Richard Shane Kuehn v The State Of Oklahoma
RE-2013-250
Filed: May 9, 2014
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Richard Shane Kuehn appealed his conviction for Lewd Molestation. His conviction and sentence included a twelve-year sentence, which was mostly suspended except for twenty days in jail. Kuehn was unhappy because he believed the judge who decided on his case, Judge Kelly, should not have done so since he had previously worked as the prosecutor in Kuehn's case. The court agreed with Kuehn and decided that Judge Kelly should not have been involved in the hearing. Therefore, they reversed the decision to revoke his suspended sentence and sent the case back for further actions. No judges disagreed with this decision.
Decision
The order of the District Court of Washita County revoking seven years of Appellant's twelve year (minus twenty days) suspended sentence in Case No. CF-2005-3 is REVERSED and the matter is REMANDED to the District Court for further proceedings in accordance with this decision. 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 there a denial of a fair and impartial hearing on the state's motion to revoke due to the presiding judge's previous role as prosecutor in the same case?
- was Mr. Kuehn denied his constitutional right to a speedy prosecution, requiring dismissal?
- should the court remand Mr. Kuehn's case to the district court with instructions to correct his judgment and sentence to reflect credit for time served by an order nunc pro tunc?
Findings
- the court erred
- the remaining propositions of error need not be addressed
- the order is reversed and remanded
RE-2013-250
May 9, 2014
Richard Shane Kuehn
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
The Appellant, Richard Shane Kuehn, appeals from the revocation of seven years of Appellant’s twelve year (minus twenty days) suspended sentence in Case No. CF-2005-3 in the District Court of Washita County, by the Honorable Christopher S. Kelly, Associate District Judge. On January 5, 2005, an Information was filed charging Appellant with Lewd Molestation. The Information is signed by Christopher S. Kelly, Assistant District Attorney. The appeal record contains transcripts of a competency hearing held January 31, 2005, and the preliminary hearing held March 3, 2005, which list Judge Kelly as the Assistant District Attorney representing the State. On November 10, 2005, Appellant pled nolo contendere to Lewd Molestation, and was sentenced to a term of twelve years, with the sentence suspended except for the first twenty days in the County Jail. The Judgment and Sentence states that Judge Kelly was the Assistant District Attorney representing the State.
On September 24, 2009, the State filed a motion to revoke Appellant’s suspended sentence alleging he violated probation by failing to report; failing to attend sex offender treatment; failing to notify probation officer of his whereabouts; and being in arrears on probation fees. On February 5, 2013, the hearing on the motion to revoke began before Judge Kelly. Appellant made an oral motion for Judge Kelly to recuse because he had previously been a prosecutor in the case. Judge Kelly denied the motion. Evidence was presented and the hearing was continued for briefing on a motion to dismiss. On March 5, 2013, after receiving more evidence, Judge Kelly found Appellant violated probation and revoked seven years of the twelve year (minus twenty days) suspended sentence.
Appellant asserts three propositions of error in this appeal:
I. MR. KUEHN WAS DENIED A FAIR AND IMPARTIAL HEARING ON THE STATE’S MOTION TO REVOKE BECAUSE THE PRESIDING JUDGE AT THE REVOCATION HEARING PROSECUTED MR. KUEHN IN EARLIER STAGES OF THE SAME CASE.
II. MR. KUEHN WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY PROSECUTION, REQUIRING DISMISSAL.
III. THIS COURT SHOULD REMAND MR. KUEHN’S CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO CORRECT HIS JUDGMENT AND SENTENCE TO REFLECT CREDIT FOR TIME SERVED BY AN ORDER NUNC PRO TUNC.
ANALYSIS
The State has confessed error on Appellant’s first proposition of error, thus the remaining propositions of error need not be addressed. Oklahoma law provides that [n]o judge of any court shall sit in any cause or proceeding in which he has been of counsel for either side without the consent of the parties to said action entered of record. 20 O.S.2011, § 1401(A). Judge Kelly, while serving as an Assistant District Attorney, was counsel for the State in Washita County District Court Case No. CF-2005-3, from the filing of the Information through imposition of the Judgment and Sentence. Because Appellant did not consent to his sitting as judge in this revocation proceeding, it was error for him to do so. Id.
DECISION
The order of the District Court of Washita County revoking seven years of Appellant’s twelve year (minus twenty days) suspended sentence in Case No. CF-2005-3 is REVERSED and the matter is REMANDED to the District Court for further proceedings in accordance with this decision. 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 WASHITA COUNTY
THE HONORABLE CHRISTOPHER S. KELLY, ASSOCIATE DISTRICT JUDGE
APPEARANCES IN DISTRICT COURT
NEWELL WRIGHT
Attorney at Law
P. O. Box 1494
Clinton, OK 73601
COUNSEL FOR APPELLANT
KATRINA CONRAD-LEGLER
Appellate Defense Counsel
P. O. Box 926
Norman, OK 73070
COUNSEL FOR APPELLANT
DENNIS A. SMITH
District Attorney
Washita County Courthouse
111 East Main Street
Cordell, OK 73632
COUNSEL FOR THE STATE
E. SCOTT PRUITT
Attorney General of Oklahoma
JAY SCHNIEDERJAN
Assistant Attorney General
313 N.E. 21st Street
Oklahoma City, OK 73105
COUNSEL FOR THE STATE
OPINION BY: A. JOHNSON, J.
LEWIS, P.J.: Concur
SMITH, V.P.J.: Concur
LUMPKIN, J.: Concur
C. JOHNSON, J.: Concur
Footnotes:
- Okla. Stat. tit. 20 § 1401(A)
Oklahoma Statutes citations:
- Okla. Stat. tit. 20 § 1401(A) - Judges sitting in causes where they were 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:
- No case citations found