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ORIGINAL *1044680787 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA WILLIAM ALVIN WIMBLEY, ) ) Appellant, NOT FOR PUBLICATION ) V. ) No. F-2019-99 ) THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA Appellee. ) JAN 30 2020 JOHN D. HADDEN SUMMARY OPINION CLERK LEWIS, PRESIDING JUDGE: On April 30, 2018, Appellant entered pleas of guilty in McCurtain County District Court to Possession of a Controlled Dangerous Substance, in violation of 63 O.S.Supp.2012, § 2-402 (Count 1) in Case No. CF-2016-103; and Possession of a Controlled Dangerous Substance, in violation of 63 O.S.Supp.2012, § 2-402 (Count 1), Possession of a Firearm After Conviction of a Felony, in violation of 21 O.S.Supp.2014, § 1283 (Count 2), and Possession of a Controlled Dangerous Substance, in violation of 63 O.S. Supp. 2012, § 2-402 (Count 3) in Case No. CF-2017-147. Appellant was admitted to the McCurtain County Drug Court Program. The parties agreed that if Appellant was successful in drug court the charges would be dismissed. If terminated from drug court Appellant would be sentenced to twenty years imprisonment on each of the four counts. The sentences would be served concurrently. On October 3, 2018, the State filed an Application to Revoke From Drug Court alleging “the defendant has on numerous occasions violated the terms and conditions of Drug Court for which the defendant received sanctions which were graduated in severity; however, despite the prior graduated sanctions, the defendant has willfully and intentionally continued to violate the terms and conditions of Drug Court.” Following a termination hearing the Honorable Walter Hamilton, Special Judge, found Appellant violated his performance contract and terminated Appellant’s participation in drug court. Appellant was sentenced pursuant to the drug court plea agreement to twenty years imprisonment. Appellant appeals the termination of his Drug Court participation. In his sole proposition, Appellant argues termination counsel was ineffective based on comments made by the trial court during the termination hearing. Twice during the hearing Judge Hamilton stated that if terminated Appellant would serve twenty years in 2 custody pursuant to his drug court plea agreement unless this Court reversed the trial court’s termination order. According to Appellant, Judge Hamilton’s comments on possible reversal by this Court rendered his termination counsel’s representation ineffective. There is no support for Appellant’s claim in this appeal record. Claims of ineffective assistance of counsel are reviewed under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Smith v. Robbins, 528 U.S. 259, 289 (2000). Under Strickland, a petitioner must show both (1) deficient performance, by demonstrating that his 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, 466 U.S. at 687-89. 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, 104 (2011) (quoting Strickland, 466 U.S. at 689). Pursuant to Strickland, termination counsel is presumed to be 3 competent. It is Appellant’s burden to show that counsel’s performance was deficient, and that the deficiency resulted in prejudice. After examining Appellant’s claim, pursuant to the Strickland standard stated above, we find Appellant’s ineffective assistance of termination counsel claim is without merit. Appellant did not establish that his termination hearing representation was deficient. Drug court cases are treated similarly to acceleration proceedings. Hagar U. State, 1999 OK CR 35, I 12, 990 P.2d 894, 898; Rule 1.2(D)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020). In revoking or terminating a defendant from a drug court program, the trial court makes a factual determination involving the existence of a violation of the terms of the plea agreement or performance contract and whether disciplinary sanctions have been insufficient to gain compliance. Hagar, 1999 OK CR 35, I 11, 990 P.2d at 898; 22 O.S.2011, § 471.7(E). Judge Hamilton was asked to determine whether Appellant had violated the terms of his drug court performance contract. In order to terminate, Judge Hamilton looked at whether any single violation of Appellant’s performance contract was proven by a preponderance of the evidence. 4 Hagar, 1999 OK CR 35, I 11, 990 P.2d at 898. The question is whether or not Judge Hamilton abused his discretion in terminating Appellant’s participation. Id. Appellant has not established that Judge Hamilton abused his discretion in terminating his participation in Drug Court. DECISION The termination of Appellant’s participation in drug court in McCurtain County District Court Case Nos. CF-2016-103 and CF- 2017-147 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon the filing of this decision. TERMINATION APPEAL FROM THE DISTRICT COURT OF MCCURTAIN COUNTY, THE HONORABLE WALTER HAMILTON, SPECIAL JUDGE 5 APPEARANCES IN TRIAL COURT APPEARANCES ON APPEAL Hugh Hood Mark Hoover Attorney at Law Appellate Defense Counsel 406 S. Boulder Ave. P.O. Box 926 Tulsa, OK 74103 Norman, OK 73070 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT Mark Uptegrove Mike Hunter Assistant District Attorney Attorney General of Oklahoma 108 N. Central Ave., Ste. 1 Tessa Henry Idabel, OK 74745 Assistant Attorney General COUNSEL FOR THE STATE 313 N.W. 21st Street Oklahoma City, OK 73105 COUNSEL FOR THE STATE OPINION BY: LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur RA 6

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