Carey James Buxton v The State Of Oklahoma

F-2018-945

Filed: Aug. 8, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Carey James Buxton appealed his conviction for multiple drug-related charges and related offenses. His conviction and sentence were upheld by the court, confirming his removal from the Drug Court program and imposing a punishment as per his plea agreement. Judge Kuehn dissented.

Decision

The order of the District Court of Kay County terminating Appellant from Drug Court and sentencing him in accordance with the plea agreement in Case Nos. CM-2014-358, CF-2014-578 and CF-2017-5 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued forthwith upon the filing of this decision with the Clerk of this Court.

Issues

• Was there an abuse of discretion in the trial court's decision to terminate Appellant from the Drug Court program?
• Did the trial court properly determine that disciplinary sanctions were insufficient before terminating Appellant from Drug Court as required by law?
• Was the automatic termination for cheating drug-screening tests contrary to the laws governing Drug Court?

Findings

• the court did not err in terminating Appellant from the Drug Court program
• the trial court did not abuse its discretion
• the evidence was sufficient to support termination from the Drug Court program
• the automatic termination for cheating drug-screening tests was not contrary to law
• the decision of the District Court of Kay County is affirmed

F-2018-945

Aug. 8, 2019

Carey James Buxton

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

Appellant, Carey James Buxton, has appealed to this Court from orders of the District Court of Kay County, entered by the Honorable David Bandy, Associate District Judge, terminating him from Drug Court and sentencing him in accordance with the Drug Court contract in Case Nos. CM-2014-358, CF-2014-578 and CF-2017-5. Appellant entered pleas of no contest on April 30, 2018. In Case No. CM-2014-358, Appellant entered a nolo contendere plea to Possession of Drug Paraphernalia (63 O.S.2011, § 2-405). In CF-2014-578, pleas were entered to Possession of a Controlled Dangerous Substance (methamphetamine) with the Intent to Distribute (63 O.S.Supp.2012, § 2-401(B)(2)) (Count I) and Possession of Drug Paraphernalia (63 O.S.2011, § 2-405) (Count II). Similar pleas were entered in Case No. CF-2017-5 to Second Degree Burglary (21 O.S.2011, § 1435) (Count I) and Knowingly Concealing Stolen Property (21 O.S.Supp.2016, § 1713) (Count II). Appellant was sentenced to the Drug Court program. According to the terms of the plea agreement, if Appellant successfully completed the program, the charges would be dropped. If he did not successfully complete the program, he would be sentenced to 30 years imprisonment (25 years to do) on each of the felony charges. On each of the misdemeanor paraphernalia charges, Appellant would be sentenced to one year of incarceration.

On August 2, 2018, the State filed applications to remove Appellant from the Drug Court program. On August 31, 2018, a hearing was held on the State’s application. At the conclusion of the hearing, Judge Bandy terminated Appellant from the Drug Court program and sentenced him in conformance with the plea agreement.

On Appeal, Appellant asserts a single proposition of error: THE TRIAL COURT ABUSED ITS DISCRETION IN TERMINATING APPELLANT FROM THE DRUG COURT PROGRAM.

ANALYSIS

The decision to revoke or terminate a Drug Court defendant is within the trial judge’s discretion. Lewis v. State, 2009 OK CR 30, I 10, 220 P.3d 1140, 1143. An abuse of discretion involves a clearly erroneous conclusion. State U. Farthing, 2014 OK CR 4, I 4, 328 P.3d 1208, 1209. The record discloses that no abuse of discretion occurred. Appellant contends the trial court did not first determine that disciplinary sanctions were insufficient to gain compliance before it terminated him from Drug Court as required by 22 O.S.2011, § 471.7(E). Appellant also contends automatic termination for cheating drug-screening tests is contrary to the laws governing Drug Court. These contentions are not supported by the record. Violations of the Drug-Court contract need only be proven by a preponderance of the evidence. Hagar U. State, 1999 OK CR 35, I 11, 990 P.2d 894, 898. Despite serving numerous jail sanctions, Appellant continued to violate the performance contract. Appellant cannot show removal from the program under these circumstances was an abuse of discretion. See Walker v. State, 1989 OK CR 65, I 5, 3 780 P.2d 1181, 1183) (describing an abuse of discretion as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application). Nor did the trial court, as Appellant alleges, remove him from Drug Court automatically for cheating on drug-screening tests. Rather, the record shows the trial court understood its responsibility to look at everything before making its decision. Again, these circumstances do not demonstrate an abuse of discretion. See Lewis, 2009 OK CR 30, I 12, 220 P.3d at 1144 (upholding termination involving a serially untrustworthy defendant); Wallace U. State, 1977 OK CR 154, I 8, 562 P.2d 1175, 1177 (violation of even one condition of probation is sufficient to warrant termination). This proposition of error is denied.

DECISION

The order of the District Court of Kay County terminating Appellant from Drug Court and sentencing him in accordance with the plea agreement in Case Nos. CM-2014-358, CF-2014-578 and CF-2017-5 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued forthwith upon the filing of this decision with the Clerk of this Court.

AN APPEAL FROM THE DISTRICT COURT OF KAY COUNTY

THE HONORABLE DAVID BANDY, ASSOCIATE DISTRICT JUDGE

APPEARANCES

JARROD STEVENSON
Attorney at Law
100 N. Main St., Suite 200
Newkirk, OK 74647
COUNSEL FOR APPELLANT

JEREMY STILLWELL
Appellate Defense Counsel
P. O. Box 926
Norman, OK 73070
COUNSEL FOR APPELLANT

BRIAN HERMANSON
District Attorney
Kay County Courthouse
Newkirk, OK 74647
COUNSEL FOR THE STATE

MIKE HUNTER
Oklahoma Attorney General
TESSA L. HENRY
Assistant Attorney General
313 N.E. 21st Street
Oklahoma City, OK 73105
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.:

LEWIS, P.J.: Concur

KUEHN, V.P.J.: Concur

HUDSON, J.: Concur

ROWLAND, J.: Concur

RA/F

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Footnotes:

1. 63 O.S.2011, § 2-405
2. 63 O.S.Supp.2012, § 2-401(B)(2)
3. 21 O.S.2011, § 1435
4. 21 O.S.Supp.2016, § 1713
5. 22 O.S.2011, § 471.7(E)
6. Hagar U. State, 1999 OK CR 35, I 11, 990 P.2d 894, 898
7. Walker v. State, 1989 OK CR 65, I 5, 3 780 P.2d 1181, 1183
8. Lewis, 2009 OK CR 30, I 12, 220 P.3d at 1144
9. Wallace U. State, 1977 OK CR 154, I 8, 562 P.2d 1175, 1177
10. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-405 (2011) - Possession of Drug Paraphernalia
• Okla. Stat. tit. 63 § 2-401(B)(2) (Supp. 2012) - Possession of a Controlled Dangerous Substance with Intent to Distribute
• Okla. Stat. tit. 21 § 1435 (2011) - Second Degree Burglary
• Okla. Stat. tit. 21 § 1713 (Supp. 2016) - Knowingly Concealing Stolen Property
• Okla. Stat. tit. 22 § 471.7(E) (2011) - Drug Court Termination Procedures

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Lewis v. State, 2009 OK CR 30, I 10, 220 P.3d 1140, 1143
• State v. Farthing, 2014 OK CR 4, I 4, 328 P.3d 1208, 1209
• Hagar v. State, 1999 OK CR 35, I 11, 990 P.2d 894, 898
• Walker v. State, 1989 OK CR 65, I 5, 780 P.2d 1181, 1183
• Wallace v. State, 1977 OK CR 154, I 8, 562 P.2d 1175, 1177