William Alvin Wimbley v The State Of Oklahoma

F-2019-99

Filed: Jan. 30, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

William Alvin Wimbley appealed his conviction for violating his drug court agreement. His conviction and sentence were for twenty years in prison for multiple counts of drug possession and for possessing a firearm after being convicted of a felony. Judge Walter Hamilton decided to end Wimbley's participation in the drug court because he violated the terms of the program. Wimbley argued that his lawyer wasn't effective during the termination hearing because of comments made by the judge about the possible outcome of his appeal. However, the court found that Wimbley did not prove his lawyer was ineffective. The decision to terminate his drug court participation was upheld, and the court affirmed his twenty-year sentence. Judge Kuehn, Judge Lumpkin, Judge Hudson, and Judge Rowland agreed with the opinion, but Judge N. dissented.

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.

Issues

• Was there ineffective assistance of termination counsel based on the trial court's comments during the termination hearing?
• Did the trial court abuse its discretion in terminating Appellant's participation in drug court?

Findings

• the court did not err in affirming the termination of Appellant's drug court participation
• the evidence was sufficient to support the termination of Appellant's drug court participation
• Appellant's claim of ineffective assistance of termination counsel is without merit
• the trial judge did not abuse his discretion in terminating Appellant's participation in drug court

F-2019-99

Jan. 30, 2020

William Alvin Wimbley

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

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 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 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. 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.

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Footnotes:

1. 63 O.S.Supp.2012, § 2-402
2. 21 O.S.Supp.2014, § 1283
3. Strickland v. Washington, 466 U.S. 668 (1984)
4. Smith v. Robbins, 528 U.S. 259 (2000)
5. Hagar U. State, 1999 OK CR 35, I 12, 990 P.2d 894, 898
6. 22 O.S.2011, § 471.7(E)
7. Hagar, 1999 OK CR 35, I 11, 990 P.2d at 898
8. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 (2012) - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 1283 (2014) - Possession of a Firearm After Conviction of a Felony
• Okla. Stat. tit. 22 § 471.7 (2011) - Drug Court Participation

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:

• Hagar v. State, 1999 OK CR 35, I 12, 990 P.2d 894, 898
• Hagar v. State, 1999 OK CR 35, I 11, 990 P.2d 894, 898
• Hagar v. State, 1999 OK CR 35, I 11, 990 P.2d 894, 898