Grimes v. State

• Decision Date: 04 May 2011
• Docket Number: No. RE–2009–904.,RE–2009–904.
• Citation: 251 P.3d 749,2011 OK CR 16
• Parties: Nytino E. GRIMES, Appellant,v.STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

251 P.3d 749

2011 OK CR 16

Nytino E. GRIMES, Appellant,

v.STATE of Oklahoma, Appellee.

No. RE–2009–904.

Court of Criminal Appeals of Oklahoma.

May 4, 2011.

¶ 0 An Appeal from the District Court of Garfield County; the Honorable Dennis W. Hladik, District Judge.Brian N. Lovell, Attorney at Law, Enid, OK, for appellant at trial.Irene K. Asai, Assistant District Attorney, Garfield County Courthouse, Enid, OK, for the State at trial.Terry J. Hull, Appellate Defense Counsel, Norman, OK, for appellant on appeal.W.A. Drew Edmondson, Attorney General of Oklahoma, Donald D. Self, Assistant Attorney General, Oklahoma City, OK, for the appellee on appeal.

OPINION

C. JOHNSON, Judge.

¶ 1 On December 17, 2007, Appellant Grimes, represented by counsel, entered a guilty plea to a charge of Possession of a Controlled Substance (Marijuana) Within 2,000 Feet of a Park With Intent to Distribute, as charged in Garfield County Case No. CF–2007–623. Pursuant to a plea agreement, sentencing was delayed until June 19, 2008, to allow Grimes time to complete the Regimented Inmate Discipline (RID) program. On December 28, 2007, the Oklahoma Department of Corrections (DOC) advised the District Court that Grimes was ineligible for the RID program, and he was allowed to withdraw his guilty plea. On June 9, 2008, Grimes again entered a guilty plea to the charged offense. That same date, the Honorable Dennis W. Hladik, District Judge, sentenced Grimes to five (5) years imprisonment, with all but the first year suspended. Grimes was also given credit for time served.¹

¶ 2 On June 24, 2009, the State filed an Application to Revoke Suspended Sentence alleging Grimes committed the additional offense of Domestic Abuse—Assault and Battery as charged in Garfield County Case No. CM–2009–535. On July 1, 2009, the State filed an Amended Application to Revoke, alleging Grimes violated his probation by being charged with Driving Under Suspension in Garfield County Case No. CM–2009–568.

¶ 3 On July 15, 2009, Grimes, appearing pro se at the arraignment on the amended revocation application, entered a plea of not guilty and requested court-appointed counsel. Judge Hladik advised Grimes that he had a right to a hearing on the revocation application within 20 days, that he was granting Grimes' request for court-appointed counsel, and informed Grimes of the name of the attorney being appointed. Grimes then stated that he wanted to discuss with appointed counsel his option to waive the 20–day hearing rule applicable in revocation proceedings.² A bond hearing was set for August 7, 2009, but no hearing was scheduled to determine the merits of the revocation application at that time.

¶ 4 On July 31, 2009, the State filed a Second Amended Application to Revoke, alleging Grimes violated various rules of his probation. On August 13, 2009, Grimes appeared with counsel at the bond hearing.³ On September 28, 2009, at the conclusion of the revocation hearing, Judge Hladik revoked the remaining four (4) years of Grime's suspended sentence, and gave him credit for time served. Grimes was also ordered to pay incarceration costs of $1,926.42. From this final order revoking his suspended sentence in full, Grimes appeals and raises the following issues:

1. The District Court was without jurisdiction to revoke Grimes' suspended sentence because the revocation hearing was not conducted within the statutory 20–day time period and Grimes did not waive that right;

2. The trial court abused its discretion by extending Grimes' sentence when it revoked a period of time which exceeded his suspended sentence;

3. The trial court abused its discretion by assessing additional costs of incarceration upon the revocation of Grimes' suspended sentence;

4. The Court Clerk was not authorized to tax multiple Oklahoma Court Information System (OCIS) fees or a court reporter fee against Grimes, and Grimes should be relieved of these fees; and

5. There was neither sufficient evidence nor a finding that Grimes committed the offense of Domestic Abuse Assault and Battery in Garfield County Case No. CM–2009–535, therefore this Court should direct that a nunc pro tunc order of revocation be entered removing the errant language that he committed this offense.

The order revoking Grimes' suspended sentence in full is AFFIRMED.

¶ 5 On July 15, 2009, Grimes appeared pro se at his arraignment, and entered a not guilty plea to the State's amended application to revoke. The District Court appointed counsel and advised Grimes of his right to have the revocation hearing conducted within twenty (20) days. Judge Hladik told Grimes that he could discuss the matter with counsel before he made that decision, and Grimes opted to do so. The court then set a bond appearance for August 7, 2009, twenty-two (22) days after the arraignment.

¶ 6 A Second Amended Application to Revoke was filed on July 31, 2009, containing allegations of new probation violations. On August 13, 2009, Appellant appeared in court, with counsel, and waived his right to jury trial in the two new cases which served as the basis for the original and first Amended Application to Revoke. The court set those two matters, and the revocation hearing, for September 11, 2009. Counsel was present at the August 13th hearing, and while Grimes' voiced his preference for an earlier hearing date, counsel advised the court that his client approved of the chosen date. There was no objection to the court's jurisdiction at the August 13, 2009, hearing and Grimes did not object that the 20 day rule had been violated, nor claim that the court had lost jurisdiction to hear his case.

¶ 7 The district court loses jurisdiction over a petition for revocation of a suspended sentence where the hearing is not held within twenty (20) days of the defendant's entry of a not guilty plea to the revocation petition, absent a valid waiver of a timely hearing. See Byrd v. Caswell, 2001 OK CR 29, ¶ 5, 34 P.3d 647, 648; Baker v. State, 1996 OK CR 49, ¶¶ 12–14, 927 P.2d 577, 581; McCauley v. State, 1991 OK CR 69, ¶ 4, 814 P.2d 157, 158, 22 O.S.Rev.Supp.2005, § 991b(A). However, 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. See Yates v. State, OK CR 179, ¶¶ 2–5, 761 P.2d 878, 879.

¶ 8 Grimes cannot opt to postpone his decision on the 20–day waiver pending consultation with counsel, wait until the 20–day time period expires, and then claim it was error for the court to conduct his revocation hearing more than twenty (20) days after entry of his plea. The time limitation was tolled upon Grimes' request to consult with counsel, and it was subsequently waived at the August 13, 2009, hearing when he agreed, however reluctantly, to the hearing date set by the court.

¶ 9 As for Grimes' second proposition, we find no error in the District Court's order revoking the remaining four (4) years of Grimes' suspended sentence. Citing this Court's decision in Harris v. State, 1989 OK CR 10, 772 P.2d 1329, Grimes argues that his credit for time served prior to sentencing somehow shortened the term of his suspended sentence to three years and 102 days. Grimes is correct that the ruling in Harris espouses this interpretation of the statute governing suspended sentences. In Hemphill v. State, 1998 OK CR 7, 954 P.2d 148, we made the following ruling regarding the time period to be used in administering a suspended sentence:

Just as a defendant's suspended sentence may not be lengthened by intervening revocation orders occurring within the original term of sentence, a suspended sentence may not be shortened by intervening revocations. 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. The original term of sentence is that which is set by the district court at the time the order suspending was first entered.

Id. ¶ 9, 954 P.2d at 151 (emphasis added). At the time this Court issued its decision in Hemphill, we also found that because the District Court had given Harris credit for time served, Harris presented different circumstances, distinguishing it from Hemphill, and the Harris decision remained intact. Id. at ¶ 12, 954 P.2d 148.

¶ 10 As we stated in Hemphill,

Our state's sentencing statutes contemplate that when a defendant is sentenced he receives only one sentence, not multiple ones. The suspension order is not a separate sentence but is instead a condition placed upon the execution of the sentence.

Id. ¶ 6, 954 P.2d at 150 (emphasis added). Grimes' suspended sentence, execution of which was partly suspended, began on June 9, 2008, and expires at midnight, June 8, 2013. During that five year span, he is obligated to abide by the terms and conditions of his probation or face revocation of the unexecuted portion of his sentence. The unexecuted portion of the sentence consists of any time during that five calendar year span not spent in custody.

¶ 11 Grimes' receipt of credit for time served does not shorten the length of his sentence and its corresponding probationary period. Rather, credit for time served goes only toward discharging that portion of the sentence ordered executed. It does not shorten any unexecuted portion of the sentence. Grimes cannot “bank” time served to shorten the calendar year term of his probation, i.e. the period of time during which he is obligated to remain on good behavior. Consequently, the District Court did not “extend” Grimes' sentence when it revoked the remaining four years of his original suspended sentence.

¶ 12 To the extent that this Court's decision in Harris is inconsistent with this opinion, it is expressly overruled. We re-affirm the finding in Hemphill that the original calendar year term of a sentence, the execution of...