Tommy Lynn Berry v The State Of Oklahoma

F-2018-552

Filed: Sep. 19, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Tommy Lynn Berry appealed his conviction for drug-related offenses. Conviction and sentence were upheld, and Berry's termination from the Drug Court was affirmed. Judge Hudson dissented.

Decision

Appellant's Termination from Drug Court in Carter County Case Nos. CF-2014-322, CF-2014-646A, and CF-2015-71 is 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 upon the delivery and filing of this decision.

Issues

• Was there plain error in the acceptance of Mr. Berry's involuntary stipulation to the allegations in the State's Application to Terminate his Drug Court participation?
• Did the trial court abuse its discretion in terminating Mr. Berry from the Drug Court program without first imposing progressively increasing disciplinary sanctions?
• Was Mr. Berry denied his right to effective assistance of counsel in violation of the 6th and 14th Amendments to the United States Constitution and Article II, §§ 7, 9, and 20 of the Oklahoma Constitution?

Findings

• the court did not err in accepting Berry's stipulation to the allegations in the State's Application to Terminate
• the trial court did not abuse its discretion in terminating Berry from the Drug Court program
• Berry's claim of ineffective assistance of counsel is without merit

F-2018-552

Sep. 19, 2019

Tommy Lynn Berry

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: On April 23, 2015, Appellant Berry, represented by counsel, entered a guilty plea to one count of Possession of Controlled Dangerous Substance (CDS) each in Carter County Case Nos. CF-2014-332 and CF-2014-646A. In Carter County Case No. CF-2015-71 he entered a guilty plea to one count of Possession of CDS with Intent to Distribute. Offenses in all of the cases were charged after former conviction of two or more felonies. Sentencing was deferred pending completion of Drug Court.1

1 If Berry failed to successfully complete the Drug Court Program, he was to be sentenced to twenty (20) years, in each case, for each offense, the sentences to be served concurrently.

On August 5, 2016, the State filed a Motion to Terminate Berry’s Drug Court participation, alleging that he committed the new offenses of Possession of a CDS with intent to Distribute (two counts) as charged in Carter County Case No. CF-2016-447, and that he failed to comply with the terms and conditions of the Drug Court contract. On December 1, 2016, at the conclusion of the hearing on the State’s application, the Honorable Thomas K. Baldwin, Associate District Judge, terminated Berry’s Drug Court participation and sentenced him as specified in his plea agreement. From this judgment and sentence, Berry appeals, raising the following propositions of error:

I. Plain error occurred in the district court’s acceptance of Mr. Berry’s involuntary stipulation to the allegations contained in the State’s Application to Terminate;
II. The trial court abused its discretion in termination (sic) Mr. Berry from the Drug Court program without first imposing progressively increasing disciplinary sanctions and without determining on the record whether such disciplinary sanctions were adequate; and
III. Mr. Berry was denied his right to the effective assistance of counsel, in violation of the 6th and 14th Amendments to the United State Constitution and Article II, §§ 7, 9, and 20 of the Oklahoma Constitution.

Berry’s termination from Drug Court is AFFIRMED.

2 Berry alleges at Proposition I that his stipulation to the State’s Application to Terminate his Drug Court participation was not knowing and voluntary, requiring reversal of the trial court’s ruling and Berry’s reinstatement as a Drug Court participant. Berry did not object to the trial court’s acceptance of his stipulation, and we review his claim for plain error only. Simpson U. State, 1994 OK CR 40 IT 2, 876 P.2d 690, 693. To prevail on a plain error claim, Berry must show an actual error, which is plain or obvious, that affects a substantial right. Bench v. State, 2018 OK CR 31, I 22, 431 P.3d 929, 945. Berry contends that he lacked the circumstantial knowledge to make a knowing and voluntary stipulation, and the lower court committed plain error by accepting the stipulation. Berry cites no controlling authority, and we find none, requiring that a stipulation to a Drug Court termination application meet the stringent knowing and voluntary criteria established by the U.S. Supreme Court and this Court governing the acceptance of a guilty plea. Fields U. State, 1996 OK CR 35, I 28, 923 P.2d 624, 629; Boykin v. Alabama, 395 U.S. 238, 244 (1969). This standard has never been extended to stipulations at Drug Court termination hearings, and we refuse to do so now. The appeal record in this matter establishes quite clearly that Berry was aware of the consequences of stipulating to the State’s Drug Court termination application. The record also reveals that the stipulation was made in exchange for dismissal of the offenses charged in Carter County Case No. CF-2016-447.2 We find no error here.

At Proposition II Berry argues the lower court abused its discretion by terminating him from the program rather than imposing a graduated sanction. The decision to revoke or terminate a Drug Court defendant is within the trial judge’s discretion. Lewis v. State, 2009 OK CR 30, I 10, 220 P.3d 1140, 1143. This Court reviews the lower court’s decision for an abuse of that discretion. To prevail on this claim, Berry must prove that the lower court came to a clearly erroneous conclusion one that is clearly against the logic and effects of the facts presented. State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194. Berry cites to the language in 22 O.S.2011 § 471 (E) which states [T]he judge shall accomplish monitoring and offender accountability 2 Those charges were dismissed on December 8, 2016, seven days after Berry’s Drug Court termination hearing.

by ordering progressively increasing sanctions or providing incentives, rather than removing the offender from the program when relapse occurs, except when the offender’s conduct requires revocation from the program. If found to be in violation of the 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. However, the statute also specifies that [n]othing in this provision shall be construed to limit the authority of the judge to remove an offender from the program. 22 O.S.2011 § 471.7(G). Berry was admitted to the Drug Court program after being charged with multiple drug offenses, all charged after former conviction of two or more felonies. Despite his otherwise unblemished Drug Court participation, Berry violated his Drug Court contract by possessing, with intent to distribute, controlled dangerous substances. Under these facts and circumstances, we cannot find that Judge Baldwin abused his discretion by terminating Berry’s Drug Court participation.

Berry’s third proposition alleges that he was provided ineffective assistance of counsel. This Court reviews claims of ineffective assistance of counsel de novo. Hansen U. State, 2009 OK CR 13, 9 35, 206 P.3d 1020, 1031. Claims of ineffective assistance of counsel are reviewed under the standard set forth in Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Smith U. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 765, 145 L.Ed.2d 756 (2000) ([Petitioner] must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel.). A defendant must show both (1) deficient performance, by demonstrating that counsel’s conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 2064-66. And we recognize that [a] court considering a claim of ineffective assistance of counsel must apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range of reasonable professional assistance. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (quoting Strickland U. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065). The evidence in this appeal record supports a finding that Berry stipulated to the Drug Court termination application in exchange for the State’s dismissal of the new drug charges filed in Carter County Case No. CF-2016-447. To that extent, his stipulation was part of an agreement negotiated by counsel to avoid possible convictions and further sentencing as a result of the new charges. There is nothing in this record supporting a finding that had Berry proceeded with the hearing that he would not have been terminated from Drug Court. Berry has presented no evidence that counsel was ineffective or that the outcome in his case would have been different but for counsel’s alleged ineffective assistance. We find no error warranting relief in this matter. Berry has failed to establish that counsel’s performance was deficient or objectively unreasonable, and he is unable to show any resulting prejudice. Strickland V. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064. Berry’s ineffective assistance of counsel claim is without merit.

DECISION

Appellant’s Termination from Drug Court in Carter County Case Nos. CF-2014-322, CF-2014-646A, and CF-2015-71 is 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 upon the delivery and filing of this decision.

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Footnotes:

1. If Berry failed to successfully complete the Drug Court Program, he was to be sentenced to twenty (20) years, in each case, for each offense, the sentences to be served concurrently.
2. Those charges were dismissed on December 8, 2016, seven days after Berry's Drug Court termination hearing.
3. 22 O.S.2011 § 471 (E)
4. 22 O.S.2011 § 471.7(G)
5. Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 2064-66.
6. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064.

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 471 (2011) - Drug Court Monitoring and Accountability
• Okla. Stat. tit. 22 § 471.7(G) (2011) - Authority of Judge in Drug Court

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:

• Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693.
• Bench v. State, 2018 OK CR 31, ¶ 22, 431 P.3d 929, 945.
• Fields v. State, 1996 OK CR 35, ¶ 28, 923 P.2d 624, 629.
• Boykin v. Alabama, 395 U.S. 238, 244 (1969).
• Lewis v. State, 2009 OK CR 30, ¶ 10, 220 P.3d 1140, 1143.
• State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192, 1194.
• Hansen v. State, 2009 OK CR 13, ¶ 35, 206 P.3d 1020, 1031.
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
• Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 765, 145 L.Ed.2d 756 (2000).
• Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011).