APPEAL FROM THE DISTRICT COURT OF LOGAN COUNTY THE HONORABLE
LOUIS A. DUEL, ASSOCIATE DISTRICT JUDGE
FITZ COUNSEL FOR DEFENDANT
KIRKPATRICK ASST. DISTRICT ATTORNEY COUNSEL FOR STATE
LISBETH L. MCCARTY COUNSEL FOR APPELLANT
HUNTER OKLA. ATTORNEY GENERAL THEODORE M. PEEPER ASST.
ATTORNEY GENERAL COUNSEL FOR APPELLEE
VICE PRESIDING JUDGE
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.
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.
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.
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.
After hearing the evidence and arguments, Judge Duel revoked
Appellant's five-year suspended sentences in full.
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
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
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."
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 ...