C.G. v State Of Oklahoma

J-2019-620

Filed: Feb. 6, 2020

Not for publication

Prevailing Party: State Of Oklahoma

Summary

C.G. appealed his conviction for First Degree Murder and First Degree Burglary. His conviction and sentence were upheld by the court. Judge Lewis and Vice-Presiding Judge Kuehn dissented.

Decision

The order of the District Court of Oklahoma County denying Appellant's motion for certification as either a juvenile or youthful offender in Oklahoma County Case No. CF-2019-1347 is AFFIRMED. Appellant's motion for an evidentiary hearing pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), is DENIED. Appellant's motion for stay of proceedings and to file additional brief pursuant to Rule 7.7, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), is DENIED. 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 delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the trial court in denying C.G.'s motion to be certified as a youthful offender?
• Did the court err by admitting a recording of C.G.'s illegal custodial interrogation into evidence at the certification hearing?
• Did the court violate C.G.'s constitutional rights by admitting his involuntary confession at the certification hearing, and was the error harmless beyond a reasonable doubt?
• Was there prosecutorial misconduct that violated C.G.'s due process rights?
• Was C.G. denied effective assistance of counsel due to counsel's failure to call a key witness to rebut the State's evidence?

Findings

• the court did not err in denying Appellant's motion to be certified as a youthful offender
• the court's evidentiary rulings were not properly presented for consideration in this appeal
• the court did not abuse its discretion regarding the admission of the confession
• the prosecutorial misconduct claim was not substantiated
• the ineffective assistance of counsel claim was not properly before the court
• the motion for an evidentiary hearing was denied
• the motion to stay proceedings and to file an additional brief was denied

J-2019-620

Feb. 6, 2020

C.G.

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN LUMPKIN, JUDGE:

On March 28, 2019, Appellant was charged as an adult with Count 1, First Degree Murder and Count 2, First Degree Burglary in Oklahoma County Case No. CF-2019-1347. Appellant was 14 years, 3 months and 4 days old on the date the offense was committed. On April 8, 2019, Appellant filed a Motion For Certification as either a juvenile or youthful offender. A preliminary hearing was conducted June 14, 2019, after which the State filed an amended information additionally charging Appellant with Count 5, Conspiracy to Commit Second Degree Burglary. A hearing addressing Appellant’s certification motion began on July 17, 2019, and concluded on August 16, 2019. At the conclusion of the hearing, the District Court of Oklahoma County, the Honorable Mark C. McCormick, Special Judge, denied Appellant’s request for certification as either a juvenile or youthful offender. It is from this ruling that Appellant appeals, raising the following propositions of error:

1. The court abused its discretion by denying C.G.’s motion to be certified as a youthful offender. The felony murder occurred in the course of a botched burglary; the 14-year-old C.G. had no prior record and was a good student; C.G. was amenable to treatment; and the youthful offender system would adequately protect the public;

2. The court plainly erred by admitting a recording of C.G.’s illegal custodial interrogation into evidence against him at the certification hearing;

3. The court violated C.G.’s constitutional rights by admitting his involuntary confession against him at the certification hearing, and the error was not harmless beyond a reasonable doubt;

4. Prosecutorial misconduct violated C.G.’s due process rights; and

5. C.G. was denied effective assistance of counsel, as counsel failed to call a key witness to rebut the State’s evidence of C.G.’s poor post-offense attitude.

Pursuant to Rule 11.2(A)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), this appeal was automatically assigned to this Court’s Accelerated Docket. The propositions and issues were presented to this Court in oral argument on December 5, 2019, pursuant to Rule 11.2(E). At the conclusion of oral argument, the parties were advised of the Court’s decision. The District Court’s order denying Appellant’s motion for certification as either a juvenile or youthful offender is AFFIRMED. Appellant’s motion for an evidentiary hearing pursuant to this Court’s Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), is DENIED. Appellant’s application to stay proceedings and motion to file additional brief pursuant to Rule 7.7, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), is DENIED.

At proposition one, Appellant alleges the trial court abused its discretion in denying his request for certification as either a juvenile or youthful offender. “[A]buse of discretion” is defined by this Court as: a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application. The trial court’s decision must be determined by the evidence presented on the record, just as our review is limited to the record presented. (citations omitted). W.C.P. U. State, 1990 OK CR 24, I 9, 791 P.2d 97, 100. After reviewing the appeal record in its entirety, and hearing argument of the parties, we find no abuse of discretion in Judge McCormick’s order denying Appellant’s motion for certification. Propositions 2 – 4, addressing evidentiary matters, are not properly presented for consideration in this appeal and are therefore denied. See J.D.P. U. State, 1999 OK CR 5, 14, 989 P.2d 948 (“Appellant’s propositions one and two involve evidentiary matters and are not properly before the Court in this juvenile appeal.”). Similarly, Appellant’s ineffective assistance of counsel claim in Proposition 5 is not properly before this Court, nor is his motion filed pursuant to Rule 3.11(B)(3)(b)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). In essence, he seeks interlocutory review of this claim. Interlocutory review of an issue does not occur in this Court absent constitutional, statutory, or clear legal precedent authorizing such review. Smith U. State, 2013 OK CR 14, 9 24, 306 P.3d 557, 567. The right to appeal the trial court’s certification decision is granted by statute and contains no provision for interlocutory appeals of ineffective assistance counsel claims during certification proceedings. See 10A O.S.Supp.2018, § 2-5-208 (“An order certifying or denying certification for imposition of an adult sentence shall be a final order, appealable when entered.”). Cf. McNeely v. State, 2018 OK CR 18, I 3, 422 P.3d 1272, 1274 (finding interlocutory appeal of trial court’s denial of motion to dismiss based upon the “stand your ground” law was not authorized by the law itself; therefore, trial court’s decision on the motion was not appealable prior to trial). Accordingly, the appeal herein is limited to determination of the issue of whether the trial court’s decision denying Appellant’s motion for certification as a juvenile or youthful offender was an abuse of discretion. We find the trial court did not abuse its discretion.¹

DECISION

The order of the District Court of Oklahoma County denying Appellant’s motion for certification as either a juvenile or youthful offender in Oklahoma County Case No. CF-2019-1347 is AFFIRMED. Appellant’s motion for an evidentiary hearing pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), is DENIED. Appellant’s motion for stay of proceedings and to file additional brief pursuant to Rule 7.7, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), is DENIED. 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 delivery and filing of this decision.

APPEARANCES AT TRIAL
TAMER SHAWAREB
O.I.D.S.
228 ROBERT S. KERR, SUITE 715
OKLAHOMA CITY, OK 73102
COUNSEL FOR THE DEFENDANT

APPEARANCES ON APPEAL
CHAD JOHNSON
P.O. BOX 926
NORMAN, OK 73072
COUNSEL FOR APPELLANT

TIFFANY NOBLE
SARAH VENTRIS
ASST. DISTRICT ATTORNEYS
OKLAHOMA COUNTY
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.
LEWIS, P.J.: Dissent
KUEHN, V.P.J.: Dissent
HUDSON, J.: Concurs
ROWLAND, J.: Concur

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Footnotes:

1. ¹ Appellant appends an unpublished decision of this Court, Loveless v. State, No. F-1998-0975 (March 23, 2000), to his application to stay proceedings and motion to file additional brief.
2. 2 See 10A O.S.Supp.2018, § 2-5-205.
3. 3 See 10A O.S. Supp.2018, § 2-5-210.
4. 4 See 10A O.S.Supp.2018, § 2-5-208.
5. 5 See 10A O.S.Supp.2018, § 2-5-208(E).

Oklahoma Statutes citations:

• Okla. Stat. tit. 10A § 2-5-208 (2018) - Certification of juvenile for adult sentence
• Okla. Stat. tit. 10A § 2-5-205 (2018) - Factors to consider for certification
• Okla. Stat. tit. 10A § 2-5-210 (2018) - Rehabilitation of youthful offenders

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:

• W.C.P. v. State, 1990 OK CR 24, I 9, 791 P.2d 97, 100
• J.D.P. v. State, 1999 OK CR 5, 14, 989 P.2d 948
• Smith v. State, 2013 OK CR 14, I 24, 306 P.3d 557, 567
• McNeely v. State, 2018 OK CR 18, I 3, 422 P.3d 1272, 1274
• Gordon v. State, 2019 OK CR 24, 451 P.3d 573