Michelle Renea Runco v The State of Oklahoma

RE 2013-0523

Filed: Mar. 6, 2014

Not for publication

Prevailing Party: Michelle Renea Runco

Summary

Michelle Renea Runco appealed her conviction for Neglect by Caretaker. Her conviction and sentence were reversed. The court found that she did not properly waive her right to have a lawyer during her revocation hearing, which was a mistake.

Decision

The revocation of Appellant's suspended sentence in Garfield County District Court Case No. CF-2009-30 is REVERSED and REMANDED to the District Court for a new hearing on the State's application to revoke with Appellant represented by counsel or a valid waiver in the record. 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.

Issues

• Was the full revocation of Appellant's suspended sentence an abuse of discretion?
• Did the trial court abuse its discretion in revoking Appellant's suspended sentence by allowing her to proceed without counsel and without a valid waiver of her right to counsel?

Findings

• the trial court erred in allowing Appellant to proceed pro se without a valid waiver of the right to counsel
• the revocation of Appellant's suspended sentence is reversed and remanded for a new hearing with Appellant represented by counsel or with a valid waiver in the record

RE 2013-0523

Mar. 6, 2014

Michelle Renea Runco

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE:

Appellant, Michelle Renea Runco, pled guilty on September 28, 2009, to Neglect by Caretaker in Garfield County District Court Case No. CF-2009-30. She was given a five-year suspended sentence with rules and conditions of probation. The State filed an application to revoke Appellant’s suspended sentence on February 8, 2012, alleging Appellant (1) failed to keep probation officer informed of her whereabouts or report as ordered, (2) failed to follow all instructions given her by her probation officer, and (3) tested positive for the use of marijuana on July 14, 2011, July 21, 2011, August 9, 2011, December 29, 2011, January 3, 2012, and January 11, 2012. Appellant appeared pro se at the revocation hearing on May 21, 2013, before the Honorable Paul K. Woodward, District Judge. Judge Woodward found Appellant violated the term of probation and revoked Appellant’s suspended sentence in full. Appellant appeals, raising the following issues: (1) that the full revocation of Appellant’s suspended sentence was an abuse of discretion and (2) that the trial court abused its discretion in revoking Appellant’s suspended sentence after allowing her to proceed throughout her revocation without the assistance of counsel and without a valid waiver of her right to counsel in violation of the 14th Amendment to the United States Constitution, article II, § 7 of the Oklahoma Constitution, and Oklahoma Statutes Title 22, § 991b.

In the State’s Answer Brief filed in this Court on March 6, 2014, the State concurs that the record is inadequate to show that Appellant waived her right to counsel at her revocation hearing. After reviewing the record on appeal we agree. 1 Section 991b(D) of Title 22 sets forth that the person whose suspended sentence is being considered for revocation at the hearing shall have the right to be represented by counsel. The right to counsel may be waived, but if the right to counsel is waived, the record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. This record is mandatory and anything less is not waiver. Lineberry U. State, 1983 OK CR 115, II 6, 668 P.2d 1144. See Faretta v.California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); Mathis v. State, 2012 OK CR 1, IT 7, 271 P.3d 67, 71-72. The State concedes and we agree that error occurred when Appellant proceeded pro se at her revocation hearing without the trial court obtaining on the record a valid waiver of the right to counsel. The record is void of a voluntary, intelligent and knowing waiver of the right to counsel.

1 Because Appellant’s second proposition of error requires relief, the first proposition of error will not be addressed.

DECISION

The revocation of Appellant’s suspended sentence in Garfield County District Court Case No. CF-2009-30 is REVERSED and REMANDED to the District Court for a new hearing on the State’s application to revoke with Appellant represented by counsel or a valid waiver in the record. 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.

REVOCATION APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY, THE HONORABLE PAUL K. WOODWARD, DISTRICT JUDGE

APPEARANCES AT TRIAL
MICHELLE RUNCO
PRO SE

APPEARANCES ON APPEAL
RICKI J. WALTERSCHEID
APPELLATE DEFENSE COUNSEL
P.O. BOX 926
NORMAN, OKLAHOMA 73070

COUNSEL FOR APPELLANT
IRENE ASAI
E. SCOTT PRUITT
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
114 WEST BROADWAY
ENID, OKLAHOMA 73701

JUDY KING
ASSISTANT ATTORNEY GENERAL
COUNSEL FOR THE STATE
313 N.W. 21st STREET
OKLAHOMA CITY, OKLAHOMA 73105

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

RC 3

Click Here To Download PDF

Footnotes:

1. Okla. Stat. tit. 22 § 991b.
2. Lineberry v. State, 1983 OK CR 115, 6, 668 P.2d 1144.
3. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).
4. Mathis v. State, 2012 OK CR 1, 7, 271 P.3d 67, 71-72.

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 991b - Right to Counsel
• Okla. Stat. tit. 21 § 701.8 - Neglect by Caretaker

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 14th Amendment - Rights of Citizenship
• 22 U.S.C. § 991b - Probation and Parole
• Faretta v. California - Right to Counsel

Other citations:

No other rule citations found.

Case citations:

• Lineberry v. State, 1983 OK CR 115, II 6, 668 P.2d 1144
• Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562
• Mathis v. State, 2012 OK CR 1, IT 7, 271 P.3d 67, 71-72