Anthony John Hathcock v The State Of Oklahoma

F 2002-1481

Filed: Feb. 3, 2004

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Anthony John Hathcock appealed his conviction for failing to provide for his minor child. Conviction and sentence were reversed, and the case was sent back for a new hearing. Judge Reta M. Strubhar dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the acceleration of Appellant's deferred sentence in the District Court of Bryan County, Case No. CF-2001-373, is REVERSED AND REMANDED TO THE DISTRICT COURT FOR A NEW ACCELERATION HEARING ON THE MOTION TO ACCELERATE SENTENCE PREVIOUSLY FILED BY THE DISTRICT ATTORNEY WITH DIRECTION THAT THE DISTRICT COURT SHALL ENSURE APPELLANT IS PROPERLY REPRESENTED BY COUNSEL. IT IS so ORDERED.

Issues

• was there a knowing and voluntary waiver of the right to counsel by Mr. Hathcock?
• did the State provide competent evidence to justify the acceleration of Mr. Hathcock's sentence?
• is the record ambiguous regarding the specific terms of Mr. Hathcock's accelerated deferred sentence?

Findings

• the court erred in not ensuring Appellant was properly represented by counsel
• the evidence provided by the State was incompetent to support the acceleration of the sentence
• the order must be clarified regarding the terms of the accelerated sentence
• the acceleration of Appellant's deferred sentence is reversed and remanded for a new acceleration hearing

F 2002-1481

Feb. 3, 2004

Anthony John Hathcock

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, pro se, pled no contest November 6, 2001, in the District Court of Bryan County, Case No. CF-2001-373, to Omitting To Provide For Minor Child, and received a five year deferred sentence. Appellant was ordered to pay current support of $100.00, per month and $14,156.68 on arrearage at the rate of $240.00 per month plus court costs. On December 5, 2001, the State filed an Application to Accelerate Deferred Sentence for Appellant’s failure to make his support payment. Following a hearing June 20, 2002, with Appellant appearing pro se, the Honorable Rocky L. Powers, Associate District Judge, found Appellant violated the terms of the deferred sentence. Appellant was sentenced November 13, 2002, to one year in the Department of Corrections. Appellant appeals from the November 13, 2002, acceleration of his deferred sentence.¹

On appeal Appellant raised the following propositions of error:
1. Mr. Hathcock did not knowingly and voluntarily waive his right to be represented by counsel.
2. The State provided incompetent evidence to accelerate Mr. Hathcock’s sentence.
3. The record in Mr. Hathcock’s case is ambiguous as to what his deferred sentence was actually accelerated to, thus the order must be clarified.

As for Appellant’s first proposition of error, in its Response Brief, the State agrees that the defendant’s claim in this regard has merit and requests this Court remand Appellant’s case for a new acceleration hearing should the Bryan County District Attorney’s Office, in its discretion, choose to re-file the application to accelerate. Appellant requests the case be reversed and remanded for dismissal, or in the alternative, for the Court to apply Appellant’s time of incarceration towards his fees, costs and judgments. However, Appellant never filed a motion to withdraw his plea of guilty in the District Court, and as a result, the only issue before this Court on appeal is the acceleration of the deferred sentence. We agree, based upon a review of the record before this Court and the confession by the State, that Appellant’s first proposition has merit and this case must be reversed and remanded to the District Court.

IT IS THEREFORE THE ORDER OF THIS COURT that the acceleration of Appellant’s deferred sentence in the District Court of Bryan County, Case No. CF-2001-373, is REVERSED AND REMANDED TO THE DISTRICT COURT FOR A NEW ACCELERATION HEARING ON THE MOTION TO ACCELERATE SENTENCE PREVIOUSLY FILED BY THE DISTRICT ATTORNEY WITH DIRECTION THAT THE DISTRICT COURT SHALL ENSURE APPELLANT IS PROPERLY REPRESENTED BY COUNSEL. IT IS so ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 3 day of February, 2004.

Chie A. JOHNSON, Presiding Judge
STEVE CHARLES, Vice Presiding Judge
GARY L. LUMPKIN, Judge
Cluss S. Ohal, Judge
CHARLES S. CHAPEL, Judge
RETA M. STRUBHAR, Judge
ATTEST: Clerk

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Footnotes:

1. While there is some question regarding waiver by the Appellant's subsequent action, we do not need to address that issue due to the State's confession of lack of record supporting the waiver of right to counsel in the acceleration proceeding.
2. Appellant's first proposition has merit and this case must be reversed and remanded to the District Court.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111.1 - Omitting To Provide For Minor Child
• Okla. Stat. tit. 21 § 701.8 - Deferred Sentences
• Okla. Stat. tit. 22 § 982 - Acceleration of Deferred Sentences
• Okla. Stat. tit. 22 § 1051 - Right to Counsel

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:

No case citations found.