Bryan James Abner v The State Of Oklahoma

F-2017-1270

Filed: Apr. 18, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Bryan James Abner appealed his conviction for several crimes, including burglary and possession of stolen property. He was convicted and sentenced to a total of twenty years in prison, but all his sentences were ordered to run at the same time. Judge Kuehn dissented.

Decision

The order of the District Court of Cleveland County terminating Appellant from Drug Court and sentencing him in accordance with the plea agreement in Case Nos. DC-2015-33, CF-2012-1475, CF-2012-2011, CF-2014-44, CF-2014-495, CF-2014-1461 and CF-2016-236 should be, and is hereby, AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued forthwith upon the filing of this decision with the Clerk of this Court.

Issues

• Was there an abuse of discretion in terminating Appellant from the Drug Court program?
• Did the evidence support the trial court's finding that Appellant violated the conditions of the plea agreement or performance contract?
• Were the sanctions imposed on Appellant insufficient to gain his compliance in the Drug Court program?
• Did Appellant demonstrate that he had made positive progress in his rehabilitation and recovery?

Findings

• the court did not err in terminating Appellant from the Drug Court program
• evidence was sufficient to show Appellant violated the conditions of the plea agreement and performance contract
• the court's decision was not an abuse of discretion
• the order of the District Court is affirmed

F-2017-1270

Apr. 18, 2019

Bryan James Abner

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: The Appellant, Bryan James Abner, has appealed to this Court from an order of the District Court of Cleveland County, entered by the Honorable Leah Edwards, District Judge, terminating Appellant from drug court and sentencing him in accordance with the drug court contract in Case Nos. DC-2015-33, CF-2012-1475, CF-2012-2011, CF-2014-44, CF-2014-495, CF-2014-1461 and CF-2016-236. (12/8/17 Tr. 61-62; DC-2015-33 O.R. 99, 100). In Case No. CF-2012-1475, Appellant was convicted of Knowingly Concealing Stolen Property, and was sentenced to five years imprisonment. In Case No. CF-2012-2011, Appellant was convicted of Possession of Sawed-Off Shotgun/Rifle, and was sentenced to two years imprisonment. In Case No. CF-2014-44, Appellant was convicted of Attempting to Elude an Officer, and was sentenced to one year imprisonment. In Case No. CF-2014-495, Appellant was convicted of Count 1: Burglary in the Second Degree, and was sentenced to seven years imprisonment; and Count 2: Knowingly Concealing Stolen Property, and was sentenced to five years imprisonment. In Case No. CF-2014-1461, Appellant was convicted of Possession of Controlled Dangerous Substance, and was sentenced to ten years imprisonment. In Case No. CF-2016-236, Appellant was convicted of Burglary in the Second Degree, and was sentenced to seven years imprisonment. All sentences were ordered to run concurrently.

On May 13, 2015, Appellant was placed in the Drug Court Program pursuant to the terms of negotiated confessions/pleas and the Drug Court Performance Contract. In Case Nos. CF-2012-1245 and CF-2012-2011, Appellant confessed the allegations in the State’s motion to accelerate deferred judgment and sentencing. In Case Nos. CF-2014-44, CF-2014-495, and CF-2014-1461, Appellant entered pleas of guilty. If successful in Drug Court, Appellant’s judgments and sentencing would be deferred in all cases. If unsuccessful, Appellant would be convicted and sentenced in accordance with the Drug Court Contract.

On September 13, 2016, Appellant entered a plea of guilty in Case No. CF-2016-276 to Burglary in the Second Degree, and the case was included in the Drug Court proceedings. On August 11, 2017, the State filed in all six cases a motion to terminate Appellant from Drug Court and to sentence him in accordance with the plea agreement and the Drug Court Contract. The motion alleged Appellant failed to report new police contact and new law violation.

On December 8, 2017, the Drug Court termination hearing was held before Judge Edwards. After considering the evidence and hearing arguments, Judge Edwards terminated Appellant from Drug Court and sentenced him in accordance with the plea agreement and Drug Court Contract.

At the Drug Court termination hearing, the State first called Steven Boxford (Boxford), an officer with the Norman Police Department. Boxford testified that, on August 9, 2017, at 4:41 a.m., he pulled into the parking lot of a Motel 6 in Norman. Boxford approached a pickup with its running lights on and Appellant opened the door and leaned out. Appellant allowed Boxford to search his person and Boxford found a small baggie in one of Appellant’s pockets containing a white residue that field tested positive for methamphetamine. Based upon the circumstances, Boxford let Appellant go and referred charges to the District Attorney based upon the baggie.

The State’s next witness was Neil Hamilton (Hamilton), a Drug Court probation supervisor. Hamilton said that for the first six months, Appellant did well in Drug Court, but after that he did horribly. Hamilton testified that, starting in November of 2015, Appellant tested positive for methamphetamine a number of times. In January of 2016, burglary charges were filed against Appellant and rolled into the Drug Court case. Hamilton testified that Appellant also forged some community service; had his wife or girlfriend turn in a forged AA sheet; missed UAs; missed appointments; and had stalking charges filed on him by his wife. Hamilton testified that Appellant received a number of sanctions, including community service, then a little jail time, then a lot of jail time. Hamilton testified the Drug Court team had previously recommended termination, but Appellant was sent to IRF instead. Hamilton said that Appellant’s infant son was murdered while he was in IRF, and that Appellant was released in March of 2017. Hamilton said that after his release Appellant missed a UA in April. After Hamilton’s testimony, the State rested.

In defense, Appellant called Doug Richardson (Richardson), a therapist and counselor with The Virtue Center (formerly NAIC) who had worked with Appellant in the Drug Court program. Richardson testified that The Virtue Center would gladly welcome Appellant back for treatment, and that he shouldn’t be terminated for exhibiting symptoms of his addiction disorder. Richardson testified that IRF and the death of his son had caused Appellant to grow up a lot and he was finally ready to do some therapy. After Richardson’s testimony, the defense rested.

In closing, the State noted all of Appellant’s violations, including crimes he committed and crimes he was convicted for while in Drug Court. The State also noted Appellant had been sanctioned numerous times while in Drug Court and that those sanctions had not been sufficient to gain his compliance. Counsel for Appellant acknowledged that he was a drug addict and that he had committed numerous violations and received numerous sanctions. Counsel noted Richardson’s testimony that IRF and the death of his son had caused Appellant to mature and to be ready for success in treatment, such that he deserved another chance in Drug Court. Judge Edwards noted the compelling and heart-wrenching case and arguments made by Appellant’s counsel. Judge Edwards found, however, that Appellant had exhibited the same behavior while in Drug Court that he had exhibited before he pled in. Judge Edwards noted that Appellant was found with methamphetamine residue while he was participating in Drug Court, and that people don’t typically buy residue. Judge Edwards found that she was out of options. Judge Edwards terminated Appellant from Drug Court and sentenced him in accordance with the plea agreement and Drug Court Contract.

Appellant brings this appeal asserting one proposition of error.

I. THE TRIAL COURT ABUSED ITS DISCRETION IN TERMINATING APPELLANT FROM THE DRUG COURT PROGRAM.

ANALYSIS

The decision to revoke or terminate from Drug Court lies within the discretion of the Drug Court judge. Lewis v. State, 2009 OK CR 30, I 10, 220 P.3d 1140, 1143; see also Hagar U. State, 1999 OK CR 6 35, 990 P.2d 894. The drug court judge shall recognize relapses and restarts in the program and shall order progressively increasing sanctions, except when the offender’s conduct requires revocation from the program. 22 O.S.2011, § 471.7(E); see also Hagar, supra. 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. Id.

Appellant notes testimony, including that of his counselor, that he had matured and had made positive progress in his rehabilitation and recovery after his treatment in IRF and the death of his son. Appellant argues that, based upon those facts and all the facts and circumstances of this case, Judge Edwards should have viewed Appellant’s behavior as a relapse and should not have found that his conduct requires revocation from the program. Judge Edwards had evidence before her showing that months after the death of his son and his release from IRF, Appellant was caught in possession of methamphetamine residue and was charged with a crime based upon that incident. Judge Edwards also had evidence before her that Appellant had committed violations and crimes throughout his time in the Drug Court program and that he had received progressively increasing sanctions for those violations. This Court finds that there was more than sufficient evidence to show that Appellant violated the conditions of the plea agreement or performance contract; that disciplinary sanctions have been insufficient to gain his compliance; and that his conduct required revocation from the program. 22 O.S.2011, § 471.7(E); see also Hagar, supra. Judge Edwards decision cannot be considered an abuse of discretion. Lewis, supra; Hagar, supra.

DECISION

The order of the District Court of Cleveland County terminating Appellant from Drug Court and sentencing him in accordance with the plea agreement in Case Nos. DC-2015-33, CF-2012-1475, CF-2012-2011, CF-2014-44, CF-2014-495, CF-2014-1461 and CF-2016-236 should be, and is hereby, AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued forthwith upon the filing of this decision with the Clerk of this Court.

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Footnotes:

1. Okla. Stat. tit. 22 § 471.7(E)
2. Lewis v. State, 2009 OK CR 30, 220 P.3d 1140
3. Hagar v. State, 1999 OK CR 35, 990 P.2d 894
4. Okla. Stat. tit. 22 § 471.7(E)
5. Lewis v. State, 2009 OK CR 30
6. Hagar v. State, 1999 OK CR 35

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Knowingly Concealing Stolen Property
• Okla. Stat. tit. 21 § 1289.11 - Possession of Sawed-Off Shotgun/Rifle
• Okla. Stat. tit. 21 § 540 - Attempting to Elude an Officer
• Okla. Stat. tit. 21 § 1431 - Burglary in the Second Degree
• Okla. Stat. tit. 21 § 443 - Possession of Controlled Dangerous Substance
• Okla. Stat. tit. 22 § 471.7(E) (2011) - Drug Court Program

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:

• Lewis v. State, 2009 OK CR 30, I 10, 220 P.3d 1140, 1143
• Hagar v. State, 1999 OK CR 35, 990 P.2d 894