Spencer Joe Cuccaro v The State Of Oklahoma

F-2018-1087

Filed: Dec. 19, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Spencer Joe Cuccaro appealed his conviction for drug-related charges. Conviction and sentence affirmed. Judge Kuehn dissented.

Decision

The order of the District Court of Kay County terminating Appellant from Drug Court in Case Nos. CF-2016-561, CF-2011-74, and CF-2008-353 should be, and is hereby, AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2019), the MANDATE is ORDERED issued forthwith upon the filing of this decision with the Clerk of this Court.

Issues

• Was there coercion affecting the voluntariness of Appellant's pleas into the Drug Court program?
• Did the trial court fail to follow mandatory Drug Court procedures in terminating Appellant?
• Did the trial court abuse its discretion in terminating Appellant from the Drug Court program?
• Was Appellant's sentence excessive based on the facts of the case?

Findings

• the court erred regarding Appellant's ability to withdraw his pleas of no contest as it was not a proper subject of this appeal
• the court erred in considering the failure to follow mandatory Drug Court procedures as it was not a proper subject of this appeal
• the trial court did not abuse its discretion in terminating Appellant from the Drug Court program
• the court erred in addressing Appellant's excessive sentence claims as they were not a proper subject of this appeal

F-2018-1087

Dec. 19, 2019

Spencer Joe Cuccaro

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN

ROWLAND, JUDGE: Appellant, Spencer Joe Cuccaro, appeals to this Court from an order of the District Court of Kay County, entered by the Honorable David R. Bandy, Associate District Judge, terminating Appellant from Drug Court in Case Nos. CF-2016-561, CF-2011-74 and CF-2008-353.

On June 22, 2017, Appellant was placed in the Kay County Drug Court program. In Case No. CF-2016-561, Appellant entered a plea of no contest to Count 1 – Possession of Controlled Dangerous Substance, after former conviction of two or more felonies; Count 2 – Driving With License Cancelled/Suspended/Revoked, misdemeanor; Count 3 – Unlawful Possession of Drug Paraphernalia, misdemeanor; and Count 4 – Failure to Maintain Insurance or Security, misdemeanor. Appellant’s plea was pursuant to an agreement that if Appellant was successful in Drug Court he would be sentenced to a term of life, with the sentence suspended; but if unsuccessful in Drug Court he would be sentenced to a term of life, with thirty-five years to serve and the balance suspended.

In Case Nos. CF-2011-74 and CF-2008-353, Appellant stipulated to an application to revoke alleging he violated probation by committing the new crimes in Case No. CF-2016-561. Appellant’s stipulations were pursuant to agreements that if Appellant was successful in Drug Court his sentences would remain suspended; but if unsuccessful in Drug Court his suspended sentences would be revoked.

On February 15, 2018, the State filed in all three cases, a Petition to Remove Defendant From Drug Court alleging he failed to comply with rules and failed to progress in Drug Court because Appellant: (a) committed the new crimes of Count 1 – Trafficking in Illegal Drugs, and Count 2 – Unlawful Use of a Police Radio, as charged in Osage County District Court Case No. CF-2018-40; (b) committed the new crime of Possession of Controlled Dangerous Substance (Methamphetamine), misdemeanor, as charged in Kay County District Court Case No. CM-2017-546; (c) is not current with his Bridgeway requirements (counseling meetings) and is behind fifteen meetings; and (d) owes $130.00 in Drug Court fees. On August 3, 2018, the State filed in all three cases an Amended Petition to Remove Defendant From Drug Court adding an allegation that Appellant (e) committed the new crime Possession of a Firearm After Felony Conviction, after former conviction of two or more felonies, as charged in Osage County District Court Case No. CF-2017-499.

On August 10, 2018, the Drug Court termination hearing was held before Judge Bandy. The State first called Don Barnett (Barnett), a deputy with the Osage County Sheriff’s Office. Barnett testified that late at night on January 31, 2018, or very early in the morning of February 1, 2018, he stopped a vehicle in which Appellant was riding in the front passenger seat. Barnett called a K-9 unit and the drug dog hit on the car. In the passenger seat where Appellant had been sitting, Barnett found an Altoids tin with small Ziplock baggies inside. The baggies contained a white crystal-like substance that appeared to be methamphetamine. Barnett arrested Appellant, took him to jail, and released him to the booking staff. Shortly thereafter, Barnett was called back to the booking area because Appellant had tried to hide another Ziplock baggie containing what appeared to be methamphetamine. The substance in that baggie field tested positive for methamphetamine. Barnett testified the total amount of methamphetamine in the baggies was 24 grams.

The State also called Ross Mahan (Mahan), a corporal with the Sheriff’s Office who had booked Appellant into the Osage County Jail. Mahan said he patted Appellant down and took him to the room where he changed clothes. Mahan testified Appellant walked into another room, reached into the front of his pants, took out a plastic baggie, and placed the baggie under a stack of jumpsuits. Mahan reached into the stack of jumpsuits and pulled out the baggie. When he did, Appellant asked Mahan if he could help Appellant out. Mahan said the baggie contained a white crystal-like substance, and he gave the baggie to Barnett.

The State’s final witness was Carmon Roquemore (Roquemore), the Kay County Drug Court Coordinator. Roquemore testified Appellant was not in compliance with his Bridgeway requirements because he was eight meetings behind. Roquemore also testified Appellant was $30.00 behind in his payments to Drug Court. After Roquemore’s testimony, the State rested. Appellant did not call any witnesses.

After hearing arguments, Judge Bandy found that, based on the testimony of officers in the Osage County case and the testimony of Roquemore, he was going to terminate Appellant from Drug Court. Judge Bandy sentenced Appellant in accordance with his plea agreement and Drug Court contract.

Appellant appeals asserting four propositions of error:

I. APPELLANT SHOULD BE ALLOWED TO WITHDRAW HIS PLEAS OF NO CONTEST INTO THE DRUG COURT PROGRAM BECAUSE THE PLEAS WERE ENTERED AS A RESULT OF COERCION, AND WERE THEREFORE NOT KNOWING AND VOLUNTARY;
II. THE TRIAL COURT’S FAILURE TO FOLLOW THE MANDATORY DRUG COURT PROCEDURES, DESIGNED TO ENSURE THE SUCCESS OF THOSE ENTERING THE PROGRAM, REQUIRES THAT THE COURT’S ORDER TERMINATING APPELLANT FROM DRUG COURT SHOULD BE REVERSED;
III. THE TRIAL COURT ABUSED ITS DISCRETION IN TERMINATING APPELLANT FROM THE DRUG COURT PROGRAM; AND
IV. APPELLANT’S DRUG COURT TERMINATION AND SUBSEQUENT SENTENCE ARE EXCESSIVE BASED ON THE FACTS OF THIS CASE.

ANALYSIS

Appellant’s Proposition I is not a proper subject of this appeal. An appeal from termination from Drug Court is the same procedure as an appeal from acceleration of deferred judgment and sentencing. Rule 1.2(D)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019); see Hagar v. State, 1999 OK CR 35, I 12, 990 P.2d 894, 898. The better procedure, where a defendant desires to exercise both that right of certiorari appeal from a conviction entered on a plea of guilty or nolo contendere as well as that right of direct appeal from a final order accelerating deferred sentencing or terminating from drug court, is to file a certiorari appeal from the order denying a motion to withdraw plea and a separate appeal from the order of acceleration/termination. Rule 1.2(D)(5)(c), (6)(a), Rules, supra; see Hausle U. State, 2017 OK CR 5, I 5, 394 P.3d 1278, 1280.

The scope of review in an acceleration/termination appeal will be limited to the validity of the order. Rule 1.2(D)(5)(b), (6)(a), Rules, supra. Appellant has filed a certiorari appeal in this Court from the District Court’s denial of his motion to withdraw plea, Cuccaro V. State, Case No. C-2018-1018. His arguments in Proposition I will be addressed in the certiorari appeal.

In Proposition II, Appellant is attempting to challenge his entry into the Drug Court Program. He is not challenging the validity of the order terminating him from Drug Court. Rule 1.2(D)(5)(b), (6)(a), Rules, supra (the scope of review in a termination appeal is limited to the validity of the order). Therefore, Appellant’s Proposition II is not a proper subject of this appeal.

In Proposition III, Appellant contends that Judge Bandy abused his discretion by terminating him from Drug Court. The decision to revoke or terminate a Drug Court defendant is within the trial judge’s discretion and we review that decision for abuse of discretion. Lewis U. State, 2009 OK CR 30, II 5, 10, 220 P.3d 1140, 1142, 1143; Hagar, 1999 OK CR 35, I 11, 990 P.2d at 898. Violations of the terms of the plea agreement or performance contract need only be shown by a preponderance of the evidence. Hagar, 1999 OK CR 35 at I 11, 990 P.2d at 898. Proof of a violation of the terms of the plea agreement or performance contract is sufficient if any rational trier of fact could have found the essential elements of the alleged violation by a preponderance of the evidence. Hogan v. State, 2006 OK CR 19, I 21, 139 P.3d 907, 919 (all sufficiency of the evidence claims are reviewed under the standard established in Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04).

Judge Bandy heard evidence presented that, during a traffic stop, two baggies of methamphetamine were found in the seat of a car where Appellant had just been sitting. Judge Bandy also heard evidence from two officers that, while being booked into jail, Appellant pulled a baggie of methamphetamine out of his pants and tried to hide it. When caught doing it, Appellant asked the officer to help him out. Judge Bandy was not irrational, based on the testimony of officers in the Osage County case, in finding by a preponderance of the evidence that Appellant possessed methamphetamine in trafficking quantities as charged in Osage County District Court Case No. CF-2018-40. Judge Bandy was also not irrational in finding from Roquemore’s unrefuted testimony that Appellant violated his plea agreement or performance contract by not being current with either his Bridgeway requirements or his Drug Court fees. Judge Bandy’s decision to terminate Appellant from Drug Court is clearly not an abuse of discretion. Lewis, supra; Hagar, supra.

Appellant’s excessive sentence claims in Proposition IV are also not a proper subject of this appeal. Excessive sentence claims must be raised by motion to withdraw plea in the District Court and by certiorari appeal to this Court, and are not proper for consideration within the context of a termination appeal. See Whitaker U. State, 2015 OK CR 1, I 10, 341 P.3d 87, 90. Appellant’s excessive sentence claims should be raised and addressed in the certiorari appeal Appellant has filed in this Court, Cuccaro U. State, Case No. C-2018-1018.

DECISION

The order of the District Court of Kay County terminating Appellant from Drug Court in Case Nos. CF-2016-561, CF-2011-74, and CF-2008-353 should be, and is hereby, AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 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. Rule 1.2(D)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019); see Hagar v. State, 1999 OK CR 35, I 12, 990 P.2d 894, 898.
2. Rule 1.2(D)(5)(c), (6)(a), Rules, supra; see Hausle U. State, 2017 OK CR 5, I 5, 394 P.3d 1278, 1280.
3. Rule 1.2(D)(5)(b), (6)(a), Rules, supra.
4. Lewis U. State, 2009 OK CR 30, II 5, 10, 220 P.3d 1140, 1142, 1143; Hagar, 1999 OK CR 35, I 11, 990 P.2d at 898.
5. Hagar, 1999 OK CR 35 at I 11, 990 P.2d at 898.
6. Hogan v. State, 2006 OK CR 19, I 21, 139 P.3d 907, 919 (all sufficiency of the evidence claims are reviewed under the standard established in Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04).
7. Whitaker U. State, 2015 OK CR 1, I 10, 341 P.3d 87, 90.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 211 (2011) - Possession of Controlled Dangerous Substance
• Okla. Stat. tit. 47 § 6-303 (2011) - Driving with License Cancelled/Suspended/ Revoked
• Okla. Stat. tit. 63 § 2-405 (2011) - Unlawful Possession of Drug Paraphernalia
• Okla. Stat. tit. 47 § 7-600 (2011) - Failure to Maintain Insurance or Security
• Okla. Stat. tit. 21 § 1083 (2011) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 21 § 1272 (2011) - Unlawful Use of a Police Radio
• Okla. Stat. tit. 63 § 2-1012 (2011) - Possession of Controlled Dangerous Substance (Methamphetamine)
• Okla. Stat. tit. 21 § 1283 (2011) - Possession of a Firearm After Felony Conviction
• Okla. Stat. tit. 22 § 992 (2011) - Rules of Appellate Procedure
• Okla. Stat. tit. 22 § 980 (2011) - Acceleration of Sentences
• Okla. Stat. tit. 22 § 1073 (2011) - Withdrawal of Pleas

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
• Hagar v. State, 1999 OK CR 35, I 12, 990 P.2d 894, 898
• Hausle v. State, 2017 OK CR 5, I 5, 394 P.3d 1278, 1280
• Lewis v. State, 2009 OK CR 30, II 5, 10, 220 P.3d 1140, 1142, 1143
• Hogan v. State, 2006 OK CR 19, I 21, 139 P.3d 907, 919
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
• Whitaker v. State, 2015 OK CR 1, I 10, 341 P.3d 87, 90