Jack Joseph Taylor v The State Of Oklahoma

RE-2011-562

Filed: Apr. 24, 2013

Not for publication

Prevailing Party: Jack Joseph Taylor

Summary

Jack Joseph Taylor appealed his conviction for violating his probation. The conviction and sentence were for ten years in prison, with nine years and nine months revoked due to new charges. Judge Kelly dissented.

Decision

The final order of the District Court of Washita County, revoking the suspended portions of Appellant's concurrent sentences in Case No. CF-2001-38, 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. (2013), MANDATE IS ORDERED ISSUED on the filing of this decision.

Issues

• Was there a denial of a fair and impartial hearing on the State's Motion to Revoke due to the presiding judge's prior involvement as the Assistant District Attorney in Appellant's earlier case?
• Did the failure of the presiding judge to disclose his prior involvement in Appellant's case violate the required impartiality standards for revocation hearings?
• Was the Appellant's right to an impartial judge infringed upon during the revocation hearing?
• Did the lack of objection to the judge's presiding over the revocation proceeding constitute a waiver of the right to raise the impartiality issue on appeal?
• Was there plain error resulting from the presiding judge's dual role as prosecutor and decisionmaker in the revocation hearing?

Findings

• the court erred

RE-2011-562

Apr. 24, 2013

Jack Joseph Taylor

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

In the District Court of Washita County, Case No. CF-2001-38, Appellant, Jack Joseph Taylor, while represented by court-appointed counsel, entered pleas of nolo contendere to Count 1, Arson in the Second Degree, and to Count 2, Conspiracy to Commit Arson in the Second Degree. On July 17, 2001, pursuant to a plea agreement, the Honorable Joe Burch, Associate District Judge, sentenced Appellant to concurrent terms of ten (10) years imprisonment with all but the first 90 days suspended under written conditions of probation.

On March 29, 2011, the State filed a Motion to Revoke Suspended Sentence alleging that Appellant violated his probation by committing on September 23, 2010, the felony of Child Abuse by Injury as alleged in the District Court of Custer County, Case No. CF-2010-383. The District Court appointed counsel to represent Appellant on this Motion; however, the attorney appointed was not the same attorney who had represented Appellant during the 2001 plea and sentencing hearing.

The State’s Motion to Revoke came before the Honorable Christopher S. Kelly, Associate District Judge, for the evidentiary hearing, on April 21, 2011. At that hearing and without objection, Judge Kelly received the preliminary hearing transcript from Appellant’s Custer County matter into evidence. Judge Kelly reviewed the transcript and found Appellant had violated his probation; however, at Appellant’s request he set off the punishment decision until completion of Appellant’s jury trial on the new case. The following month the Custer County jury found Appellant guilty of Child Abuse and returned a verdict for ten (10) years imprisonment. On June 16, 2011, Judge Kelly revoked the suspension order in full thereby directing execution of the remaining nine (9) years and nine (9) months of Appellant’s concurrent sentences. These revoked sentences are running consecutively to Appellant’s Custer County sentence.

Appellant now appeals the revocation order and raises five propositions of error. As this Court finds Appellant entitled to reversal under his first proposition, those remaining propositions need not be addressed.

Appellant’s Proposition I asserts that Appellant was denied a fair and impartial hearing on the State’s Motion to Revoke because the presiding judge at the revocation hearing [was the Assistant District Attorney who] prosecuted Appellant in earlier stages of the same case. (Br. of Appellant 9.) In this regard, the appeal record reveals that Judge Kelly, prior to becoming the Associate District Judge for Washita County, served as an Assistant District Attorney in Washita County, and in that capacity, filed the Arson and Conspiracy charges against Appellant and personally prosecuted Appellant to conviction. According to the record, as Assistant District Attorney, Judge Kelly represented the State in the waiver of preliminary hearing, the amending of the charges from first to second degree arson, in the negotiated nolo pleas from Appellant given for the State’s recommendation of partially suspended, ten-year, concurrent sentences, and which sentences would be conditioned on rules of probation personally approved by Judge Kelly as State’s counsel.

The minimum due process standards established by the U.S. Supreme Court in probation revocation proceedings call for such proceedings to be before an independent decisionmaker or neutral and detached hearing body. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761-62, 36 L.Ed. 2d 656 (1973). To fulfill that requirement, Oklahoma’s statutes require revocations to be brought before the sentencing court by petition filed by the district attorney with the clerk of the sentencing court. 22 O.S.2011, § 991b(A). The petition set[s] forth the grounds for such revocation and it is to be presented with competent evidence justifying the revocation to the court at a hearing to be held for that purpose. Id. In placing revocations before the sentencing court, the Legislature has presumed those statutes and canons regulating trial court judges will assure a decisionmaker meeting the due process standards for hearings on revocation petitions. One such statute is that at 20 O.S.2011, § 1401(A), which states, No judge of any court shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested, or in which he has been of counsel for either side, without the consent of the parties to said action entered of record. This provision, however, was not followed in Appellant’s matter.

Although this Court has distinguished the situation where a revocation judge has, as a former prosecutor, prosecuted a defendant on a separate case that occurred prior to that case that is before him on revocation, this Court has never authorized a judge to hear a motion to revoke a suspended sentence that he personally procured when serving as a prosecutor.

The State’s Answer Brief asserts this error has been waived by Appellant’s lack of objection to Judge Kelly presiding over the revocation proceeding. That argument, however, ignores the lack of disclosure by Judge Kelly of his prior involvement in Appellant’s case and ignores the mandatory language in Section 1401(A) requiring waiver to be on the record. Moreover, this argument does not account for the fact that this incident has all the markings of plain error.

To show plain error justifying relief on appeal, the appealing party must prove the following: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. If these elements are met, this Court will correct plain error only if the error seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Hogan v. State, 2006 OK CR 19, 138, 139 P.3d 907, 923 (citations omitted). Additionally, this Court has observed, there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error, and the right to an impartial judge is one of those. Bartell v. State, 1994 OK CR 59, 115, 881 P.2d 92, 97.

Lastly, we recognize that revocation hearings are not criminal trials, and therefore they do not carry the full panoply of constitutional rights that accompany such trials. This being so, cases involving criminal trials and cases involving revocations do not always lend themselves to direct comparisons. In this instance, however, as we have identified above, in Scarpelli the Supreme Court denoted the need for a neutral/independent decisionmaker in revocation hearings; hence, to the extent that criminal trials depend on the same, we need not be overly concerned about such comparisons where the issue is that of judge neutrality.

In urging that this Court reject this claim, the State has not cited to any decision that would uphold such a ruling and affirm a judge’s revocation where the judge, as a former government attorney, was personally involved in obtaining the suspended sentence that he revoked and failed to disclose that personal involvement prior to hearing the revocation. Where other jurisdictions have addressed such circumstances, they have concluded that the probationer must be granted relief.

DECISION

The final order of the District Court of Washita County, revoking the suspended portions of Appellant’s concurrent sentences in Case No. CF-2001-38, 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. (2013), MANDATE IS ORDERED ISSUED on the filing of this decision.

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Footnotes:

1. Gagnon U. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761-62, 36 L.Ed. 2d 656 (1973).
2. 22 O.S.2011, § 991b(A).
3. 20 O.S.2011, § 1401(A).
4. Alexander v. State, 2002 OK CR 23, 18, 48 P.3d 110, 114.
5. Sam U. State, 1973 OK CR 264, 11 17-18, 510 P.2d 978, 981.
6. Buis v. State, 1990 OK CR 28, 91 9, 792 P.2d 427, 430.
7. Bryan U. State, 1997 OK CR 15, I 27, 935 P.2d 338, 355.
8. Hogan v. State, 2006 OK CR 19, "I 38, 139 P.3d 907, 923.
9. Bartell v. State, 1994 OK CR 59, I 15, 881 P.2d 92, 97.
10. Small v. Commonwealth, 617 S.W.2d 61 (Ky. Ct. App. 1981).
11. Ex parte Miller, 696 S.W.2d 908 (Tex. Cr. App. 1985).

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 991b(A) - Revocation of Suspended Sentences
• Okla. Stat. tit. 20 § 1401(A) - Disqualification of Judges

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:

• Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 2d 656 (1973)
• Alexander v. State, 2002 OK CR 23, 48 P.3d 110
• Sam v. State, 1973 OK CR 264, 510 P.2d 978
• Buis v. State, 1990 OK CR 28, 792 P.2d 427
• Bryan v. State, 1997 OK CR 15, 935 P.2d 338
• Hogan v. State, 2006 OK CR 19, 139 P.3d 907
• Bartell v. State, 1994 OK CR 59, 881 P.2d 92
• Small v. Commonwealth, 617 S.W.2d 61 (Ky. Ct. App. 1981)
• Ex parte Miller, 696 S.W.2d 908 (Tex. Cr. App. 1985)