Pickens v. State

OPINION

LANE, Vice-Presiding Judge:

On April 16, 1986, Appellant William Antoine Pickens pled guilty to the crime of *597Actual Physical Control of a Motor Vehicle While Intoxicated, After Former Conviction of a Felony in Case No. CRF-86-392 in the District Court of Cleveland County. His sentence of two (2) years imprisonment was suspended. On September 12, 1986, Appellant pled guilty to the crime of Operating a Motor Vehicle Under the Influence of Intoxicating Liquor, After Former Conviction in Case No. CRF-86-4767 in the District Court of Oklahoma County. The State filed an Application to Revoke Suspended Sentence in Case No. CRF-86-392 on October 20, 1986. The only ground for revocation stated in the application was Appellant’s guilty plea in Case No. 86-4767.

Appellant asserts his right to due process was denied by the trial court which did not conduct a preliminary hearing prior to the revocation hearing. Appellant concedes Oklahoma law does not support his position. In Wilson v. State, 621 P.2d 1173 (Okl.Cr.1980) this Court held that a preliminary hearing on a revocation is not mandated when the probationer is already in custody for reasons unrelated to the revocation hearing. This Court has thus explicitly recognized that it is a probationer’s liberty interest which requires the due process protection of the preliminary hearing. It is also well established that a probationer may waive the preliminary hearing by failing to request it. See e.g. Woods v. State, 526 P.2d 944 (Okl.Cr.1974); Powell v. State, 745 P.2d 1180 (Okl.Cr.1987). Appellant herein failed to request a preliminary hearing and thus waived it.

Appellant argues however, that Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) mandates a preliminary hearing, notwithstanding the fact he was already in custody on a matter unrelated to the revocation hearing. Appellant’s argument that this Court should overrule Wilson is unavailing.

In 1974, this Court imposed the requirement of a preliminary hearing prior to the revocation hearing. Woods v. State, 526 P.2d 944 (Okl.Cr.1974); 22 O.S.1971, § 991b. We held the preliminary hearing was mandated by the then recent United States Supreme Court decisions in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon.

Upon reconsideration of this matter, and our cases to the contrary notwithstanding,1 we herein hold a preliminary hearing is not required in addition to the revocation hearing set forth in 22 O.S.1981, § 991b.

The genesis of the preliminary hearing in the context of an administrative hearing for the revocation of parole appears in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The basis for the preliminary hearing was a finding by the Supreme Court that:

There is typically a substantial time lag between the arrest and the eventual determination by the pardon and parole board whether parole should be revoked. Additionally, it may be that the parolee is arrested at a place distant from the state institution to which he may be returned before the final decision is made concerning revocation. Given these factors, due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.

408 U.S. at 485, 92 S.Ct. at 2602.

While expressly stating it cannot write a code of procedure, the Morrissey court outlined the minimum requirements of due process as follows:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confronta*598tion); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

408 U.S. at 489, 92 S.Ct. at 2604.

The Gagnon Court relied heavily on the Morrissey decision to conclude the due process rights of a probationer are the same as those of a parolee. Gagnon, 411 U.S. at 782, 93 S.Ct. at 1759-1760.

Subsequent to our decision in Woods, the Oklahoma Legislature amended 911b requiring the revocation hearing to be held within ten (10) days after a probationer is arrested on a revocation petition. 22 O.S. 1976 Supp., § 991b. In 1978, the legislature again amended § 991b, modifying the ten (10) day requirement to twenty (20) days. 22 O.S.1978 Supp., § 991b.

The statutory mandate of 991b that a revocation hearing must be held within twenty (20) days of arrest on the revocation application gives a probationer greater protection of his liberty interest than Morris-sey and Gagnon provide. Our holding today that a preliminary hearing is not required on a revocation application does not dilute the due process requirements mandated by Morrissey, Gagnon and this Court except as they pertain to a preliminary hearing.

Relying on Stoner v. State, 566 P.2d 142 (Okl.Cr.1977), Appellant next argues his subsequent judgment and sentence can not be used as a basis to revoke his suspended sentence because the State failed to offer strict proof of finality of that judgment and sentence. The State counters with Scott v. State, 734 P.2d 326 (Okl.Cr.1987) to argue that when in fact the judgment has become final, strict proof of finality need not be offered. The State asserts in its brief the judgment was in fact final; however, this evidence was not before the trial court.2

It is well established that when the State chooses to prove a judgment and sentence rather than the underlying crime as a predicate for revocation of a suspended sentence, the judgment is a valid basis for revocation only if it is final. Kern v. State, 521 P.2d 412 (Okl.Cr.1974); Stoner v. State, 566 P.2d 142 (Okl.Cr.1977); Linscome v. State, 584 P.2d 1349 (Okl.Cr.1978); McGee v. State, 761 P.2d 863 (Okl.Cr.1988). A judgment and sentence becomes final when the defendant does not appeal within the time prescribed for direct appeal or, if the defendant perfects a direct appeal, final disposition is made and entered by the appellate court. Kern, 521 P.2d at 415. Notwithstanding our decision to the contrary in Scott v. State, 734 P.2d 326 (Okl.Cr.1987), we believe the reasoning of Stoner and its progeny represents the better approach. We therefore hold that when the State introduces a certified or authenticated copy of the judgment and sentence of the predicate conviction as a basis for revocation of a suspended sentence, it must also offer strict proof of the finality of that predicate judgment and sentence. See e.g., Sams v. State, 758 P.2d 834 (Okl.Cr.1988); Cheadle v. State, 762 P.2d 995 (Okl.Cr.1988). In this case the State failed to offer strict proof of finality. We therefore reverse and remand to the district court for rehearing.

BRETT, J., concurs. PARKS, P.J., concurs in part/dissents in part. LUMPKIN, J., specially concurring.

. See e.g., Woods v. State, 526 P.2d 944 (Okl.Cr.1974); State ex rel. Oklahoma Department of Corrections v. Means, 529 P.2d 1005 (Okl.Cr.1974); Phillips v. State, 556 P.2d 1054 (Okl.Cr. 1976); Wilson v. State, 621 P.2d 1173 (Okl.Cr.1980); Powell v. State, 745 P.2d 747 (Okl.Cr.1987); Powell v. State, 745 P.2d 1180 (Okl.Cr.1987).

. Appellant did not withdraw his guilty plea within ten (10) days of pronouncement of judgment and sentence, Rule 4.1, Rules of the Court of Criminal Appeals, 22 O.S.1981, ch. 18, App., and file a Petition for Writ of Certiorari with this Court within ninety (90) days from the date judgment and sentence was pronounced. Rule 4.2, rules of the Court of Criminal Appeals, 22 O.S.1981, ch. 18 App.