Deaundrae Lance Dority v The State Of Oklahoma

F 2004-0328

Filed: Jul. 13, 2005

Not for publication

Prevailing Party: Deaundrae Lance Dority

Summary

Deaundrae Lance Dority appealed his conviction for Drug Trafficking and Distribution of a Controlled Substance. His conviction and sentence were reversed. Judge Arlene Johnson dissented. In this case, Dority pleaded guilty to drug charges and initially received a five-year deferred sentence. However, the State wanted to accelerate his sentence because they believed he did not follow probation rules. During a hearing, the judge decided that Dority did not need a lawyer because he could hire his own, but this was questionable since he was only 19 and did not appear with legal representation. Dority argued that the hearing was not fair because he didn’t have a lawyer, and the judge seemed to have already made up his mind about the punishment before the hearing. The court agreed with Dority that he was not properly advised about his right to have a lawyer and that the hearing was not conducted fairly. As a result, they reversed the decision and ordered that if there is a new hearing, he must be properly represented by a lawyer.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the acceleration of Appellant's deferred sentences in the District Court of Garfield County, Case Nos. CF-2002-308 and CF-2002-518, is REVERSED. SHOULD THE DISTRICT ATTORNEY ELECT TO SET A NEW HEARING ON THE APPLICATIONS TO ACCELERATE, THE DISTRICT COURT SHALL ENSURE APPELLANT IS PROPERLY REPRESENTED BY COUNSEL AND ADVISED OF THE RIGHT TO A CERTIORARI REVIEW OF THE VALIDITY OF THE PLEAS. IT IS SO ORDERED.

Issues

• Was there a denial of the assistance of counsel without a knowing and voluntary waiver during the acceleration hearing?
• Did the trial judge pre-judge the ultimate sentence and refuse to consider all possible punishment options, violating the right to a fundamentally fair proceeding?
• Did the trial court commit legal errors or abuse its discretion when ordering the sentences to run consecutively?
• Are the sentences imposed excessive and in need of modification?
• Did the accumulation of errors result in a fundamentally unfair adjudicatory proceeding?
• Was the Appellant properly advised of the right to withdraw his guilty plea upon acceleration?

Findings

• the court erred in denying the appellant assistance of counsel without a knowing and voluntary waiver
• the trial judge pre-judged the ultimate sentence, depriving the appellant of a fair and impartial proceeding
• the trial court committed legal errors and/or abused its discretion in ordering the sentences to run consecutively
• the sentences imposed were excessive and must be modified
• the accumulation of errors resulted in a fundamentally unfair adjudicatory proceeding
• the acceleration of appellant's deferred sentences is reversed

F 2004-0328

Jul. 13, 2005

Deaundrae Lance Dority

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

REVERSING AND REMANDING

Appellant, pro se, pled guilty January 7, 2003, to Trafficking in Illegal Drugs in Garfield County District Court Case No. CF-2002-308 and to Distribution of Controlled Substance in Garfield County District Court Case No. CF-2002-518. Appellant, age 19, received a five-year deferred sentence in each case, after successfully completing the RID program as ordered by the District Court. The State filed applications to accelerate Appellant’s deferred sentences. Following a joint hearing on March 18, 2004, the Honorable Ronald G. Franklin, District Judge, found Appellant failed to comply with the rules and conditions of probation. Judge Franklin sentenced Appellant to twenty-five years in each case and ordered the sentences to run consecutively. Appellant appeals from the acceleration of his deferred sentences.

On appeal, Appellant raised the following propositions of error:

1. The acceleration hearing was structurally unfair because the trial court denied Dority the assistance of counsel without a knowing and voluntary waiver.
2. The trial judge pre-judged the ultimate sentence imposed at the acceleration hearing and refused to consider all possible punishment options which deprived Dority of his constitutional right to a fundamentally fair proceeding before a fair and impartial judge.
3. The trial court committed legal errors and/or abused its discretion when it ordered the sentences to be served consecutively.
4. The sentences imposed are excessive and must be modified.
5. The accumulation of errors resulted in a fundamentally unfair adjudicatory proceeding.

Finding Appellant able to hire his own attorney and failing to appear with counsel on March 18, 2004, the trial judge ordered the acceleration hearing to proceed without counsel representing Appellant. We find nothing in the record to support the trial judge’s conclusion that this nineteen-year-old defendant was able to hire his own attorney. Due process requirements in acceleration hearings include the right to counsel. See Bourland v. State, 1993 OK CR 14, 14, 848 P.2d 580. The right to counsel may be waived if done knowingly and voluntarily, but waiver will not be lightly presumed. The trial judge must indulge every reasonable presumption against waiver. Painter v. State, 1988 OK CR 224, 1111-10-11, 762 P.2d 990. A record of the knowing and voluntary waiver is mandatory; in the absence of a sufficient record, waiver will not be found. Braun v. State, 1995 OK CR 42, 7710-12, 909 P.2d 783.

In the present case, we find nothing in the record that meets the requirements for a valid waiver of the right to counsel by Appellant. Therefore, based upon a review of the record before this Court, we agree that Appellant’s first proposition of error has merit and this case must be reversed. As for the remaining propositions of error, Appellant did not file a motion to withdraw his plea of guilty in the District Court, and as a result, the only issue properly before this Court on appeal is the validity of the acceleration order. However, we find no record of Appellant being advised of the right to withdraw his plea of guilty upon acceleration as set forth in Rule 1.2(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005).

IT IS THEREFORE THE ORDER OF THIS COURT that the acceleration of Appellant’s deferred sentences in the District Court of Garfield County, Case Nos. CF-2002-308 and CF-2002-518, is REVERSED. SHOULD THE DISTRICT ATTORNEY ELECT TO SET A NEW HEARING ON THE APPLICATIONS TO ACCELERATE, THE DISTRICT COURT SHALL ENSURE APPELLANT IS PROPERLY REPRESENTED BY COUNSEL AND ADVISED OF THE RIGHT TO A CERTIORARI REVIEW OF THE VALIDITY OF THE PLEAS. IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 13th day of July, 2005.

CHARLES S. CHAPEL, Presiding Judge
GARY L. LUMPKIN, Vice Presiding Judge
CHARLES A. JOHNSON, Judge
ARLENE JOHNSON, Judge

ATTEST:
Recharks Richie, Clerk

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Footnotes:

1. Okla. Stat. tit. 22 § 1.2(D)(5)
2. Bourland v. State, 1993 OK CR 14, 848 P.2d 580.
3. Painter v. State, 1988 OK CR 224, 762 P.2d 990.
4. Braun v. State, 1995 OK CR 42, 909 P.2d 783.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for Trafficking in Illegal Drugs
• Okla. Stat. tit. 63 § 2-415 (2011) - Distribution of Controlled Dangerous Substances
• Okla. Stat. tit. 22 § 982 (2011) - Rights of Defendants in Criminal Proceedings
• Okla. Stat. tit. 22, Ch. 18, App. Rule 1.2(D)(5) (2005) - Procedure for Withdrawal of Plea
• Okla. Stat. tit. 21 § 666 (2011) - Due Process Requirements in Court Proceedings

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:

• Bourland v. State, 1993 OK CR 14, 14, 848 P.2d 580
• Painter v. State, 1988 OK CR 224, 1111-10-11, 762 P.2d 990
• Braun v. State, 1995 OK CR 42, 7710-12, 909 P.2d 783