The State Of Oklahoma v Dustin Daukei-Cole

SR-2022-250

Filed: Apr. 20, 2023

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Dustin Daukei-Cole appealed his conviction for Possession of a Controlled Dangerous Substance. Conviction and sentence were upheld with a one-year revocation of his suspended sentence. Judges Rowland, Hudson, Lumpkin, and Lewis agreed with the decision, while there was no dissent noted.

Decision

The Clerk of this Court is ordered to accept for filing Appellant's Amended Brief, tendered for filing August 19, 2022. Further, this Court orders the reserved question of law DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2023), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• whether 22 O.S.2021, § 991b(G) violates the Oklahoma Constitution

Findings

• the appeal is dismissed

SR-2022-250

Apr. 20, 2023

The State Of Oklahoma

Appellant

v

Dustin Daukei-Cole

Appellee

SUMMARY OPINION

DISMISSING RESERVED QUESTION OF LAW

MUSSEMAN, JUDGE: Dustin Daukei-Cole, Appellee, was convicted in the District Court of Cimarron County, Case No. CF-2015-10, of Possession of a Controlled Dangerous Substance, in violation of 63 O.S. § 2-402, following a plea of guilty. Appellee was sentenced on June 15, 2015, to five years in the Department of Corrections with all but the first two years suspended. The State subsequently sought to revoke the remaining three years of Appellee’s suspended sentence. However, following a hearing before the Honorable Jon K. Parsley, District Judge, the trial court ruled that the maximum amount of time that could be revoked was one year in the county jail. 22 O.S.2021, § 991b(G) ([W]hen the suspended sentence of a person is being considered for revocation for an offense where the penalty has subsequently been lowered to a misdemeanor, the sentence shall be modified to a term that does not exceed the current maximum sentence.). The trial court then revoked Appellee’s sentence for one year. The State appeals pursuant to 22 O.S.2021, § 1053(3), raising the following reserved question of law: I. whether 22 O.S.2021, § 991b(G) violates the Oklahoma Constitution. We hold that this appeal should be dismissed.

DISCUSSION

The State’s right of appeal to this Court rests upon statutory authority; it exists only when expressly authorized, and cannot be enlarged by construction. City of Elk City v. Taylor, 2007 OK CR 15, ¶ 7, 157 P.3d 1152, 1154 (citing White v. Coleman, 1970 OK CR 133, ¶ 11, 475 P.2d 404, 406); See also State v. Sayerwine, 2007 OK CR 1. Appellee’s Judgment and Sentence does not mention modification of the suspended sentence, merely that ONE (1) YEAR of the original suspended sentence is hereby revoked. Furthermore, nothing in the record before this Court suggests that any modification to Appellee’s sentence occurred.

Regarding a reserved question of law, there must be a judgment of acquittal or an order of the court which expressly bars further prosecution. State v. Campbell, 1998 OK CR 38, ¶ 8, 965 P.2d 991, 992; See also State v. Tubby, 2016 OK CR 17, ¶ 2, 387 P.3d 918, 920. This Court expressly adopted this requirement for reserved questions of law in 1975 after a thorough review of our precedent at the time. State v. Robinson, 1975 OK CR 237, ¶ 8, 544 P.2d 545, 550 ([I]n order to appeal on a reserved question of law, the appeal must be taken from a judgment of acquittal of the defendant, or from an order of the court authorized by law which expressly bars further prosecution.) (overruled on other grounds in State v. Young, 1994 OK CR 25, ¶ 4, 874 P.2d 57, 58). The State presents no case, nor have we discovered one, where this Court has undertaken a reserved question of law on an order revoking a suspended sentence since our holding in Robinson. To the contrary, it has exclusively applied to acquittals and pretrial rulings barring further prosecution of the alleged crime. See, e.g., Tubby, 2016 OK CR 17, ¶ 1, 387 P.3d at 920 ([J]ury acquitted [defendants] of First Degree Felony Murder and convicted them of Accessory to First Degree Felony Murder.); City of Norman v. Taylor, 2008 OK CR 22, ¶ 1, 189 P.3d 726, 727 (appeal on a reserved question of law following an acquittal); State v. Gaytan, 1998 OK CR 71, ¶ 1, 972 P.2d 356, 357 (appeal on a reserved question of law following an acquittal after jury trial); Campbell, 1998 OK CR 38, ¶¶ 6-10, 965 P.2d at 992-93 (holding an appeal on a reserved question of law was appropriate following the trial court’s finding of double jeopardy and subsequent order barring further prosecution). The State’s present appeal starkly contrasts with the foregoing cases. Here, the State attempted to revoke Appellee’s remaining suspended sentence based on several allegations. The Appellee stipulated to those allegations and the trial court entered an order revoking some portion of the suspended sentence. This is a far cry from an acquittal or an order expressly barring further prosecution. As a result, this appeal is dismissed.

DECISION

The Clerk of this Court is ordered to accept for filing Appellant’s Amended Brief, tendered for filing August 19, 2022. Further, this Court orders the reserved question of law DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2023), the MANDATE is ORDERED issued upon delivery and filing of this decision.

5

Click Here To Download PDF

Footnotes:

1. 22 O.S.2021, § 991b(G) ("[W]hen the suspended sentence of a person is being considered for revocation for an offense where the penalty has subsequently been lowered to a misdemeanor, the sentence shall be modified to a term that does not exceed the current maximum sentence.").
2. 22 O.S.2021, § 1053(3).
3. City of Elk City v. Taylor, 2007 OK CR 15, ¶ 7, 157 P.3d 1152, 1154 (citing White v. Coleman, 1970 OK CR 133, ¶ 11, 475 P.2d 404, 406); See also State v. Sayerwine, 2007 OK CR 1.
4. State v. Campbell, 1998 OK CR 38, ¶ 8, 965 P.2d 991, 992; See also State v. Tubby, 2016 OK CR 17, ¶ 2, 387 P.3d 918, 920.
5. State v. Robinson, 1975 OK CR 237, ¶ 8, 544 P.2d 545, 550 (overruled on other grounds in State v. Young, 1994 OK CR 25, ¶ 4, 874 P.2d 57, 58).
6. State v. Tubby, 2016 OK CR 17, ¶ 1, 387 P.3d at 920 ("[J]ury acquitted [defendants] of First Degree Felony Murder and convicted them of Accessory to First Degree Felony Murder."); City of Norman v. Taylor, 2008 OK CR 22, ¶ 1, 189 P.3d 726, 727 (appeal on a reserved question of law following an acquittal); State v. Gaytan, 1998 OK CR 71, ¶ 1, 972 P.2d 356, 357 (appeal on a reserved question of law following an acquittal after jury trial); Campbell, 1998 OK CR 38, ¶¶ 6-10, 965 P.2d at 992-93 (holding an appeal on a reserved question of law was appropriate following the trial court's finding of double jeopardy and subsequent order barring further prosecution).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 22 § 991b(G) - Revocation of Suspended Sentences
• Okla. Stat. tit. 22 § 1053(3) - Appeals

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:

• City of Elk City v. Taylor, 2007 OK CR 15, I 7, 157 P.3d 1152, 1154
• White v. Coleman, 1970 OK CR 133, I 11, 475 P.2d 404, 406
• State v. Sayerwine, 2007 OK CR 1
• State v. Campbell, 1998 OK CR 38, 8, 965 P.2d 991, 992
• State v. Tubby, 2016 OK CR 17, 2, 387 P.3d 918, 920
• State v. Robinson, 1975 OK CR 237, I 8, 544 P.2d 545, 550
• State v. Young, 1994 OK CR 25, 4, 874 P.2d 57, 58
• State v. Gaytan, 1998 OK CR 71, I 1, 972 P.2d 356, 357
• City of Norman v. Taylor, 2008 OK CR 22, I 1, 189 P.3d 726, 727