Wrone v. Page, A--16283

• Decision Date: 17 February 1971
• Docket Number: No. A--16283,A--16283
• Citation: 481 P.2d 479
• Parties: Anthony Earl WRONE, Petitioner, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 479

481 P.2d 479

Anthony Earl WRONE, Petitioner, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary, Respondent.

No. A--16283.

Court of Criminal Appeals of Oklahoma.

Feb. 17, 1971.

Syllabus by the Court

1. Statute in effect at time suspended sentence is revoked will be applied when revocation is attacked.

Original proceedings in which the petitioner seeks a writ of habeas corpus. Writ denied.

Warren L. Griffin, Oklahoma City, for petitioner.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., for respondents.

BRETT, Judge.

Petitioner herein, Anthony Earl Wrone, by and through his attorney, Warren L. Griffin, on September 21, 1970 filed his Petition for Writ of Habeas Corpus; and with permission of this Court, December 9, 1970, filed an Amended Petition seeking his release from the Oklahoma State Penitentiary at McAlester, Oklahoma.

The history of petitioner's complaint is stated substantially as follows:

1. On January 10, 1961, petitioner was sentenced in the District Court of Washington County, Oklahoma, to serve a term of five years in the State Penitentiary for the crime of Larceny of Narcotic Drugs. The sentence was suspended 'during the good behavior of the defendant'.

2. While petitioner was free on the suspended sentence he was indicted by a Federal Grand Jury in Oklahoma City, Oklahoma, on two charges, one of which was for violation of the narcotics provisions of the United States Code. He was subsequently found guilty and sentenced to ten years imprisonment, under Federal Statutes.

3. After petitioner was indicted on the Federal charge, but prior to his conviction in the Federal Court, the County Attorney of Washington County filed an Application to revoke petitioner's suspended sentence, alleging (a) that Anthony Earl Wrone, petitioner herein, had been on April 19, 1964, indicted by a Federal Grand Jury in Oklahoma County on three counts of Federal Violations; (b) that the said Anthony Earl Wrone had been indicted by a Federal Grand Jury in Oklahoma City, Oklahoma, on three counts of Federal narcotics violations having to do with the illegal sale of narcotics; and (c) that during the month of April, 1964, the said Anthony Earl Wrone was observed by Federal Agents as associating with known criminals and persons using narcotics. The Application was unverified.

4. On the 25th day of June, 1964, prior to petitioner's conviction in Federal Court, the Honorable Layton L. Doty, District Judge of Washington County, entered an order revoking petitioner's suspended sentence. The order shows only that the matter came on for hearing upon the Application of the County Attorney without any averment of the presence of, or notice to, petitioner or his counsel. The order states:

'Whereupon, there was presented to the court Information that Anthony Earl Wrone has since said sentence was ordered and suspended during good behavior wilfully violated the terms of his suspended sentence.'

Thereafter, the suspended sentence of petitioner was revoked, and petitioner was ordered to serve the full term of his five year sentence.

5. After petitioner's conviction in Federal Court in Oklahoma City, he was removed to the United States Penitentiary in Terre Haute, Indiana.

6. A 'hold' was placed in Missouri on petitioner by virtue of the order of revocation of suspended sentence.

7. Petitioner was released from the Federal Penitentiary August 17, 1970, and

8. Following extradition, petitioner was returned to Oklahoma, where he is now confined in the State Penitentiary at McAlester, Oklahoma.

At the hearing on the petition for writ of habeas corpus, Mr. Warren L. Griffin appeared as counsel in behalf of petitioner, and Mr. Fred Anderson, Assistant Attorney General, appeared in behalf of the State. It was stipulated that the factual statements contained in the petition and amendment, as substantially recited above, are correct.

In his brief, petitioner seems to rely heavily upon the provisions of 22 O.S.Supp. §§ 991a and 991b, and 22 O.S. § 992. During oral arguments both parties agreed that on the date of petitioner's revocation, June 25, 1964, the statutory provisions effective were Sections 991 and 992 of Title 22, Oklahoma Statutes.

Petitioner asserts three propositions in his brief. (1) That the District Court of Washington County lacked jurisdiction to revoke the suspended sentence and therefore the order of revocation was a nullity inasmuch as it was based upon an indictment rather than a conviction, subsequent to the entry of the suspended sentence; (2) that the order of revocation was null and void because the Application therefor was unverified and there was no affidavit showing the verity of the third ground alleged in the Application. Under this proposition a complaint is registered that the order of revocation is based upon 'information' that subsequent to petitioner's suspended sentence, ordered 'during good behavior', petitioner wilfully violated the terms of his suspended sentence; and (3) that, as petitioner's suspended sentence had expired July 10, 1966, the order of revocation thereof was null and void at the time entered, and, therefore, petitioner should be discharged from custody forthwith. For this proposition petitioner cites the cases of Ex Parte Arnett, 93 Okl.Cr. 116, 225 P.2d 381 (1953), and Flynt v. State, 91 Okl.Cr. 77, 216 P.2d 344 (1950), which stand, generally, for the rule that after expiration of the term of the sentence ordered in the judgment, cause is no longer pending and, thus, the trial court has no power to revoke an order of suspension of sentence.

It is to be conceded that after expiration of the...