Heath Saxon Ford v The State Of Oklahoma

F 2017-0031

Filed: Jan. 11, 2018

Not for publication

Prevailing Party: Heath Saxon Ford

Summary

Heath Saxon Ford appealed his conviction for multiple charges. Conviction and sentence were for twelve years in prison after being terminated from a Drug Court program. Judge Hudson wrote the opinion, and Judge Lumpkin, Judge Lewis, Judge Kuehn, and Judge Rowland all agreed with the decision but in different ways.

Decision

The termination of Appellant from the McCurtain County Drug Court Program in McCurtain County District Court Case No. No. CF-2014-085 (Drug Court Case No. DC-2014-28) is REVERSED and REMANDED for reinstatement into a Drug Court program. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there an abuse of discretion by the trial court in allowing the introduction of hearsay evidence without an exception to the hearsay rule?
• Did the trial court err in finding that Appellant violated the terms of his Drug Court contract based solely on inadmissible evidence?
• Was there sufficient evidence introduced to show that Appellant committed an act that violated his performance contract?
• Did the termination from Drug Court constitute an abuse of discretion under the circumstances of the case?
• Was the termination from Drug Court justified despite the reliance on hearsay evidence?
• Did the allegations of impropriety in the Drug Court's operation warrant concern regarding the termination decision?

Findings

• the court erred in allowing the introduction of impermissible hearsay evidence
• the court abused its discretion in finding that Appellant violated the terms of his Drug Court contract based solely on inadmissible evidence
• the evidence was not sufficient to show that Appellant committed an act that violated his performance contract
• the termination from Drug Court was an abuse of discretion
• the order of termination from the Drug Court Program is reversed and remanded for reinstatement into a Drug Court program

F 2017-0031

Jan. 11, 2018

Heath Saxon Ford

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

HEATH SAXON FORD, Appellant,
v.
THE STATE OF OKLAHOMA, Appellee.

Appellant, Heath Saxon Ford, was charged in the District Court of McCurtain County, Case No. CF-2014-085, on March 31, 2014, with Count 1 – Driving a Motor Vehicle While Under the Influence of Alcohol, a felony; Count 2 – Unauthorized Use of a Vehicle, a felony; Count 3 – Transporting Open Bottle or Container of Liquor, a misdemeanor; Count 4 – Transporting Opened Container of Beer, a misdemeanor; Count 5 – Threaten to Perform Act of Violence, a misdemeanor; and Count 6 – Driving with License Cancelled/Suspended/Revoked, a misdemeanor. These were charged after former conviction of two felonies. Appellant entered a plea of guilty to Counts 1 and 2; the remaining counts were dismissed. Appellant entered the McCurtain County Special Courts (Drug Court) Program. He agreed that if he failed, he would be sentenced to twelve years in the Department of Corrections; but if he succeeded, the remaining charges would be dismissed.

The State filed an application to terminate Appellant from Drug Court on June 1, 2016, alleging Appellant had an adulterated drug test on May 11, 2016. Following a hearing on the State’s application on October 13, 2016, the Honorable Walter Hamilton, Special Judge, found by a preponderance of the evidence that Appellant violated the terms of his performance contract as alleged by the State. Appellant was sentenced to twelve years imprisonment, with credit for time served. Appellant appeals from his termination from Drug Court.

On appeal, Appellant argues that the trial court abused its discretion when it allowed the introduction of impermissible hearsay evidence without an exception to the hearsay rule and found that Appellant violated the terms of his Drug Court contract based solely on the inadmissible evidence. Appellant also argues that insufficient evidence was introduced to show that he committed an act that was in violation of his performance contract and that the termination from Drug Court was an abuse of discretion under the facts of this case.

At the revocation hearing, if the offender is found to have violated the conditions of the plea agreement or performance contract and disciplinary sanctions have been insufficient to gain compliance, the offender shall be revoked from the program and sentenced for the offense as provided in the plea agreement. 22 O.S.2011, 471.7(E). The Oklahoma Drug Court Act, 22 O.S.2011, $471.7(E), requires the Drug Court judge to recognize relapses and restarts in the program by ordering progressively increasing sanctions or providing incentives rather than removing the offender from the program when a relapse occurs except when the offender’s conduct requires revocation from the program. The decision to revoke or terminate from Drug Court lies within the discretion of the Drug Court judge. Hagar v. State, 1999 OK CR 35, [11, 990 P.2d 894.

In this case, Donna Coffey, the Drug Court Coordinator and the State’s sole witness, testified about the contents of a lab report that she did not prepare. She did not conduct the test and the test was not introduced. Appellant argues that this evidence, supporting the only alleged violation, was based entirely on hearsay without any exception and not bearing a sufficient indicia of reliability. Appellant argues that when the trial court found the existence of this violation and terminated Appellant, it abused its discretion. We agree.

Hearsay evidence is admissible in termination proceedings. The trial court may rely upon an out-of-court statement that bears substantial guarantees of trustworthiness without violating a defendant’s right of confrontation. Hampton v. State, 2009 OK CR 4, IT 21, 203 P.3d 179. However, termination from Drug Court cannot be based entirely upon hearsay evidence. Id. In this case, it was. Further, the State has not shown that this evidence bears a sufficient indicia of reliability considering Appellant provided two negative tests shortly after the diluted test. This Court also has grave concerns over the allegations contained in this record which paint a picture relating to the operation of this Drug Court.

The record reflects that the Drug Court Coordinator is related to the owner of the rehabilitation centers which are run by the Drug Court Coordinator’s sons, and that another family member owns property on which the Drug Court participants are required to complete service requirements for which they are not paid. The allegations include impropriety, or at the very least, the appearance of impropriety, and possible graft and corruption.

We, therefore, find it necessary to reverse the order of the District Court terminating Appellant from the McCurtain County Drug Court Program and remanding the matter to the District Court to reinstate Appellant into a Drug Court program, preferably in another county.

DECISION

The termination of Appellant from the McCurtain County Drug Court Program in McCurtain County District Court Case No. CF-2014-085 (Drug Court Case No. DC-2014-28) is REVERSED and REMANDED for reinstatement into a Drug Court program. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF MCCURTAIN COUNTY
THE HONORABLE WALTER HAMILTON, SPECIAL JUDGE

APPEARANCES ON APPEAL
DRUG COURT TERMINATION HEARING

TRAVIS S. CROCKER
ATTORNEY AT LAW
117 N. CENTRAL AVE.
P.O. BOX 926
IDABEL, OKLAHOMA 74745
COUNSEL FOR DEFENDANT

SARAH MACNIVEN
APPELLATE DEFENSE COUNSEL
NORMAN, OKLAHOMA 73070
COUNSEL FOR APPELLANT

SCOTT F. DOERING
ASSISTANT DISTRICT ATTORNEY
108 N. CENTRAL AVE., SUITE 1
IDABEL, OKLAHOMA 74745
COUNSEL FOR THE STATE

MICHAEL J. HUNTER
ATTORNEY GENERAL OF OKLAHOMA
SHERI M. JOHNSON
ASSISTANT ATTORNEY GENERAL
313 N.E. 21st STREET
OKLAHOMA CITY, OKLAHOMA 73105
COUNSEL FOR THE STATE

OPINION BY: HUDSON, J.
LUMPKIN, P.J.: CONCUR IN RESULTS
LEWIS, V.P.J.: CONCUR IN RESULTS
KUEHN, J.: CONCUR
ROWLAND, J.: CONCUR

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Footnotes:

1. 22 O.S.2011, § 471.7(E).
2. Hagar v. State, 1999 OK CR 35, ¶ 11, 990 P.2d 894.
3. Hampton v. State, 2009 OK CR 4, ¶ 21, 203 P.3d 179.
4. The record reflects that the Drug Court Coordinator is related to the owner of the rehabilitation centers which are run by the Drug Court Coordinator's sons, and that another family member owns property on which the Drug Court participants are required to complete service requirements for which they are not paid.

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 471.7(E) - Oklahoma Drug Court Act
• Okla. Stat. tit. 21 § 701.8 (2011) - Criminal Code: Sentencing
• Okla. Stat. tit. 22 § 222 - Criminal Procedure: Appeals
• Okla. Stat. tit. 22 § 1181 - Criminal Procedure: Appeals
• Okla. Stat. tit. 22 § 271 - Criminal Procedure: Appeals
• Okla. Stat. tit. 22 § 901 - Criminal Procedure: Appeals

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:

• Hagar v. State, 1999 OK CR 35, I 11, 990 P.2d 894
• Hampton v. State, 2009 OK CR 4, I 21, 203 P.3d 179