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F-2011-684

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Harold Robert Walker, Jr. v The State Of Oklahoma

F-2011-684

Filed: Apr. 5, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Harold Robert Walker, Jr. appealed his conviction for Driving Under the Influence of Drugs (Second Offense), Possession of Controlled Substance (Marijuana) (Second Offense), and Carrying a Concealed Weapon. His conviction and sentence were based on a plea agreement that allowed him to join a Drug Court program. However, when Walker failed to complete the program successfully, the court imposed sentences according to the agreement. Walker argued that he should have received credit for six months he spent in jail before starting Drug Court treatment. He also claimed that the sentence for Carrying a Concealed Weapon was too long and that the court wrongly terminated his participation in the Drug Court program. The court upheld the termination but agreed that the sentences were longer than allowed by law. The decision of the court was to affirm the termination from the Drug Court program but ordered the lower court to correct the sentence lengths. Judge Lumpkin disagreed with part of the decision and believed that Walker's complaints about the sentences should not have been considered in this appeal.

Decision

The order of the District Court of Okmulgee County terminating Appellant, Harold Robert Walker, Jr., from the Okmulgee County Drug Court Program in Case Nos. CF-2008-129 and CF-2008-184, is AFFIRMED. This matter is REMANDED, however, with instructions to the District Court to vacate its order denying credit towards the concurrent sentences imposed in CF-2008-129 and CF-2008-184 for that six-month term in county jail served by Walker and cause certification of such jail-time served to be made to the Oklahoma Department of Corrections. On remand the District Court is further instructed to resentence Walker on Count 2 in CF-2008-184 to a sentence within the statutorily prescribed range of punishment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), MANDATE IS ORDERED ISSUED on the filing of this decision.

Issues

  • whether the trial court erred in denying Mr. Walker credit for the six months incarceration ordered to be served after entry of his plea agreement to participate in drug court, but before his drug court participation began, resulting in sentences in excess of those agreed upon and in excess of the statutory punishment range in CF-2008-129;
  • whether the six-month sentence imposed for Carrying Concealed Weapon exceeds the statutory range of punishment for that offense;
  • whether the District Court erred in terminating Walker's participation in the Drug Court program based on violations for which he had already been punished.

Findings

  • the court erred in denying Mr. Walker credit for the six months of incarceration ordered to be served after entry of his plea agreement to participate in drug court
  • the court erred in imposing a six-month sentence for Carrying Concealed Weapon that exceeds the statutory range of punishment for that offense
  • the court did not err in terminating Walker's participation in the Drug Court program based on unsanctioned violations

F-2011-684

Apr. 5, 2013

Harold Robert Walker, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE: In the District Court of Okmulgee County, Case No. CF-2008-129, Harold Robert Walker, Jr., Appellant, was charged with Driving a Motor Vehicle While Under the Influence of Drugs (Second Offense)-a Felony, in violation of 47 O.S.Supp.2006, § 11-902(A)(3). Walker was also charged in Case No. CF-2008-184 with, Possession of Controlled Substance (Marijuana) (Second Offense)-a Felony, in violation of 63 O.S.Supp. § 2-402 (Count 1); and with, Carrying Concealed Weapon-a Misdemeanor in violation of 21 O.S.Supp.2007, § 1272 (Count 2). While represented by counsel, Walker pled guilty to these three offenses. On January 23, 2009, the Honorable Duane A. Woodliff, Associate District Judge, accepted Walker’s pleas, and, pursuant to a plea agreement, ordered Walker admitted to the Okmulgee County Drug Court Program. Judge Woodliff also sentenced Walker to serve six months in the county jail before beginning his Drug Court program. Judge Woodliff delayed further sentencing pending Walker’s successful completion of Drug Court. According to the terms of his drug court plea, all charges against him would be dismissed if he successfully completed the program. If he failed to complete the program, however, he would be sentenced to concurrent terms of five years each on the felony counts and a concurrent term of six months on the misdemeanor charge. On June 30, 2011, the State filed an Application to Terminate Drug Court Participation and Sentence Defendant. Following an evidentiary hearing on July 20, 2011, the District Court terminated Walker’s participation in the Drug Court program and sentenced him according to the plea agreement. Walker appeals raising these issues: (1) whether the trial court erred in denying Mr. Walker credit for the six months incarceration ordered to be served after entry of his plea agreement to participate in drug court, but before his drug court participation began, resulting in sentences in excess of those agreed upon and in excess of the statutory punishment range in CF-2008-129; (2) whether the six-month sentence imposed for Carrying Concealed Weapon exceeds the statutory range of punishment for that offense; and (3) whether the District Court erred in terminating Walker’s participation in the Drug Court program based on violations for which he had already been punished. We affirm the District Court’s order to terminate Walker’s Drug Court participation and impose sentence. We find, however, that the sentences imposed in case CF-2008-129 and case CF-2008-184 exceed the maximum punishment allowed by law and remand this case with instructions.

Jurisdiction

Relying on our unpublished decision, Reid v. State, No. F-2007-346 (Okl.Cr. June 5, 2008), the State responds that because Appellant’s claims challenge the sentence imposed below, they are not properly before this Court for review in a Drug Court termination appeal. Walker’s claim here, unlike the claim raised in Reid, presents a jurisdictional issue, and we review it as such. See Ex parte Custer, 88 Okl.Cr. 154, 157, 200 P.2d 781, 783 (1948) (it is apparent that the court was without jurisdiction to impose a three year sentence when the maximum provided for by statute was only two years); and See Johnson v. State, 1980 OK CR 45, ¶ 30, 611 P.2d 1137, 1145 (Lack of jurisdiction, for instance, can be raised at any time.).

1. In case number CF-2008-129 Walker pled guilty to a violation of 47 O.S.Supp.2006, § 11-902 (c)(2), a first felony DUI punishable by placement in the custody of the Department of Corrections for not less than one (1) year and not to exceed five years 47 O.S.Supp.2006, § 11-902 (c)(2)(b). The District Court sentenced him to the maximum term of five years and refused his request that the six months he had served before beginning Drug Court treatment be credited to his sentence. Walker argues that he has effectively been sentenced to five years and six months in Case No. CF-2008-129, a punishment exceeding the maximum allowed by law. We agree, and find that this case must be remanded to the District Court for sentencing in accordance with the law.

2. In his second proposition, Walker challenges the lawfulness in the six months sentence imposed upon his plea of guilty to Carrying Concealed Weapon. The statutory maximum for this first misdemeanor offense of Carrying Concealed Weapon is thirty days confinement in county jail. The State again responds that this claim is beyond the proper scope of this appeal. For the reasons stated in our disposition of Walker’s first proposition of error, we find relief must be granted here, and remand for the imposition of a sentence within the statutory range of punishment.

3. We find no error in the District Court’s termination of Walker’s participation in the Drug Court program. The State alleged Walker had made false reports to the Drug Court about his sobriety and drug use as revealed by several drug tests given Walker throughout the month of May 2011 wherein he tested positive for use of marijuana and synthetic cannabis. The State alleged Walker had not been sanctioned for any of these violations. Because the parties waived the presence of a court reporter, there is no transcript of the evidentiary hearing on the State’s Application to Terminate. The record does contain, however, a written Drug Court Termination Hearing Minute and Orders entered by the District Court intended to summarize the hearing and memorialize the District Court’s orders therein. According to that document, Walker stipulated to the historical accuracy of the numerous violations and sanctions alleged in the State’s Application to Terminate. While he disputed the details of the non-sanctioned violations alleged against him in the Application as grounds for termination, he stipulated to using marijuana in violation of his performance contract, the main thrust of the unsanctioned violations alleged. The District Court’s written order finds Walker violated the plea agreement and the performance contract, that sanctions previously imposed were insufficient to gain his compliance, and that termination from Drug Court is the appropriate remedy. On appeal Walker renews his argument that his unsanctioned marijuana use was not deserving of termination and should have been recognized by the District Court as a relapse contemplated by the Drug Court Act as deserving escalating sanctions, short of termination. Walker argues, in effect, that the drug usage violation would not, standing alone, have justified his termination from the program, and that, therefore, we must conclude that the District Court relied upon his previous (sanctioned) violations in reaching his decision. The record does not support Walker’s contention. To terminate an offender from Drug Court, the State must prove by a preponderance of the evidence that the offender has committed an unsanctioned violation of the conditions of his plea agreement or performance contract. 22 O.S.2011, § 471.7(E); Hagar v. State, 1999 OK CR 35, ¶ 11, 990 P.2d 894, 898. If such violation is proved, the trial judge must determine whether the offender should be held accountable by ordering progressively increasing sanctions or providing incentives, rather than removing the offender from the program, or whether instead the offender’s conduct requires revocation from the program. 22 O.S.2011, § 471.7(E). Unless the new violation requires termination, in determining whether revocation for the new violation is appropriate, the trial judge considers whether disciplinary sanctions have been insufficient to gain compliance. Id.; Hagar, ¶ 11, 990 P.2d at 898. That decision requires an examination of a defendant’s Drug Court program history, including past incentives, violations, and sanctions. That inquiry begins, however, after a new unsanctioned violation of the plea agreement or performance contract has been proven. The purpose of the inquiry is to determine the appropriate remedy for the new violation and is not for the purpose of creating a new violation. Walker criticizes the State’s inclusion of his Drug Court history in its Application to Terminate, but it is clear that such history has a legitimate place in the District Court judgment once the new violation has been proven. There is no error here in the State listing an offender’s Drug Court history in an application to terminate so long as that application continues to give sufficient notice of what new violation is being alleged as cause for termination.

In Walker’s matter, a review of the record does not show the District Court considered the history listed in the State’s Application (a history to which Walker stipulated as being accurate) in any manner inconsistent with Oklahoma’s Drug Court Act. Having reviewed the District Court’s termination decision for an abuse of discretion, we find no abuse and affirm Walker’s termination from Drug Court. Further we find no support for the contention that the District Court improperly relied on Walker’s history in the program in reaching the decision to terminate. The application gave Walker sufficient notice of the new unsanctioned violations alleged in support of the State’s application to terminate.

DECISION

The order of the District Court of Okmulgee County terminating Appellant, Harold Robert Walker, Jr., from the Okmulgee County Drug Court Program in Case Nos. CF-2008-129 and CF-2008-184, is AFFIRMED. This matter is REMANDED, however, with instructions to the District Court to vacate its order denying credit towards the concurrent sentences imposed in CF-2008-129 and CF-2008-184 for that six-month term in county jail served by Walker and cause certification of such jail-time served to be made to the Oklahoma Department of Corrections. On remand the District Court is further instructed to resentence Walker on Count 2 in CF-2008-184 to a sentence within the statutorily prescribed range of punishment.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), MANDATE IS ORDERED ISSUED on the filing of this decision.

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Footnotes:

  1. 47 O.S.Supp.2006, § 11-902(A)(3)
  2. 63 O.S.Supp. § 2-402
  3. 21 O.S.Supp.2007, § 1272
  4. Ex parte Custer, 88 Okl.Cr. 154, 157, 200 P.2d 781, 783 (1948)
  5. Johnson v. State, 1980 OK CR 45, I 30, 611 P.2d 1137, 1145
  6. 47 O.S.Supp.2006, § 11-902(c)(2)
  7. 22 O.S.2011, § 471.7(E)
  8. Hagar v. State, 1999 OK CR 35, I 11, 990 P.2d 894, 898
  9. 22 O.S.2011, § 471.7(E)
  10. 22 O.S.2001, § 1051(a)
  11. Holloway v. State, 2008 OK CR 14, I 8, 182 P.3d 845, 847
  12. Shepard v. State, 1988 OK CR 97, II 21, 756 P.2d 597, 602
  13. In re Tidwell, 1957 OK CR 33, I 4, 309 P.2d 302, 304
  14. 22 O.S.2011, § 471 et.seq.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 47 § 11-902 (Supp. 2006) - Driving a Motor Vehicle While Under the Influence of Drugs
  • Okla. Stat. tit. 63 § 2-402 (Supp. n.d.) - Possession of Controlled Substance
  • Okla. Stat. tit. 21 § 1272 (Supp. 2007) - Carrying Concealed Weapon
  • Okla. Stat. tit. 47 § 11-902 (Supp. 2006) - First felony DUI
  • Okla. Stat. tit. 22 § 471.7 (2011) - Drug Court Program Violations
  • Okla. Stat. tit. 22 § 1051(a) (2001) - Procedures for Appeal
  • Okla. Stat. tit. 22 § 1080(c) (2011) - Uniform Post-Conviction Procedure Act
  • Okla. Stat. tit. 22 § 471 et seq. (2011) - Drug Court Statutes

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:

  • Reid v. State, No. F-2007-346 (Okl.Cr. June 5, 2008)
  • Ex parte Custer, 88 Okl.Cr. 154, 157, 200 P.2d 781, 783 (1948)
  • Johnson v. State, 1980 OK CR 45, ¶ 30, 611 P.2d 1137, 1145
  • Hagar v. State, 1999 OK CR 35, ¶ 11, 990 P.2d 894, 898
  • Lewis v. State, 2009 OK CR 30, ¶ 10, 220 P.3d 1140, 1143
  • Walker v. State, No. F-09-1054 (Okl.Cr. April 5, 2011)
  • Frapp v. State, No. F-09-51 (Okl.Cr.Aug. 6, 2010)
  • Proctor v. State, No. F-09-183 (Okl.Cr. July 23, 2010)
  • Wadlow v. State, No. F-08-739 (Okl.Cr. May 11, 2009)
  • Line v. State, No. F-05-664 (Okl.Cr. Apr. 13, 2007)
  • Holloway v. State, 2008 OK CR 14, ¶ 8, 182 P.3d 845, 847
  • Shepard v. State, 1988 OK CR 97, ¶ 21, 756 P.2d 597, 602
  • In re Tidwell, 1957 OK CR 33, ¶ 4, 309 P.2d 302, 304

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