Carl David Wagnon v The State Of Oklahoma
F-2018-84
Filed: Aug. 29, 2019
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Carl David Wagnon appealed his conviction for Driving a Motor Vehicle While Under the Influence of Alcohol, a felony after two or more felony convictions. His conviction and sentence were twenty years in prison. Judge Hudson dissented.
Decision
The termination of Appellant from the Drug Court Program in Pontotoc County District Court Case No. CF-2015-178 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 filing of this decision.
Issues
- Was the termination of Mr. Wagnon from the Drug Court Program improperly based on hearsay statements, violating his right to confront witnesses against him?
- Was Mr. Wagnon improperly terminated from the Drug Court Program based on an alleged uncharged misdemeanor, in violation of Oklahoma Statute?
- Did the Drug Court fail to provide progressively increasing sanctions to Mr. Wagnon in an attempt to gain compliance?
- Did the trial court violate Mr. Wagnon's due process rights by failing to state the condition of the Drug Court Program that was violated and explain why disciplinary sanctions were insufficient or not appropriate?
Findings
- the court did not err in admitting hearsay statements as they were corroborated by the officer's observations
- the court found no merit in the argument that an arrest for a misdemeanor was an insufficient ground for termination from Drug Court
- the court found no abuse of discretion in the lack of progressively increasing sanctions prior to termination from Drug Court
- the court found no merit in the final argument regarding insufficient explanation of violations and sanctions, affirming the trial court's decision
F-2018-84
Aug. 29, 2019
Carl David Wagnon
Appellant
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
ROWLAND, JUDGE: Appellant, Carl David Wagnon, was charged on March 24, 2015, in Pontotoc County District Court Case No. CF-2015-178 with Driving a Motor Vehicle While Under the Influence of Alcohol, a felony, after two or more felony convictions. On October 1, 2015, Appellant entered a plea of guilty and, pursuant to a plea agreement, sentencing was delayed pending Appellant entering Drug Court. It was agreed that if successful in the Drug Court program, the case would be dismissed; if not, Appellant would be sentenced to twenty years imprisonment. The State filed an application to terminate Appellant from Drug Court participation on July 17, 2017, alleging Appellant committed the new crime of Domestic Assault and Battery. Following a hearing on January 24, 2018, before the Honorable Steven Kessinger, District Judge, the State’s motion was granted. Appellant was sentenced to twenty years imprisonment. Appellant appeals from the termination from Drug Court.
On appeal Appellant raised the following propositions of error:
1. The termination of Mr. Wagnon from the Drug Court Program was improperly based on hearsay statements, violating Mr. Wagnon’s right to confront witnesses against him;
2. Mr. Wagnon was improperly terminated from the Drug Court Program based on an alleged uncharged misdemeanor, in violation of Oklahoma Statute;
3. Mr. Wagnon was not given progressively increasing sanctions in an attempt to gain compliance; and
4. The trial court did not state on the record the condition of the Drug Court Program that was violated, nor did the court explain why disciplinary sanctions have been insufficient or were not appropriate, in violation of Mr. Wagnon’s due process rights.
We find reversal is not required and affirm the trial court’s order to terminate Appellant from the Drug Court Program.
1. Appellant argues in his first proposition of error that the admission of the hearsay statements into evidence violated Appellant’s right to confront and cross-examine witnesses and that the trial court did not even consider whether the out-of-court statement bore a substantial guarantee of trustworthiness or had sufficient indicia of reliability. The State answers that the red marks the officer observed on the face of the driver of the vehicle corroborates the witness’s written and verbal statements to the officer. Hampton v. State, 2009 OK CR 4, ¶ 14, 203 P.3d 179, 183, holds that the probationer’s right of confrontation is a right that arises from due process considerations, and is not the same as that granted defendants under the Sixth Amendment of the U.S. Constitution in criminal prosecutions, but is instead a right that arises from due process considerations. Accordingly, a probationer’s right of confrontation is subject to relaxed due process standards that may permit introduction of evidence that would not be admissible in an adversary criminal trial. Id. The due process mandated for this type of hearing is that of fundamental fairness. Id. at ¶ 18. Hampton also holds that revocation cannot be based entirely upon hearsay evidence. Id. at ¶ 21. In the present case, the police officer’s observations provide corroborating evidence for the written and verbal statements to the officer by the witness. Appellant has not shown that he has been denied due process.
2. We find no merit to Appellant’s argument that an arrest for a misdemeanor offense is an insufficient ground to terminate a participant from Drug Court. Section 471.2(B)(9) of Title 22 is a notice provision, and subsections 9(a)-(d) are a list of conditions that offenders are, from the very beginning, on notice could lead to termination. Section 471.2 of the Drug Court Act addresses Drug Court program eligibility and how to request admission into a Drug Court program. Section 471.7 of the Drug Court Act addresses progress reports, periodic reviews, and revocation from the program.
3. In Appellant’s third proposition of error, he argues the Drug Court did not use progressively increasing sanctions to gain compliance and that Appellant was never sanctioned to jail time, rehabilitation, or to an intermediate revocation facility. 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, § 441.7(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. Section 471.7(G) of Title 22 also directs: Nothing in this provision shall be construed to limit the authority of the judge to remove an offender from the program and impose the required punishment stated in the plea agreement after application, notice, and hearing. 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, 898. Appellant has not shown an abuse of discretion.
4. We find no merit to Appellant’s final proposition of error. Judge Kessinger found Appellant violated the conditions of the performance contract and that disciplinary sanctions had been insufficient to gain compliance. Appellant has not shown an abuse of discretion.
DECISION
The termination of Appellant from the Drug Court Program in Pontotoc County District Court Case No. CF-2015-178 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 filing of this decision.
Footnotes:
- Hampton U. State, 2009 OK CR 4, I 14, 203 P.3d 179, 183.
- 22 O.S.2011, 441.7(E).
- 22 O.S.2011, 471.7(E).
- 22 O.S.2011, 471.7(G).
- Hagar U. State, 1999 OK CR 35, IT 11, 990 P.2d 894, 898.
- Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019).
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 701.8 - Sentencing for Repeat Offenders
- Okla. Stat. tit. 22 § 471.2 - Drug Court Program Eligibility
- Okla. Stat. tit. 22 § 471.7 - Drug Court Progress Reports and Revocation
- Okla. Stat. tit. 22 § 441.7 - Revocation Hearing Procedures
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:
- Hampton v. State, 2009 OK CR 4, I 14, 203 P.3d 179, 183
- Hagar v. State, 1999 OK CR 35, IT 11, 990 P.2d 894, 898