See id. The trial court’s order stating that the Appellant’s sentence will run consecutively to the LeFlore County case is a clearly erroneous conclusion and judgment against the logic and effect of the facts presented. Neloms, 2012 OK CR 7, ¶ 35, 274 P.3d at 170. The matter is REMANDED to the District Court with instructions that Appellant’s revocation sentence will run concurrent to LeFlore County District Court Case No. CF-2020-256.

In Proposition II, Appellant claims the revocation order is invalid because the crime allegedly occurred in Indian Country and the State never had jurisdiction over the Appellant pursuant to McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). This claim is not proper in a revocation appeal. The scope of review in a revocation appeal is limited to the validity of the revocation order, not the validity of the judgment and sentence. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2022). The jurisdiction of the trial court to enter the original judgment and sentence is therefore not properly before this Court. Degraffenreid v. State, 1979 OK CR 88, ¶ 13, 599 P.2d 1107, 1110 (There is one judgment of guilt and one sentence, and they have already been imposed. The question at the revocation hearing is whether that sentence should be executed.). Furthermore, at the revocation hearing, Appellant failed to assert that the trial court lacked jurisdiction based on McGirt. This Court will not assume jurisdiction where the issue has first not been raised in the District Court. Sears v. State, 2019 OK CR 8, ¶ 7, 457 P.3d 1087, 1088. Proposition II is denied.

DECISION The Decision of the District Court of McIntosh County revoking Appellant’s suspended sentence in Case No. CF-2018-60 is AFFIRMED, but the matter is REMANDED to the District Court for further proceedings consistent with this Opinion. Appellant’s motion to supplement record is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2022), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

  1. Okla. Stat. tit. 63 § 2-401(A)(1)
  2. Okla. Stat. tit. 21 § 1704
  3. Okla. Stat. tit. 63 § 2-402
  4. Okla. Stat. tit. 63 § 2-405
  5. Tilden v. State, 2013 OK CR 10, ¶ 10, 306 P.3d 554, 557
  6. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565
  7. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170
  8. Hemphill v. State, 1998 OK CR 7, ¶ 9, 954 P.2d 148, 151
  9. Grimes v. State, 2011 OK CR 16, ¶ 9, 251 P.3d 749, 753
  10. Shepard v. State, 1988 OK CR 97, ¶ 21, 756 P.2d 597, 602
  11. Marutzky v. State, 1973 OK CR 398, ¶ 5, 514 P.2d 430, 431
  12. Higgins v. State, 2006 OK CR 23, ¶ 10, 137 P.3d 1240, 1242
  13. Higgins v. State, 2006 OK CR 23, ¶ 15, 137 P.3d 1240, 1243
  14. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, at 170
  15. Degraffenreid v. State, 1979 OK CR 88, ¶ 13, 599 P.2d 1107, 1110
  16. Sears v. State, 2019 OK CR 8, ¶ 7, 457 P.3d 1087, 1088
  17. Okla. Stat. tit. 22 § 976
  18. Okla. Stat. tit. 22 § 982a

Oklahoma Statutes citations:

  • Okla. Stat. tit. 63 § 2-401 (2018) - Distribution of Controlled Dangerous Substances
  • Okla. Stat. tit. 21 § 1704 (2018) - Petit Larceny
  • Okla. Stat. tit. 63 § 2-402 (2017) - Possession of Controlled Dangerous Substance
  • Okla. Stat. tit. 63 § 2-405 (2004) - Unlawful Possession of Drug Paraphernalia
  • Okla. Stat. tit. 22 § 976 (2001) - Sentencing Concurrently or Consecutively
  • Okla. Stat. tit. 22 § 982a (2018) - Modification of 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:

  • Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557
  • Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
  • Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
  • Hemphill v. State, 1998 OK CR 7, I 9, 954 P.2d 148, 151
  • Grimes v. State, 2011 OK CR 16, I 9, 251 P.3d 749, 753
  • Shepard v. State, 1988 OK CR 97, I 21, 756 P.2d 597, 602
  • Marutzky v. State, 1973 OK CR 398, I 5, 514 P.2d 430, 431
  • Higgins v. State, 2006 OK CR 23, I 10, 137 P.3d 1240, 1242
  • Higgins v. State, 2006 OK CR 23, I 15, 137 P.3d 1240, 1243
  • Degraffenreid v. State, 1979 OK CR 88, I 13, 599 P.2d 1107, 1110
  • Sears v. State, 2019 OK CR 8, I 7, 457 P.3d 1087, 1088

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