Vernon Shawn Miller, Jr. v The State Of Oklahoma

RE-2021-1290

Filed: Mar. 23, 2023

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Vernon Shawn Miller, Jr. appealed his conviction for violating the terms of his suspended sentences. The conviction and sentence were upheld by the court. Judge John D. Hadden Hudson affirmed the revocation of Miller's suspensions, but found that requiring him to have post-imprisonment supervision was a mistake. Judge Rowland and other judges agreed with this opinion.

Decision

The order revoking Appellant's suspended sentences in the District Court of Okfuskee County Case No. CF-2016-125 is AFFIRMED. The portion of the order imposing post-imprisonment supervision is VACATED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2023), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there an abuse of discretion in revoking the Appellant's suspended sentences?
• Did the trial court exceed the unserved balance of Appellant's suspended sentences during the revocation?
• Was the imposition of post-imprisonment supervision error due to not being imposed at the time of sentencing?
• Was the revocation based on facts presented at the revocation hearing rather than evidence from a jury trial?
• Did Appellant receive ineffective assistance of counsel during the revocation proceedings?

Findings

• Proposition I is denied.
• Propositions II, III, and IV are moot.
• Proposition V has merit regarding the imposition of post-imprisonment supervision.
• Proposition VI is denied.
• Proposition VII is without merit.
• The order revoking Appellant's suspended sentences is AFFIRMED.
• The portion of the order imposing post-imprisonment supervision is VACATED.

RE-2021-1290

Mar. 23, 2023

Vernon Shawn Miller, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN HUDSON, VICE PRESIDING JUDGE:

Appellant, Vernon Shawn Miller, Jr., appeals from the revocation of his suspended sentences in Okfuskee County District Court Case No. CF-2016-125. On July 26, 2017, Appellant entered a negotiated plea of guilty to Kidnapping (21 O.S.Supp.2012, § 741) (Count 1); Domestic Assault and Battery by Strangulation (21 O.S.Supp.2014, § 644(J))(Count 4); Possession of Firearm after Felony Conviction (21 O.S.Supp.2014, § 1283(A)(Count 5); Possession of Controlled Dangerous Substance (63 O.S.Supp.2012, § 2-402)(Count 6); and Possession of a Firearm During the Commission of a Felony (21 O.S.Supp.2012, § 1287)(Count 7). He ¹ Counts 2 and 3 were dismissed pursuant to the agreement. was sentenced to concurrent terms of ten years imprisonment on Counts 1, 5, 6, and 7; and three years imprisonment on Count 4. After Appellant completed drug offender workcamp, he filed a petition for writ of mandamus seeking his concurrent terms of imprisonment be suspended. On November 14, 2018, Appellant’s sentence was suspended in compliance with this Court’s order granting relief. On August 11, 2021, the State filed a Motion to Revoke Suspended Sentence for violating his probation as alleged in an attached Violation Report. Following a revocation hearing, the Honorable Lawrence W. Parish, District Judge, revoked Appellant’s suspended sentences in full. Appellant appeals, raising seven propositions of error.

ANALYSIS

A suspended sentence is a matter of grace. Demry v. State, 1999 OK CR 31, ¹², 986 P.2d 1145, 1147. The decision to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, ¹¹ 8, 749 P.2d 563, ² The plea form reflects, 10 years DOC w/1 year review Balance suspended upon successful completion of DOWC. ² 565. An abuse of discretion is a clearly erroneous conclusion and judgment, one clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¹³⁵, 274 P.3d 161, 170. At the conclusion of the revocation hearing, the trial court found that Appellant had violated his probation by failing to timely complete a Batterer’s Assessment and being arrested for a new crime. 22 O.S.Supp.2019, § 991b(C)(1). Appellant’s suspended sentences were revoked in full. In Proposition I, Appellant argues his revocation exceeded the unserved balance of his suspended sentences. Prior to revocation, all but time served in DOC of Appellant’s concurrent sentences was suspended. Judge Parish pronounced, The court specifically revokes eight years and eight and one half months of his suspended sentence, notwithstanding what DOC may calculate. It is clear Judge Parish intended to revoke Appellant’s unserved suspended sentence in full, whatever that term would be. Appellant had no objection to the trial court’s pronouncement and has offered no evidence that he will serve more time than the trial court ordered. Proposition I is denied. ³ The revocation of the unserved balance in Count 1 is longer than the unserved balance in Counts 4 and 6. Accordingly, the challenges to these Counts raised in Propositions II, III and IV are moot. See State v. Pyle, 1937 OK CR 150, 71 P.2d 997, 999 (when an event occurs which makes a pending appeal unnecessary or renders the judgment ineffectual, the appeal should be dismissed). In Proposition V, Appellant argues, and the State concedes, the impositions of post-imprisonment supervision was error because it was not imposed at the time of sentencing. The consequence of judicial revocation is to execute a penalty previously imposed in the judgment and sentence. Marutzky v. State, 1973 OK CR 398, 514 P.2d 430, 431. This Proposition has merit. In Proposition VI, Appellant argues his revocation was not based on facts presented at the revocation hearing, but at a jury trial. This claim is not supported by the record because Judge Parish only commented that the facts he heard while presiding over the trial added to his ruling after summarizing the evidence that was presented at the revocation hearing. Proposition VI is denied. In Proposition VII, Appellant argues he received ineffective assistance of counsel during the revocation proceedings. To succeed ⁴ on this claim, Appellant must first show that counsel’s performance was deficient, and then he must show the deficient performance prejudiced the defense. Bland v. State, 2000 OK CR 11, ¹¹², 4 P.3d 702, 730-31 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Aside from the imposition of post-imprisonment supervision, which the State concedes, Appellant fails to show prejudice. Where a defendant fails to show prejudice, we will dispose of a claim of ineffective assistance on that ground. Tucker v. State, 2016 OK CR 29, ¹², 395 P.3d 1, 6. Proposition VII is without merit.

DECISION

The order revoking Appellant’s suspended sentences in the District Court of Okfuskee County Case No. CF-2016-125 is AFFIRMED. The portion of the order imposing post-imprisonment supervision is VACATED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2023), the MANDATE is ORDERED issued upon delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKFUSKEE COUNTY, THE HON. LAWRENCE W. PARISH, DISTRICT JUDGE

APPEARANCES AT REVOCATION

CURT ALLEN
ATTORNEY AT LAW
PO BOX 998
OKMULGEE, OK 74447
COUNSEL FOR DEFENDANT

APPEARANCES ON APPEAL

KIMBERLY D. HEINZE
INDIGENT DEFENSE SYSTEM
PO BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT

ALBERT KELLY, JR.
ASST. DISTRICT ATTORNEY
PO BOX 225
OKEMAH, OK 74859
COUNSEL FOR STATE

JOHN M. O’CONNOR
ATTORNEY GENERAL
JOSHUA L. LOCKETT
ASST. ATTORNEY GENERAL
313 N.E. 21ST ST.
OKLAHOMA CITY, OK 73105
COUNSEL FOR APPELLEE

OPINION BY: HUDSON, V.P.J.
ROWLAND, P.J.: CONCUR
LUMPKIN, J.: CONCUR
LEWIS, J.: CONCUR
MUSSEMAN, J.: CONCUR

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Footnotes:

1. 21 O.S.Supp.2012, § 741
2. 21 O.S.Supp.2014, § 644(J)
3. 21 O.S.Supp.2014, § 1283(A)
4. 63 O.S.Supp.2012, § 2-402
5. 21 O.S.Supp.2012, § 1287
6. 22 O.S.Supp.2019, § 991b(C)(1)
7. 21 O.S.Supp.2014, § 991b(C)(1)
8. 21 O.S.Supp.2012, § 1283(A)
9. 21 O.S.Supp.2012, § 1287
10. 21 O.S.Supp.2012, § 741

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 741 (2012) - Kidnapping
• Okla. Stat. tit. 21 § 644 (2014) - Domestic Assault and Battery by Strangulation
• Okla. Stat. tit. 21 § 1283 (2014) - Possession of Firearm after Felony Conviction
• Okla. Stat. tit. 63 § 2-402 (2012) - Possession of Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 1287 (2012) - Possession of a Firearm During the Commission of a Felony
• Okla. Stat. tit. 22 § 991b (2019) - Revocation of Suspended Sentences
• Okla. Stat. tit. 21 § 701.8 (2011) - Definitions for sentences
• Okla. Stat. tit. 22 § 3.15 (2023) - Mandate issuance

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:

• Demry v. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147.
• Jones v. State, 1988 OK CR 20, II 8, 749 P.2d 563, 565.
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.
• State v. Pyle, 1937 OK CR 150, 71 P.2d 997, 999.
• Marutzky v. State, 1973 OK CR 398, 514 P.2d 430, 431.
• Bland v. State, 2000 OK CR 11, I 112, 4 P.3d 702, 730-31.
• Tucker v. State, 2016 OK CR 29, 12, 395 P.3d 1, 6.