Byrin Carr v The State Of Oklahoma

M-2016-268

Filed: Apr. 2, 2017

Not for publication

Prevailing Party: Byrin Carr

Summary

Byrin Carr appealed his conviction for threatening to perform an act of violence and resisting an officer. Conviction and sentence were reversed and remanded for a new trial. Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the trial court is REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was Appellant's waiver of counsel knowing and voluntary?
• Did the trial court err by failing to warn Appellant of the dangers of self-representation?
• Did the trial court abuse its discretion when reviewing Appellant's waiver of counsel?
• Is there sufficient evidence to show Appellant's waiver of counsel was knowing and voluntary?

Findings

• the trial court erred by failing to warn Appellant of the dangers of self-representation
• the Appellant's waiver of counsel was not knowing and voluntary
• the Judgment and Sentence of the trial court is REVERSED and REMANDED for a new trial

M-2016-268

Apr. 2, 2017

Byrin Carr

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

SMITH, JUDGE: Following a jury trial on March 11, 2016, Appellant was found guilty of Count 1 – Threatening to Perform an Act of Violence and Count 2 – Resisting an Officer in Garfield County District Case No. CM-2015-1173. Appellant was convicted and sentenced to six months imprisonment for Count 1 and one year imprisonment, along with a Five Hundred Dollar fine, for Count II. Appellant appeals from the Judgment and Sentence imposed.

In Appellant’s first proposition of error he argues his waiver of counsel was not knowing and voluntary. Specifically, he argues his waiver was not clear and unequivocal and maintains the trial court erred when it failed to warn Appellant of the dangers of self-representation. After reviewing the record on appeal we agree the trial court erred by failing to warn Appellant of the dangers of self-representation.

This Court must determine if the trial court abused its discretion when reviewing the Appellant’s waiver of counsel. Mathis v. State, 2012 OK CR 1, I 18, 271 P.3d 67, 75. Appellant must have knowingly and voluntarily entered a waiver of his right to counsel, on the record, before representing himself in his Garfield County jury trial. Lineberry v. State, 1983 OK CR 115, I 4, 668 P.2d 1144, 1145.

Reviewing the totality of the circumstances in this case there is insufficient evidence to show Appellant’s waiver of counsel was knowing and voluntary. Braun v. State, 1995 OK CR 42, IT 12, 909 P.2d 983, 988. Anything less than a record establishing that the trial court informed the Appellant of the dangers and disadvantages of representing himself is insufficient to constitute a valid waiver of counsel. Braun v. State, 1995 OK CR 42, I 10, 909 P.2d 783, 788. A record is mandatory. Id.

Before this Court will allow Appellant to suffer the consequences of his decision to waive his right to counsel it must be satisfied the Appellant knew what he was doing when he waived counsel. Coleman v. State, 1980 OK CR 75, I 8-9, 617 P.2d 243, 246. The appeal record contains no evidence of warnings to Appellant of any dangers or disadvantages associated with representing himself or that this decision would likely work to his detriment. Mathis, 2012 OK CR 1, I 15, 271 P.3d at 74. Any doubts regarding this waiver of counsel must be resolved in the Appellant’s favor. Swanegan v. State, 1987 OK CR 180, I 6, 743 P.2d 131, 132.

Based on the facts and circumstances in this case we cannot find the Appellant knowingly, intelligently and voluntarily waived his constitutional right to counsel. Lineberry v. State, 1983 OK CR 115, I 4, 668 P.2d 1144, 1146.

Finding merit to Appellant’s first proposition of error, we do not find it necessary to address Appellant’s remaining proposition of error.

DECISION

The Judgment and Sentence of the trial court is REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision.

APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY

HONORABLE TOM L. NEWBY, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL
BYRIN CARR
2604 E. RANDOLPH
ENID, OKLAHOMA 73701
PRO SE

APPEARANCES ON APPEAL
JAMES L. HANKINS
ATTORNEY AT LAW
929 NORTHWEST 164TH STREET
EDMOND, OKLAHOMA 73013
COUNSEL FOR APPELLANT

IRENE ASAI
E. SCOTT PRUITT
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
GARFIELD COUNTY COURTHOUSE
114 W. BROADWAY AVENUE
ENID, OK 73701
COUNSEL FOR THE STATE

SHERI M. JOHNSON
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY: SMITH, J.
LUMPKIN, P.J.: CONCUR
LEWIS, V.P.J.: CONCUR
JOHNSON, J.: CONCUR
HUDSON, J.: CONCUR

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Footnotes:

1. Mathis v. State, 2012 OK CR 1, I 18, 271 P.3d 67, 75.
2. Lineberry v. State, 1983 OK CR 115, I 4, 668 P.2d 1144, 1145.
3. Braun v. State, 1995 OK CR 42, IT 12, 909 P.2d 983, 988.
4. Braun v. State, 1995 OK CR 42, I 10, 909 P.2d 783, 788.
5. Coleman v. State, 1980 OK CR 75, I 8-9, 617 P.2d 243, 246.
6. Mathis, 2012 OK CR 1, I 15, 271 P.3d at 74.
7. Swanegan v. State, 1987 OK CR 180, I 6, 743 P.2d 131, 132.
8. Lineberry v. State, 1983 OK CR 115, I 4, 668 P.2d 1144, 1146.
9. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Threats of Violence
• Okla. Stat. tit. 21 § 259 (2011) - Resisting an Officer
• Okla. Stat. tit. 22 § 20 (2011) - Right to Counsel

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:

• Mathis v. State, 2012 OK CR 1, I 18, 271 P.3d 67, 75
• Lineberry v. State, 1983 OK CR 115, I 4, 668 P.2d 1144, 1145
• Braun v. State, 1995 OK CR 42, IT 12, 909 P.2d 983, 988
• Braun v. State, 1995 OK CR 42, I 10, 909 P.2d 783, 788
• Coleman v. State, 1980 OK CR 75, I 8-9, 617 P.2d 243, 246
• Swanegan v. State, 1987 OK CR 180, I 6, 743 P.2d 131, 132
• Lineberry v. State, 1983 OK CR 115, I 4, 668 P.2d 1144, 1146