Hazel M. Covey v State Of Oklahoma

RE 2006-0808

Filed: Jun. 26, 2007

Not for publication

Prevailing Party: Hazel M. Covey

Summary

Hazel M. Covey appealed her conviction for revocation of a suspended sentence. Her conviction and sentence were reversed, and the case was sent back for a new hearing. Judge Gary L. Lumpkin noted that there was not enough evidence to show that she knowingly gave up her right to have a lawyer during the hearing.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the revocation order of the District Court is REVERSED and the matter is REMANDED to the District Court for a new hearing on the State's application to revoke with Appellant represented by counsel or a valid waiver in the record. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision. IT IS SO ORDERED. WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 26th day of June , 2007.

Issues

• Was there a valid waiver of the right to counsel at the revocation hearing?
• Did the record show that the appellant was advised of her right to counsel and the consequences of self-representation?
• Was the revocation of the appellant's suspended sentence conducted in accordance with statutory requirements regarding legal representation?

Findings

• the court erred in finding that Appellant knowingly and voluntarily waived her right to counsel
• the revocation order of the District Court is reversed
• the matter is remanded to the District Court for a new hearing with Appellant represented by counsel

RE 2006-0808

Jun. 26, 2007

Hazel M. Covey

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HAZEL M. COVEY, )
) Appellant, )
) V. ) No. RE 2006-0808 )
STATE OF OKLAHOMA, )
Appellee. )

ORDER REVERSING AND REMANDING ORDER REVOKING SUSPENDED SENTENCE

Appellant pled guilty October 5, 2005, in the District Court of Bryan County, District Court Case No. CF-2003-653, to Uttering Two or More Bogus Checks Exceeding $500.00, After Former Conviction. She was sentenced to five years, all suspended, a $100.00 fine, costs and fees. She was also ordered to pay $28,363.09 in restitution.

On February 15, 2006, the State filed a motion to revoke Appellant’s suspended sentence. Following a revocation hearing May 31, 2006, before the Honorable Rocky L. Powers, Associate District Judge, three years of Appellant’s suspended sentence was revoked. Appellant appeals from the revocation of her suspended sentence.

On appeal, Appellant raised the following proposition of error: Hazel Covey did not knowingly and voluntarily waive her right to be represented by counsel. Appellant appeared for her revocation hearing on May 31, 2006. The following transpired:

The Court: And where is your attorney, Ms. Covey?
Appellant: I don’t have one. I came up here to get a court appointed but they said I had to have $40 and I don’t get a social security check until the 3rd and I didn’t have no money until the 3rd.
The Court: Well, you made bond about three times in this case since this Petition or Motion to Revoke was filed. The original bond was in the amount of $2500 and then apparently on March 21st bond was set at $250 cash only and then when you failed to appear on May 3 bond was set at $5,000 and you made a $5,000 surety bond, and as I said the case has been set since February and you had plenty of opportunities to get an attorney one way or the other. And if you haven’t had the $40 to file an Application then it is because you have chosen to spend it on bonds. So, we are going to proceed today. The Court is going to find that you have appeared and have willfully and intentionally waived your right to have counsel present. So, go ahead Ms. Redman.

In Oklahoma, the defendant has a statutory right to be represented by counsel at a revocation hearing. 22 O.S.2001 § 991b(D). The right to counsel may be waived. However, if the right to counsel is waived, the record must show or there must be an allegation and evidence which show that an accused was offered counsel but intelligently and understandingly rejected the offer. This record is mandatory and anything less is not waiver. Lineberry v. State, 1983 OK CR 115, ¶ 6, 668 P.2d 1144.

In this case, we do not find a record that Appellant wanted to represent herself or that she was advised of the right to counsel for this proceeding. We do not find Appellant was advised of the dangers and disadvantages of self-representation. The record is void of a voluntary, intelligent, and knowing waiver of the right to counsel.

IT IS THEREFORE THE ORDER OF THIS COURT that the revocation order of the District Court is REVERSED and the matter is REMANDED to the District Court for a new hearing on the State’s application to revoke with Appellant represented by counsel or a valid waiver in the record. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 26th day of June, 2007.

GARY L. LUMPKIN, Presiding Judge
CHARLES A. JOHNSON, Vice Presiding Judge
CHARLES S. CHAPEL, Judge
ARLENE JOHNSON, Judge
DAVID B. LEWIS, Judge
ATTEST: Clerk

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Footnotes:

1. 22 O.S.2001 § 991b(D).
2. Lineberry v. State, 1983 OK CR 115, II 6, 668 P.2d 1144.
3. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007).

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 991b(D) - Right to Counsel in Revocation Hearing

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:

• Lineberry v. State, 1983 OK CR 115, II 6, 668 P.2d 1144