Charles Milton Smith, Sr. v The State Of Oklahoma

F-2005-786

Filed: Feb. 14, 2007

For publication

Prevailing Party: The State of Oklahoma

Summary

Charles Milton Smith, Sr. appealed his conviction for multiple crimes, including making methamphetamine and child endangerment. His conviction and sentence included ten years in prison and fines totaling $50,000. Bonnie Smith, also convicted of similar charges, received a ten-year prison sentence and a $50,000 fine as well. The court found that they did not receive proper legal representation during their trial, as they were wrongly denied a lawyer after a bond was posted. As a result, the judges decided to reverse their convictions and ordered a new trial. Judge Lumpkin disagreed with this decision.

Decision

The Judgment and Sentence of the district court is REVERSED AND REMANDED FOR A NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an improper denial of the right to appointed counsel based on a change in indigent status after bond was posted?
• Did the trial court fail to conduct a Faretta hearing to determine if the appellants invoked their right to self-representation?
• Should the evidence used in Counts I and II in Mr. Smith's case and both counts in Ms. Smith's case have been suppressed due to a lack of probable cause for the search?
• Did prosecutorial misconduct deprive the appellants of a fair trial and lead to excessive sentencing?
• Are the sentences imposed on the appellants excessive?
• Did the cumulative effect of the errors deprive the appellants of a fair trial?

Findings

• the court erred in denying the right to appointed counsel based on the presumption of non-indigency from posted bond
• the failure to conduct a Faretta hearing was not addressed as the first proposition was sufficient for reversal
• the evidence used in Mr. Smith's Counts I and II and Ms. Smith's counts was not considered due to the outcome of Proposition I
• prosecutorial misconduct was not addressed as the first proposition was sufficient for reversal
• the issue of excessive sentences was not addressed due to the resolution of Proposition I
• the cumulative effect of errors was not addressed due to the resolution of Proposition I

F-2005-786

Feb. 14, 2007

Charles Milton Smith, Sr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, VICE-PRESIDING JUDGE:

Charles Milton Smith, Sr., was charged in the District Court of Marshall County with the crimes of Manufacture of a Controlled Dangerous Substance (Methamphetamine) (Count I), Child Endangerment (Count II) and Possession of a Controlled Dangerous Substance (Count III) in Case No. CF-2005-16. He was also charged with the crimes of Driving a Motor Vehicle While Under the Influence of Drugs (Count I), Failure to Carry Current Owner’s Security Verification (Count II), Operating a Vehicle While Driver’s License is Suspended (Count III), Failure to Wear a Seatbelt (Count IV) and Operating a Vehicle Without Having Paid Taxes (Count V) in Case No. CM-2005-49. The jury found Mr. Smith guilty of all counts charged in Case No. CF-2005-16 and all but Count V in Case No. CM-2005-49. In Case No. CF-2005-16, the jury recommended ten years imprisonment and a $50,000.00 fine on Count I, four years imprisonment on Count II and five years imprisonment on Count III. In Case No. CM-2005-49, the jury recommended one year in jail and a fine of $1,000.00 on Count I, a $100.00 fine on each of Counts II and III, and a $20.00 fine on Count IV. The Honorable John H. Scaggs sentenced Mr. Smith in accordance with the jury’s recommendation and ordered the sentences imposed in Case No. CF-2005-16 to be served consecutively.

Bonnie Smith was charged in the District Court of Marshall County, Case No. CF-2005-15, with Manufacture of a Controlled Dangerous Substance (Methamphetamine) and Child Endangerment (Count II). The jury found Ms. Smith guilty of both counts and assessed punishment at ten years imprisonment and a $50,000 fine on Count I and four years imprisonment on Count II. The Honorable John H. Scaggs sentenced Ms. Smith in accordance with the jury’s recommendation and ordered the sentences to be served consecutively.

Appellants Charles Milton Smith, Sr. and Bonnie Smith were tried in the same proceeding and have raised identical issues on appeal. Therefore their appeals have been consolidated in this single opinion. Appellants raise the following propositions of error:

1. The trial court erroneously ruled that because bond had been posted, Mr. and Ms. Smith were no longer indigent, thereby improperly denying them the right to appointed counsel at their jury trial.
2. The trial court failed to conduct a Faretta v. California hearing to determine whether Mr. and Ms. Smith invoked their right to represent themselves at their jury trial.
3. The evidence used in Counts I and II in Mr. Smith’s case CF-2005-16 and both counts in Ms. Smith’s case CF-2005-15 should be suppressed because the officers lacked probable cause to search their residence.
4. Prosecutorial misconduct deprived Mr. and Ms. Smith of a fair trial and caused the jury to render an excessive sentence.
5. Mr. and Ms. Smith’s sentences are excessive.
6. The cumulative effect of all the errors addressed above deprived Mr. and Ms. Smith of a fair trial.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we reverse and remand for a new trial based upon error raised in Proposition I. In this proposition Appellants alleged that they were indigent and unable to hire an attorney and as such, the district court forced them to proceed pro se at their trial in violation of their Constitutional right to be represented by counsel. The record reflects that Appellants were both initially found to be indigent and entitled to court appointed counsel. However, prior to trial, Mr. Smith’s mother posted bond for both Appellants. Upon the posting of bond, appointed counsel filed a motion to withdraw. This motion was granted at an abbreviated hearing wherein the record indicates no consideration concerning Appellants’ indigent status other than the posting of bond. It is true that the status of a defendant’s indigency is subject to change and therefore, continuously subject to review. However, while the posting of bond is a very significant factor to be considered in determining a defendant’s indigent status, it is not entirely dispositive of the issue. Rather, the posting of bond by a defendant or by another on behalf of a defendant creates only a rebuttable presumption that the defendant is not indigent. In order to ensure that a defendant is not improperly denied counsel to which he or she is constitutionally entitled, the district court must make a record inquiring about the defendant’s financial status and reflecting that the defendant understands that the presumption of non-indigency created by the posting of bond is rebuttable and that he or she may still be entitled to court appointed counsel upon sufficient proof of indigent status. The present case does not reflect that the district court ever inquired on the record about the Smiths’ ability to hire an attorney or ever advised them that the presumption of non-indigency was rebuttable. Rather, it indicates that they were simply told that because they had posted bond they were required to hire their own attorney. It is clear that the appointment of counsel for an indigent defendant is a fundamental right essential to a fair trial. As the record before this Court cannot support a finding that the Smiths were not denied their constitutional right to counsel, their judgments and sentences in the cases at bar must be reversed and remanded for a new trial.

DECISION

The Judgment and Sentence of the district court is REVERSED AND REMANDED FOR A NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF MARSHALL COUNTY

THE HONORABLE JOHN H. SCAGGS, DISTRICT JUDGE

APPEARANCES AT TRIAL
MILTON SMITH, SR.
BONNIE SMITH
PRO SE

APPEARANCES ON APPEAL
KATRINA CONRAD-LEGLER
INDIGENT DEFENSE SYSTEM
ATTORNEY FOR DEFENDANTS
P.O. BOX 926
NORMAN, OK 73070

PAULE’ THRIFT HAGGERTY
ASSISTANT DISTRICT ATTORNEY
MARSHELL COUNTY COURTHOUSE
MADILL, OK 73446

W. A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

THEODORE M. PEEPER
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST
OKLAHOMA CITY, OK 73105

ATTORNEYS FOR THE STATE

OPINION BY C. JOHNSON, V.P.J.
LUMPKIN, P.J.: CONCURS IN RESULTS
CHAPEL, J.: CONCURS
A. JOHNSON, J.: CONCURS
LEWIS, J.: CONCURS

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Footnotes:

1. Rule 1.14(A)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006).
2. Matthews v. Price, 83 F.2d 328, 334 (10th Cir.1996).
3. McGraw v. State, 1970 OK CR 155, ¶ 8, 476 P.2d 370, 373.
4. 22 O.S.Supp.2006, § 1355A(D).
5. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Manufacture of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 852 - Child Endangerment
• Okla. Stat. tit. 47 § 11-801(B)(1) - Driving Under the Influence
• Okla. Stat. tit. 47 § 7-600 - Failure to Carry Owner's Security Verification
• Okla. Stat. tit. 47 § 6-101 - Operating a Vehicle While Driver's License is Suspended
• Okla. Stat. tit. 47 § 12-402 - Failure to Wear a Seatbelt
• Okla. Stat. tit. 47 § 14-113 - Operating a Vehicle Without Having Paid Taxes
• Okla. Stat. tit. 22 § 1355A(D) - Presumption of Indigency

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Matthews v. Price, 83 F.2d 328, 334 (10th Cir. 1996)
• McGraw v. State, 1970 OK CR 155, I 8, 476 P.2d 370, 373
• Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)