Spencer Joe Cuccaro v State Of Oklahoma

C-2018-1018

Filed: Jan. 16, 2020

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Spencer Joe Cuccaro appealed his conviction for possession of methamphetamine and related offenses. His conviction was upheld, and he was sentenced to life imprisonment with thirty-five years to serve for possession of methamphetamine, along with additional sentences for other offenses to be served consecutively. Judge Kuehn disagreed with the majority opinion.

Decision

The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there coercion involved in Petitioner's pleas of no contest, rendering them not knowingly or voluntarily entered?
• Were Petitioner's pleas knowingly and voluntarily entered given his misunderstanding of the punishment for failure to complete the Drug Court program?
• Was the challenge to the stipulation to revoke probation in CF-2011-74 and CF-2008-353 properly before the Court?

Findings

• the court did not err in denying Petitioner's application to withdraw his plea
• the evidence was sufficient to support the conclusion that the plea was made knowingly and voluntarily
• the trial court did not abuse its discretion in rejecting the claim of coercion
• the court affirmed the judgment and sentence of the District Court

C-2018-1018

Jan. 16, 2020

Spencer Joe Cuccaro

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

HUDSON, JUDGE: Petitioner, Spencer Joe Cuccaro, appeals to this Court from an order of the District Court of Kay County, entered by the Honorable David Bandy, Associate District Judge, denying Petitioner’s application to withdraw his pleas in Case Nos. CF-2016-561, CF-2011-74 and CF-2008-353. On June 22, 2017, Petitioner was placed in the Kay County Drug Court program. In Case No. CF-2016-561, Petitioner entered a plea of no contest to Count 1: Possession of Controlled Dangerous Substance (Methamphetamine), After Former Conviction of Two or More Felonies; Count 2: Driving With License Cancelled/Suspended/Revoked (misdemeanor); Count 3: Unlawful Possession of Drug Paraphernalia (misdemeanor); and Count 4: Failure to Maintain Insurance or Security (misdemeanor). Petitioner’s plea was pursuant to an agreement that if Petitioner was successful in Drug Court, he would be sentenced to a term of life imprisonment with the sentence suspended; but if unsuccessful in Drug Court he would be sentenced to a term of life imprisonment with thirty-five years to serve and the balance suspended. In Case Nos. CF-2011-74 and CF-2008-353, Petitioner stipulated to an application to revoke alleging he violated probation by committing the new crimes alleged in Case No. CF-2016-561. Petitioner’s stipulations were pursuant to agreements that if Petitioner was successful in Drug Court, his sentences in CF-2011-74 and CF-2008-353 would remain suspended; but if unsuccessful in Drug Court his suspended sentences would be revoked. On February 15, 2018, the State filed in all three cases a Petition to Remove Defendant From Drug Court alleging he failed to comply with rules and failed to progress in Drug Court because Petitioner: (a) committed the new crimes of Count 1: Trafficking in Illegal Drugs (Methamphetamine), and Count 2: Unlawful Use of a Police Radio, as charged in Osage County District Court Case No. CF-2018-40; (b) committed the new crime of Possession of Controlled Dangerous Substance (Methamphetamine), misdemeanor, as charged in Kay County District Court Case No. CM-2017-546; (c) was not current with his Bridgeway requirements (counseling meetings) and was behind fifteen meetings; and (d) owed $130.00 in Drug Court fees. On August 3, 2018, the State filed in all three cases an Amended Petition to Remove Defendant From Drug Court adding an allegation that Petitioner (e) committed the new crime of Possession of a Firearm After Felony Conviction, After Former Conviction of Two or More Felonies, as charged in Osage County District Court Case No. CF-2017-499. On August 10, 2018, the Drug Court termination hearing was held before Judge Bandy. After hearing testimony from the prosecution’s witnesses¹ along with argument from counsel for both parties, the District Court terminated Petitioner from Drug Court. Judge Bandy further sentenced Petitioner in accordance with his plea agreement and Drug Court contract. Petitioner was sentenced in CF-2016-561 to life imprisonment with all but the first thirty-five years suspended on the felony count of possession of methamphetamine. In CF-2011-74, Petitioner was sentenced to fifteen years imprisonment on the revocation. In CF-2008-353, Petitioner was sentenced to five years imprisonment on the revocation. Judge Bandy ordered the sentences imposed in all three cases to be served consecutively and ordered no credit for time served. On August 17, 2018, Petitioner filed his Application to Withdraw Plea of Guilty in all three cases. Petitioner alleged that his plea was not knowingly and voluntarily entered and there was an insufficient factual basis for the plea. Specifically, Petitioner alleged he was threatened and coerced by a Kay County Sheriff’s Deputy, “Brian Ware[,]” to sign for the Drug Court deal. Petitioner further alleged he had no knowledge that termination from the Drug Court program would result in a collective twenty year sentence in CF-2011-74 and CF-2008-353 that would run consecutive to the sentence in CF-2016-561. On September 12, 2018, the hearing on Petitioner’s Application to Withdraw Plea of Guilty was held for all three cases. After hearing testimony from five witnesses including Petitioner and his plea counsel, Judge Bandy denied Petitioner’s motion to withdraw plea. Petitioner now appeals the District Court’s order denying his motion to withdraw plea. Petitioner filed his Notice of Intent to Appeal and Designation of Record form with the district court clerk in CF-2016-561, CF-2011-74 and CF-2008-353 on November 6, 2018. Petitioner filed his Petition for Writ of Certiorari with this Court on December 11, 2018. Petitioner’s brief in support of his petition for writ of certiorari was filed with this Court on March 5, 2019. Petitioner now seeks a writ of certiorari alleging the following propositions of error:

I. PETITIONER’S PLEAS OF NO CONTEST WERE ENTERED AS A RESULT OF COERCION, AND THEREFORE THE PLEAS WERE NOT KNOWING OR VOLUNTARY; and
II. PETITIONER’S PLEAS WERE NOT KNOWINGLY AND VOLUNTARILY ENTERED DUE TO THE MISUNDERSTANDING OF THE PUNISHMENT HE WOULD FACE IF HE DID NOT SUCCESSFULLY COMPLETE THE DRUG COURT PROGRAM.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and Petitioner’s brief, we find that no relief is required under the law and evidence. Petitioner’s Petition for Writ of Certiorari is therefore DENIED.

Proposition I. This Court reviews the denial of a motion to withdraw guilty plea for an abuse of discretion. Cox v. State, 2006 OK CR 51, ¶ 18, 152 P.3d 244, 251, overruled on other grounds by State v. Vincent, 2016 OK CR 7, 371 P.3d 1127. On certiorari review of a guilty plea, our review is limited to two inquiries: (1) whether the guilty plea was made knowingly and voluntarily; and (2) whether the district court accepting the guilty plea had jurisdiction. Lewis v. State, 2009 OK CR 30, ¶ 4, 220 P.3d 1140, 1142 (citing Cox, 2006 OK CR 51, ¶ 4, 152 P.3d at 247). A voluntary guilty plea waives all non-jurisdictional defects. Cox, 2006 OK CR 51, ¶ 4, 152 P.3d at 247 (citing Frederick v. State, 1991 OK CR 56, ¶ 5, 811 P.2d 601, 603). In his first proposition of error, Petitioner alleges as he did below that he was physically and mentally abused and coerced by Deputy Matt Ware to enter his plea of no contest in CF-2016-561 and stipulate to the applications to revoke in CF-2011-74 and CF-2008-353. Thus, Petitioner contends he “must be allowed an opportunity to withdraw his plea.” From the outset, there is no question Petitioner’s challenge to his no contest plea in CF-2016-561 is properly before this Court. Petitioner alleges here as below that his plea to the charges in that case was coerced by Deputy Ware and, thus, was not voluntarily made. This is the proper subject of a certiorari appeal. See Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020) (“In all cases, to appeal from any conviction on a plea of guilty or nolo contendere, the defendant must have filed in the trial court clerk’s office an application to withdraw the plea within ten (10) days from the date of the pronouncement of the Judgment and Sentence[.]”) (emphasis added). However, to the extent Petitioner also seeks to withdraw his stipulation to the applications to revoke in CF-2011-74 and CF-2008-353, this aspect of his Proposition I claim is not cognizable under 22 O.S.2011, § 1051 in a certiorari appeal. Petitioner is not challenging his underlying convictions in CF-2011-74 and CF-2008-353. Petitioner’s stipulations to the application to revoke admitted to the facts necessary to support revocation of his suspended sentences after having pled guilty to the charges in those cases years earlier. The question at the revocation hearing was simply whether Petitioner’s previously-imposed sentences should be executed based upon the defendant’s violation of the rules and conditions of probation. See Tryon v. State, 2018 OK CR 20, ¶ 113, 423 P.3d 617, 648. At a revocation hearing, the court only makes a factual determination involving the existence of a violation of the rules and conditions of the suspended sentence.² Because Petitioner is not attempting to appeal his convictions on plea of guilty in CF-2011-74 and CF-2008-353, his attempted certiorari appeal from these two cases is not properly before this Court and are denied. See Tilden v. State, 2013 OK CR 10, ¶ 4, 306 P.3d 554, 556.

Petitioner’s challenge to the District Court’s order denying his motion to withdraw plea in CF-2016-561 is denied on the merits as there was no abuse of discretion. The District Court’s rejection of Petitioner’s claim of abuse and coercion was amply supported by the record in this case. The record shows Petitioner’s plea was knowing and voluntary in all respects. The standard for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970); Hopkins v. State, 1988 OK CR 257, ¶ 2, 764 P.2d 215, 216. The Supreme Court has defined a “voluntary” guilty plea in pertinent part as one made by a defendant who is “fully aware of the direct consequences[.]” Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25 L. Ed. 2d 747 (1970) (internal quotation omitted). In the present case, the record shows Petitioner made a strategic decision to take a plea deal requiring his successful completion of Drug Court, followed by a lifetime of a suspended, probated sentence. Petitioner was fully advised, and aware, of the consequences of failure in Drug Court based upon his conversations with counsel and the plea judge prior to entering the plea. Under the total circumstances presented here, the District Court did not abuse its discretion in denying Petitioner’s application to withdraw plea. Proposition I is denied.

Proposition II. In his second proposition, Petitioner complains his plea was not knowingly and voluntarily made because he was not aware of the severe sentence he would face were he unsuccessful in Drug Court. Petitioner raised this claim in his motion to withdraw plea so it is properly before this Court on appeal. The trial court did not abuse its discretion in rejecting this claim. The record shows Petitioner was aware prior to entering his plea that he would face a life sentence if he failed out of Drug Court. The terms of the plea agreement were expressly set forth in a document signed by Petitioner entitled “Drug Court Sentence Recommendation.” It expressly stated that if Petitioner failed to complete drug court after being admitted, the State would recommend Petitioner be sentenced in CF-2016-561 to Count 1: Life Imprisonment, Petitioner to serve thirty-five years imprisonment with the balance suspended. Further, the State would recommend Petitioner be revoked in full on CF-2008-353 and CF-2011-74 with all sentences to run consecutively and no credit for time served. The record confirms Petitioner was well aware of the consequences he faced if he failed out of Drug Court. Again, Petitioner made a strategic decision to accept the Drug Court plea deal, knowing the relative risks and potential benefits of that offer. The fact that Petitioner utterly failed to complete the Drug Court requirements does not reflect on the validity of Petitioner’s plea. Rather, it reflects upon Petitioner’s failure to follow through despite knowing the consequences for failure were so high. Proposition II is denied.

DECISION The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. The testimony from this hearing was summarized fully in our Summary Opinion affirming the District Court's order terminating Petitioner from Drug Court. See Spencer Joe Cuccaro U. State of Oklahoma, No. F-2018-1087 (Okl. Cr. Dec. 19, 2019) (unpublished).
2. It is true that the revocation orders in CF-2011-74 and CF-2008-353 state Petitioner entered a plea of no contest to the State's applications to revoke. We have held, however, that: [I]t matters not whether Petitioner's actions at the revocation hearing are characterized as a plea of guilty to the Motion to Revoke, are held to be an admission/stipulation to the facts alleged, or are construed as a confession of judgment. The classification placed upon Petitioner's acts at the revocation hearing is of no procedural consequence (as far as appeal is concerned) because an order of revocation is not a conviction but is instead simply an order that a sentence previously entered be executed, either in whole or in part. Burnham U. State, 2002 OK CR 6, I 6 n.2, 43 P.3d 387, 389 n.2.
3. Under 22 O.S. § 471.6(A)(3), when considering any such plea agreement, the court can evaluate whether the terms and conditions of the written negotiated plea... are appropriate.
4. The judge can also deny admission into the program at the final eligibility hearing if, in the court's discretion, the offender is inappropriate for admission to the program. 22 O.S. § 471.6(B)(5).

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 471.6(A)(3) - Plea agreements
• Okla. Stat. tit. 22 § 471.6(B)(5) - Admission to Drug Court program
• Okla. Stat. tit. 22 § 1051 - Application to withdraw plea
• Okla. Stat. tit. 21 § 701.8 - Sentencing for possession of controlled dangerous substances

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:

• Cox v. State, 2006 OK CR 51, II 18, 152 P.3d 244, 251
• Lewis v. State, 2009 OK CR 30, II 4, 220 P.3d 1140, 1142
• Frederick v. State, 1991 OK CR 56, II 5, 811 P.2d 601, 603
• Tryon v. State, 2018 OK CR 20, q 113, 423 P.3d 617, 648
• Tilden v. State, 2013 OK CR 10, H 4, 306 P.3d 554, 556
• Burnham v. State, 2002 OK CR 6, I 6 n.2, 43 P.3d 387, 389 n.2
• North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970)
• Hopkins v. State, 1988 OK CR 257, I 2, 764 P.2d 215, 216
• Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25 L. Ed. 2d 747 (1970)