SEARS v. STATE

SEARS v. STATE
2019 OK CR 8
Case Number: RE-2017-1128
Decided: 05/16/2019
ELIZABETH KAY SEARS, Appellant v. THE STATE OF OKLAHOMA, Appellee.

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE:

¶1 Appellant appeals from the revocation of her suspended sentence in Logan County District Court Case No. CF-2013-295, by the Honorable Louis A. Duel, Associate District Judge.

¶2 On January 14, 2014, Appellant entered a plea of guilty to two counts of Child Neglect, in violation of 21 O.S.2011, § 843.5(C) (Counts 1-2), and one count of Harboring a Fugitive, in violation of 21 O.S.2011, § 440 (Count 4). Appellant was convicted and sentenced to eight years imprisonment for each count, with all but the first three years suspended. On October 3, 2014, Judge Duel modified Appellant's sentence to five years imprisonment for each count, with all five years suspended. The sentences were ordered to be served concurrently.

¶3 On December 29, 2016, the State filed a 2nd Amended Motion to Revoke Suspended Sentence alleging Appellant committed several probation violations including the new crimes of Count 1 -- Second Degree Burglary and Count 2 -- Possession of Paraphernalia as alleged in Logan County District Court Case No. CF-2016-404.

¶4 On January 26, 2017, Appellant appeared before the trial court, represented by counsel, and was arraigned on the application to revoke and entered a plea of not guilty. Appellant requested, and was granted, a continuance and was ordered to reappear on February 23, 2017. The hearing on the motion to revoke in this case was heard on October 25, 2017.1 After hearing the evidence and arguments, Judge Duel revoked Appellant's five-year suspended sentences in full.

¶5 Appellant argues in her first proposition this revocation order should be reversed and dismissed. According to Appellant, no valid waiver of the twenty day hearing requirement occurred within twenty days of her plea of not guilty which she alleges is required pursuant to 22 O.S.Supp.2016, § 991b(A). Specifically, she maintains because the record does not explicitly establish she was informed of the 20-day requirement this motion to revoke must be dismissed.

¶6 Appellant requested and was granted a continuance of her revocation hearing date. This Court held in Grimes "a defendant cannot acquiesce in the delay of a hearing and/or participate in the continuance of a hearing and then claim that he is entitled to relief because the court did not abide by the 20-day time limitation." Grimes v. State, 2011 OK CR 16, ¶ 7, 251 P.3d 749, 753 (citing Yates v. State, 1988 OK CR 179, ¶¶ 2-5, 761 P.2d 878, 879). Appellant does not allege her revocation counsel was ineffective. Revocation counsel is presumed to be competent. See Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674 (1984). As a result, we presume Appellant's revocation counsel was aware of the consequences associated with requesting a continuance in this case. See Grimes, 2011 OK CR 16, ¶¶ 7-8, 251 P.3d at 753.

¶7 In her second proposition of error, Appellant seeks an order clarifying the trial court's revocation order in this case. Appellant argues the trial court's grant of credit for time served incorrectly stated the amount of time Appellant has served. While the State acknowledges the trial court may have misspoke regarding the amount of time to be credited for time served, this issue has not been presented to Judge Duel to allow him to correct any error made before asking this Court to intervene. See Grimes v. State, 2011 OK CR 16, ¶ 21, 251 P.3d 749, 755. In Grimes this Court held "[a]bsent a determination by the District Court, this Court will not assume jurisdiction of an extraordinary writ, especially in a revocation appeal where our review is limited to whether or not the District Court abused its discretion in revoking all or part of a defendant's suspended sentence." Id.

¶8 However, we will no longer require an appellant to file an additional pleading in the trial court to have this claim addressed. Finding no obvious clerical error, this matter is REMANDED to the District Court of Logan County with instructions to address Appellant's request for issuance of an order nunc pro tunc as presented in Proposition II of this appeal. To the extent this opinion is inconsistent with the procedure followed by Grimes and similar cases, Grimes and any other case requiring an appellant to file a separate pleading in the trial court to address this issue are modified to reflect this change in procedure.

DECISION

¶9 The revocation of Appellant's suspended sentence in Logan County District Court Case No. CF-2013-295 is AFFIRMED and REMANDED for proceedings consistent with this opinion. 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.

AN APPEAL FROM THE DISTRICT COURT OF LOGAN COUNTY
THE HONORABLE LOUIS A. DUEL, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT REVOCATION

APPEARANCES ON APPEAL

LANE FITZ
4101 N. CLASSEN BLVD., STE.A
OKLAHOMA CITY, OK 73118
COUNSEL FOR DEFENDANT

LISBETH L. MCCARTY
P. O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT

EMILY KIRKPATRICK
ASST. DISTRICT ATTORNEY
301 E. HARRISON
GUTHRIE, OK 73044
COUNSEL FOR STATE

MIKE HUNTER
OKLA. ATTORNEY GENERAL
THEODORE M. PEEPER
ASST. ATTORNEY GENERAL
313 N.W. 21st STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR APPELLEE

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

FOOTNOTES

1 Following Appellant's failure to appear and comply with trial court orders, as well as continuances being granted to both parties, this application to revoke was set for hearing on October 25, 2017.