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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA D. S. C., ) ) Appellant, ) NOT FOR PUBLICATION ) V. ) No. J-2014-0646 ) THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS Appellee. ) STATE OF OKLAHOMA OCT 23 2014 SUMMARY OPINION MICHAEL S. RICHIE JOHNSON, JUDGE: CLERK A Delinquency Petition was filed on December 21, 2012, charging D.S.C., Appellant (date of birth September 17, 1997), with two counts of Lewd or Indecent Acts to Child Under 16 pursuant to 21 O.S.2011 § 1123(A)(2), in McCurtain County District Court Case No. JDL-2012-40. Following a non-jury trial on July 9, 2014, the Honorable Michael DeBerry, District Judge, adjudicated D.S.C. delinquent pursuant to 10A O.S.2011, § 2-2-402. D.S.C. appeals from the order adjudicating him as a delinquent child. 10A O.S. 2011, § 2-2-601. Pursuant to Rule 11.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), this appeal was automatically assigned to the Accelerated Docket of this Court. Oral argument was held October 21, 2014. Rule 11.2(E). On appeal D.S.C. raises the following propositions of error: 1. D.S.C. was denied his right to a jury trial because his waiver was contingent upon completion of inpatient treatment which was unavailable to him through no fault of his own. 2. Trial counsel was ineffective for counseling D.S.C. to waive jury trial pursuant to a bargain that could not be fulfilled. We reverse the order adjudicating D.S.C. as a delinquent child and remand the matter to the District Court. D.S.C. argues that the waiver of jury trial in this case was premised upon the State’s offer allowing him to enter and complete a sex offender program. He did not get into any program and therefore could not fulfill his portion of the bargain; hence he could not compel the State to perform their portion of the bargain: dismissal of the petition and re-filing of the case as a non-sex offender registration offense. He points out, correctly, that the State did get the benefit it bargained for (his waiver of jury trial) and that since the plea agreement was never consummated, his right to a jury trial must be restored. We agree. Section 2-2-401 of Title 10A directs that in adjudicatory hearings to determine if a child is delinquent or in need of supervision, the State or any person entitled to service of summons shall have the right to demand a trial by jury that must be granted as in other cases unless waived. We find that the trial court’s refusal to grant D.S.C. a jury trial in this case after the parties’ agreement failed was an abuse of discretion. Once the agreement of the parties failed, the case stood as if no such agreement had ever existed. The waiver of jury trial, an essential part of the agreement, was a nullity and not binding upon D.S.C. See Staley v. State, 1938 OK CR 116, 65 Okl.Cr. 227, 236-238, 84 P.2d 813, 817-818. Finding merit to D.S.C.’s first proposition of error, we do not find it necessary to address the remaining proposition of error. 2 DECISION The order of the District Court of McCurtain County adjudicating Appellant as a Delinquent Child in Case No. JDL-2012-40 is REVERSED and REMANDED for further proceedings consistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF MCCURTAIN COUNTY THE HONORABLE MICHAEL DEBERRY, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL J.P. LONGACRE JAMES L. HANKINS ATTORNEY AT LAW TIMBERBROOKE BUSINESS CENTER IDABEL, OKLAHOMA 74745 929 N.W. 164TH STREET COUNSEL FOR APPELLANT EDMOND, OKLAHOMA 73013 COUNSEL FOR APPELLANT EMILY MAXWELL HERRON EMILY MAXWELL HERRON ASSISTANT DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DISTRICT NO. 17 DISTRICT NO. 17 MCCURTAIN COUNTY MCCURTAIN COUNTY 108 NORTH CENTRAL 108 NORTH CENTRAL IDABEL, OKLAHOMA 74745 IDABEL, OKLAHOMA 74745 COUNSEL FOR THE STATE COUNSEL FOR THE STATE OPINION BY: JOHNSON, J. LEWIS, P.J.: Concur SMITH, V.P.J.: Concur LUMPKIN, J.: Concur 3

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