Jonas Alan Thornton v The State Of Oklahoma

F-2011-962

Filed: Feb. 27, 2014

Not for publication

Prevailing Party: Jonas Alan Thornton

Summary

Jonas Alan Thornton appealed his conviction for Assault with a Dangerous Weapon. The conviction and sentence were for ten years of imprisonment, with five years suspended. Judge Lumpkin dissented. The case started when Thornton was accused of firing a gun at a house. He had initially consulted Judge Adair about his legal situation but later hired a different attorney. However, Judge Adair became the judge in Thornton's trial. The appeals court found that Adair should not have presided over the case because he had previously acted as Thornton's attorney, which could affect his ability to be impartial. Because of this error, they decided to reverse Thornton's conviction and ordered a new trial. Other claims by Thornton were not addressed because the primary issue resulted in a new trial being mandated.

Decision

The Judgment and Sentence of the district court is REVERSED and the case REMANDED for new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was Judge Adair required to recuse himself from the case due to prior consultation with Thornton?
• did the trial court's refusal to consider Thornton's alibi defense constitute a violation of his constitutional right to present evidence?
• was Thornton denied effective assistance of counsel based on counsel's failure to present an alibi defense, request criminal history for witnesses, object to information presented at sentencing, and seek Judge Adair's recusal?
• should the judgment and sentence be corrected nunc pro tunc to reflect the specific crime for which Thornton was convicted?
• did the cumulative effect of errors deprive Thornton of a fair trial?

Findings

• the court erred in allowing Judge Adair to preside over the trial due to judicial bias
• Thornton's remaining claims were rendered moot by the reversal and remand for a new trial

F-2011-962

Feb. 27, 2014

Jonas Alan Thornton

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE A. JOHNSON, JUDGE:

Appellant Jonas Alan Thornton was tried and convicted in a non-jury trial for the crime of Assault with a Dangerous Weapon, in violation of 21 O.S.Supp.2006, § 645, in Okmulgee County District Court Case No. CF-2010-61, before the Honorable Kenneth E. Adair, District Judge. Judge Adair sentenced Thornton to ten years imprisonment with five years suspended.

BACKGROUND

The crime for which Thornton was tried and convicted arose from an incident that occurred in the early morning of January 1, 2010. In that incident, Thornton allegedly fired a handgun into a house occupied by his mother’s boyfriend Kenneth Morgan, the boyfriend’s brother Emmanuel Morgan, and Joseph Pope, a friend of the Morgans. After being arrested and released on bail, Thornton consulted with attorney Kenneth Adair. Although he met with attorney Adair, Thornton eventually hired attorney Carla Stinnett to represent him. Attorney Stinnett withdrew after the preliminary hearing, and Thornton then hired attorney Kenneth Butler. Sometime after the meeting with Thornton, attorney Adair was elected as District Judge for Okmulgee County. Judge Adair presided over Thornton’s non-jury bench trial and sentencing.

On July 11, 2013, having reviewed the affidavits included in support of Thornton’s claims in this appeal, this Court remanded the case to the district court for an evidentiary hearing on the following issues: (1) Judge Adair’s impartiality and failure to recuse himself from the case, and (2) Thornton’s claims that trial counsel was ineffective for failing to seek Judge Adair’s recusal, not presenting Thornton’s wife as an alibi witness, and not obtaining and presenting alibi-corroborating telephone records. The District Court of Okmulgee County, Judge Douglas Golden, held the required evidentiary hearing on August 30, 2013, and filed his Findings of Fact and Conclusions of Law with this Court on October 8, 2013. Thornton and the State filed their post-evidentiary hearing supplemental briefs with this Court on October 3rd and October 22nd respectively. With the evidentiary hearing and supplemental briefing complete, this appeal is ripe for decision.

Thornton raises the following issues: (1) whether Judge Adair should have presided over the case because Thornton disclosed personal and confidential information to him during a consultation meeting where Thornton attempted to retain Adair as counsel; (2) whether the trial court’s refusal to give full consideration to Thornton’s alibi defense as a sanction for an alleged discovery violation deprived him of his constitutional right to present evidence; (3) whether Thornton was denied effective assistance of counsel by counsel’s failure to: (a) present an alibi defense; (b) request that the State provide criminal history reports for its witnesses; (c) object to information presented at sentencing that Thornton did not meet his financial obligations; and (d) seek removal of Judge Adair; (4) whether the judgment and sentence should be corrected nunc pro tunc to reflect that Thornton was convicted of Assault with a Dangerous Weapon; and (5) whether the cumulative effect of errors deprived him of a fair trial. Because we reverse and remand for a new trial on the issue of Judge Adair presiding over Thornton’s bench trial, the remainder of Thornton’s claims are rendered moot. Consequently, we do not address them.

DISCUSSION

Thornton claims the trial judge, Kenneth Adair, should not have presided over the case because Judge Adair was biased against him. According to Thornton, the bias was the result of information Thornton disclosed to Adair when he attempted to hire Adair as his attorney before Adair was elected to the position of district court judge. Thornton contends that with Judge Adair sitting as judge and trier of fact in his case, he was denied a fair trial.

Rule 15 of the Rules for the District Courts of Oklahoma, Title 12, Ch. 2, App. (2001), establishes the procedure for disqualifying a judge, and failure to seek disqualification under the procedure prescribed by the rule waives the claim. Mitchell v. State, 2006 OK CR 20, I 84, 136 P.3d 671, 705. Thornton did not seek to disqualify Judge Adair under Rule 15. The claim is therefore waived. Nevertheless, while Thornton’s recusal claim is waived, his claim of judicial bias is not. See Mitchell, 2006 OK CR 20, I 87, 136 P.3d at 706 (while a defendant can waive his right to preclude a disqualified judge from hearing his case, that defendant does not thereby waive the right to have his trial conducted in a fair and impartial manner). Because the claim involves the fundamental constitutional due process right to an impartial tribunal, that aspect of the claim is reviewed for plain error. See Alexander v. State, 2002 OK CR 23, I 18, 48 P.3d 110, 114 (Appellant, in this case, never requested recusal, nor alleged any bias on the part of the District Court until he presented his case for appeal to this Court. Appellant’s failure to request recusal at the district court level waives the issue of judicial bias for purposes of appeal, restricting this Court’s review to plain error. As the issue here addresses Appellant’s fundamental right to an impartial tribunal, we will review for plain error.) (internal citation omitted).

To be entitled to relief for plain error, Thornton must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Hogan U. State, 2006 OK CR 19, q38, 139 P.3d 907, 923. If these elements are met, this Court will correct plain error only if the error ‘seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings’ or otherwise represents a ‘miscarriage of justice. Hogan, 2006 OK CR 19, 138, 139 P.3d at 923 (quoting Simpson v. State, 1994 OK CR 40, I 30, 876 P.2d 690, 700-701).

Title 20 O.S.2011, § 1401 provides that

A. No judge of any court shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested, or when he is related to any party to said cause within the fourth degree of consanguinity or affinity, or in which he has been of counsel for either side, or in which is called in question the validity of any judgment or proceeding in which he was of counsel or interested, or the validity of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties to said action entered of record. (Emphasis added).

The language of this statute is clear: a judge may not preside over any proceeding in which he has been of counsel for either side without the consent of the parties to said action entered of record. The language of this statute is not a recommended best practice; it is a mandatory directive. And, with its express requirement for on-the-record consent, the statute explicitly rules out any implied waiver of its provisions.

In this instance, the record of the evidentiary hearing shows that while there is some dispute over whether Thornton attempted to retain then-attorney Adair in either a criminal or civil action related to the shooting in this case, the fact remains that he sought Adair’s counsel in the matter, a matter that ultimately resulted in this criminal prosecution. In his testimony at the evidentiary hearing, Judge Adair admitted that he formed a limited attorney-client relationship with Thornton when Thornton consulted with him about Officer Stacy’s entry into Thornton’s home to question Thornton about his role in the shooting. Judge Adair testified that his recollection of the office encounter with Thornton was that Thornton sought representation in a possible civil suit against the City of Okmulgee Police Department for Officer Mike Stacy entering Thornton’s property without permission to investigate the shooting that Thornton was accused of committing. Thornton, however, testified as follows:

Q What did you tell Mr. Adair about this case?
A I told him everything that I had been told at that point. You know, that I was arrested and that the warrant had said Attempted Murder, and that Mr. Morgan was accusing me of shooting at his house. And I mentioned to him about Mike Stacy coming to my house and James Ables, and that I told them to leave and they wouldn’t. And just, you know, what I was being accused of. I mean that was all what I – that’s pretty much what I knew at the time.
Q Did you mention to Mr. Adair, while you were in his office, any bad blood that you had with any of the Morgans?
A Yes. I told him about an incident that happened about a year, a year-and-a-half before then. (Tr.Ev.Hrg. at 125-126).

During that same meeting, Thornton said Adair told him he had nothing to worry about and that there was no case, and that it would be thrown out (Tr.Ev.Hrg. at 126). Judge Adair conceded that it was in the realm of possibility that he might have told Thornton that he could file something to have the charges thrown out (Tr.Ev.Hrg. at 35). Thornton further testified that he could not afford to hire Adair, so he retained attorney Carla Stinnett who withdrew after the preliminary hearing. He then hired attorney Kenneth Butler who represented him through trial and sentencing.

By its plain language, Section 1401 not only disqualifies a judge who formally entered an appearance in a case and actively represented a party in a proceeding, but also disqualifies a judge who has been of counsel for either side. Thus, while then-attorney Adair may never have entered a formal appearance in Thornton’s criminal case and may have done nothing more than provide some preliminary counsel in the matter, he was obviously of counsel to Thornton, albeit in a limited capacity and for a very brief time. Accordingly, under Section 1401, Judge Adair was prohibited from presiding over Thornton’s case.

Adair’s failure to disqualify himself, therefore, was error. Nevertheless, the error does not necessarily require automatic reversal. Under plain error review, Thornton must also prove that the error is plain or obvious and that it affected his substantial rights, meaning the error affected the outcome of the proceeding. In this instance, while it may not have been plain or obvious to Judge Adair at the time of trial that the defendant before him was someone he had previously counseled on the matter being tried before him, the facts developed at the evidentiary hearing show that Thornton and Adair had actually established an attorney-client relationship, albeit a limited one in this matter. Under Section 1401, therefore, Judge Adair was plainly barred from presiding over the trial as previously having been of counsel to Thornton. Under plain error review, however, a showing of plain or obvious error is not enough to obtain relief. To secure relief, Thornton must also show that the error affected his substantial rights to the extent that it affected the outcome of the proceeding. Or, in other words, Thornton must show that he was harmed or prejudiced by the error.

By its mandatory nature, 20 O.S.2011, § 1401 implicitly presumes that a judge who has acted of counsel for either party in a dispute before him cannot be impartial and is therefore not qualified to preside over the case. Consequently, when a judge who has acted of counsel for one of the parties to the case in a matter substantially the same as that being tried before the judge, prejudice to the parties is presumed. This is especially so in a case such as this where the judge not only presided over the trial process, but also performed the jury function by sitting as the trier of fact. Under these circumstances, the presumed prejudice affected the entire framework of the trial. It therefore requires reversal regardless of the strength of the evidence of guilt.

Accordingly, Thornton’s conviction and sentence must be reversed and the case remanded for a new trial. Because we reverse and remand for a new trial, Thornton’s remaining claims are moot.

DECISION

The Judgment and Sentence of the district court is REVERSED and the case REMANDED for new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 645
2. Mitchell v. State, 2006 OK CR 20
3. Alexander v. State, 2002 OK CR 23
4. Hogan v. State, 2006 OK CR 19
5. Title 20 O.S.2011, § 1401
6. Pinchback v. Pinchback, 341 S.W.2d 549 (Tex.Civ.App. 1961)
7. Dawkins v. State, 2011 OK CR 1
8. Bland v. State, 2000 OK CR 11
9. Dacey v. Connecticut Bar Association, 441 A.2d 49 (Conn. 1981)
10. United States v. Marcus, 560 U.S. 258 (2010)
11. Tumey v. Ohio, 273 U.S. 510 (1927)
12. Ellis v. Emhart Mfg. Co., 191 A.2d 546 (1963)
13. Mooney v. State, 1999 OK CR 34
14. Hooper v. State, 1997 OK CR 64
15. Brumfield v. State, 2007 OK CR 10
16. Bryan v. State, 1997 OK CR 15
17. Long v. State, 2003 OK CR 14

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 645 (2006) - Assault with a Dangerous Weapon
• Okla. Stat. tit. 20 § 1401 (2011) - Disqualification of judges
• Okla. Stat. tit. 12 Ch. 2 App. Rule 15 (2001) - Disqualification of judges
• Okla. Stat. tit. 5 Ch. 1 App. Rule 2.11 (2011) - Oklahoma Code of Judicial Conduct

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:

• Mitchell v. State, 2006 OK CR 20, I 84, 136 P.3d 671, 705.
• Alexander v. State, 2002 OK CR 23, I 18, 48 P.3d 110, 114.
• Hogan U. State, 2006 OK CR 19, q38, 139 P.3d 907, 923.
• Simpson v. State, 1994 OK CR 40, I 30, 876 P.2d 690, 700-701.
• Dawkins v. State, 2011 OK CR 1, 1 19, 252 P.3d 214, 220.
• Bland v. State, 2000 OK CR 11, I 91, 4 P.3d 702, 727.
• Dacey v. Connecticut Bar Association, 441 A.2d 49, (Conn. 1981).
• Pinchback U. Pinchback, 341 S.W.2d 549, 553 (Tex.Civ.App. 1961).
• Brumfield v. State, 2007 OK CR 10, 19 29-30, 155 P.3d 826, 837-38.
• Bryan v. State, 1997 OK CR 15, 11 27-29, 935 P.2d 338, 354-55.
• Long v. State, 2003 OK CR 14, I 6, 74 P.3d 105, 107.
• United States v. Marcus, 560 U.S. 258, 263, 130 S.Ct. 2159, 2164-2165, 176 L.Ed.2d 1012 (2010).
• Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed.2d 749 (1927).