Kay County

F-2018-1087

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This document is a summary opinion from the Court of Criminal Appeals of the State of Oklahoma, addressing the appeal of Spencer Joe Cuccaro regarding his termination from the Kay County Drug Court and subsequent sentencing. ### Key Points: 1. **Case Background**: - Appellant Spencer Joe Cuccaro was placed in the Kay County Drug Court program on June 22, 2017, following a plea agreement that stipulated the conditions of his sentencing based on his performance in the program. - Cuccaro was involved in multiple cases (CF-2016-561, CF-2011-74, CF-2008-353) linked to drug offenses and was under specific probationary requirements. 2. **Allegations Against Cuccaro**: - The State filed a petition to remove Cuccaro from Drug Court, citing new criminal charges (including trafficking in illegal drugs), non-compliance with counseling requirements, and outstanding fees. - Evidence presented included testimonies from law enforcement regarding drug possession during a traffic stop and at the jail. 3. **Termination Hearing**: - At the termination hearing, evidence presented indicated that Cuccaro had violated the terms of his drug court agreement by committing new offenses and failing to meet his counseling and payment obligations. - The trial judge, David R. Bandy, found sufficient evidence to terminate Cuccaro from the Drug Court program. 4. **Appeal Propositions**: - **Proposition I**: Cuccaro claimed his no contest pleas were coerced. - **Proposition II**: He alleged the trial court failed to follow mandatory Drug Court procedures. - **Proposition III**: He contended the trial judge abused discretion in terminating him. - **Proposition IV**: He argued that the sentencing was excessive. 5. **Court's Analysis**: - The court found that Proposition I was not a suitable subject for this appeal and should be addressed in a separate certiorari appeal regarding the plea. - Proposition II also fell outside the scope of the termination appeal, which is to assess the validity of the termination order. - For Proposition III, the court upheld that the decision to terminate Cuccaro was within the judge’s discretion, consistent with the evidence of non-compliance and new criminal activity. - Proposition IV regarding sentencing was similarly ruled to be outside the appeal context, advising Cuccaro to raise such claims in the separate certiorari appeal. 6. **Decision**: - The court affirmed the termination order, emphasizing the trial judge's proper authority and the sufficiency of the evidence for termination from Drug Court. ### Conclusion: The Court of Criminal Appeals affirmed the District Court's order to terminate Spencer Joe Cuccaro from Drug Court and advised him to pursue any excessive sentence claims separately. The decision reflects adherence to legal standards concerning plea agreements, drug court compliance, and the discretion exercised by trial judges in such matters. For more details, you can access the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1087_1734789881.pdf).

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F-2018-485

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In OCCA case No. F-2018-485, Scott Thomas Stout appealed his conviction for First Degree Rape and Sexual Battery. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. Scott Thomas Stout was found guilty by a jury in Kay County for forcing himself on a long-time friend and for sexual battery. The jury did not find him guilty of two other charges of Rape by Instrumentation. The judge sentenced him to twenty years for the rape charge and four years for the sexual battery charge, which he must serve consecutively. Furthermore, he must serve at least 85% of his sentence before being considered for parole. Stout raised two main points in his appeal. First, he argued that the prosecutor acted improperly and that these actions denied him a fair trial. Second, he claimed that the trial court made a mistake by allowing the prosecution to call a witness in the middle of his defense to present evidence. In the first point, Stout pointed out three specific issues with the prosecutor's conduct. He said the prosecutor tried to make the jury feel sorry for the victim, asked questions that seemed to give opinions on the victim's credibility, and used first names for witnesses inappropriately. The court looked at all of the evidence and determined that these actions did not distract from the overall fairness of the trial. The jury acquitted Stout on two of the charges and recommended lighter sentences for the others. Therefore, the court ruled that Stout did not experience unfairness due to prosecutorial misconduct. Regarding the second point in his appeal, Stout argued that it was wrong for the prosecutor to cause the defense to stop its case to bring in a detective to verify some evidence. The court noted that the prosecutor's interruption was related to a question raised by Stout's own lawyer and that the trial judge had acted fairly in allowing it. The judge ruled that this did not disrupt the trial's fairness. In conclusion, the court found no errors in how the trial was conducted and affirmed Stout's conviction, meaning the original decision stood.

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F-2018-945

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CASE SUMMARY:** **Appellant:** Carey James Buxton **Appellee:** The State of Oklahoma **Case Numbers:** CM-2014-358, CF-2014-578, CF-2017-5 **Opinion Date:** August 8, 2019 **Judge:** Lumpkin --- **BACKGROUND:** Carey James Buxton appealed the termination of his participation in the Drug Court program and the imposition of sentencing by the District Court of Kay County, presided by Judge David Bandy. Buxton had entered pleas of no contest to multiple charges, including drug possession and burglary, and was sentenced to a Drug Court program where successful completion would lead to dismissal of the charges. However, after the State filed applications for his removal from the Drug Court program due to non-compliance, a hearing was conducted on this matter. The judge ultimately decided to terminate Buxton from the program and impose the sentencing terms outlined in the plea agreement. --- **PROPOSITION OF ERROR:** Buxton asserts that the trial court abused its discretion in terminating him from the Drug Court program. --- **ANALYSIS:** 1. **Standard of Review:** The decision to revoke or terminate a Drug Court participant lies within the trial judge's discretion. An abuse of discretion is defined as a clearly erroneous conclusion. 2. **Contentions by Appellant:** - Buxton argues that the court did not assess whether disciplinary measures short of termination would suffice. - He also claims that removal for cheating on drug tests is against Drug Court laws. 3. **Court Findings:** - The court ruled that violations needed to be proven by a preponderance of the evidence. Buxton repeatedly violated the terms of his Drug Court contract despite receiving multiple jail sanctions. - The appellate court noted that termination was not an automatic consequence of drug test failures; the trial court considered all relevant factors before making its decision. 4. **Conclusion:** - The appellate court determined that the trial court’s decision was supported by the evidence and was not an abuse of discretion. Buxton's proposition of error was denied. --- **DECISION:** The order terminating Buxton from the Drug Court and proceeding with sentencing as per the plea agreement is **AFFIRMED**. The mandate is to be issued immediately following the filing of this decision. **APPEARANCES:** - **For Appellant:** Jarrod Stevenson and Jeremy Stillwell (Appellate Defense Counsel) - **For Appellee:** Brian Hermanson (District Attorney), Mike Hunter (Oklahoma Attorney General), Tessa L. Henry (Assistant Attorney General) --- **OPINION BY: LUMPKIN, J.** - **Concur:** Lewis, P.J.; Kuehn, V.P.J.; Hudson, J.; Rowland, J. --- For further details, the complete opinion is available in PDF format: [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-945_1734875235.pdf).

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F-2018-83

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In OCCA case No. F-2018-83, the appellant appealed his conviction for terminating his participation in a drug court program. In an unpublished decision, the court decided to affirm the termination of the appellant's participation in the Kay County Drug Court Program. One judge dissented. The case began with the appellant being charged with domestic abuse, followed by several other charges which led to his participation in the drug court program. He had previous sentences but entered a plea agreement that allowed him to avoid immediate incarceration if he completed the program successfully. However, after multiple instances of non-compliance, the state requested to terminate him from the program. During a hearing, the judge evaluated whether the appellant had violated the terms of his performance contract in the drug court. The judge determined that he had. The appellant argued that the judge should have given him more chances to comply with the rules of the program, but the judge concluded that the appellant's actions warranted termination. The court ultimately agreed with the judge's decision, stating that he had not abused his discretion in terminating the appellant’s participation in the drug court program. The termination was deemed appropriate given the appellant's repeated violations.

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C-2018-648

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In OCCA case No. C-2018-648, Denisa Dawn Duvall appealed her conviction for domestic assault and battery in the presence of a minor. In a published decision, the court decided to grant her request for a new hearing to withdraw her plea. One judge dissented. Duvall was charged with a misdemeanor and decided to enter a plea of no contest. The court accepted her plea and gave her a deferred sentence, which included supervision and counseling. Later, Duvall filed a request to withdraw her plea, saying she wanted an attorney to help her. However, when the court held a hearing, it was unclear if she was offered a lawyer or if she had decided to represent herself. Duvall claimed that she didn’t understand the charges or the meaning of her plea when she first entered it. The court didn’t allow her a lawyer during the hearing to withdraw her plea, which is against her rights under the Constitution. The court recognized that Duvall should have had legal help during that critical moment. The State agreed that Duvall didn’t receive a fair process because she was not represented by counsel. The court decided that they needed to redo the hearing where Duvall could have a lawyer present, and she should be allowed to explain why she wants to withdraw her plea. The court ordered that Duvall be given a new chance to file a motion for withdrawing her plea with her new lawyer and scheduled an evidentiary hearing on that motion. If her request to withdraw her plea is denied again, her lawyer must help her with an appeal. The decision from the court resulted in Duvall getting a new hearing, where she can properly address her plea's withdrawal with the support of an attorney.

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S-2016-169

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In OCCA case No. S-2016-169, Patrick Lee Walker appealed his conviction for distributing a controlled dangerous substance (methamphetamine) within 2,000 feet of a school. In an unpublished decision, the court decided to affirm the trial court's ruling that granted Walker's motion to quash and dismissed the case. One judge dissented. The case began when Walker was charged in Kay County District Court with distributing methamphetamine after a controlled purchase was made by a confidential informant. A deputy had coordinated this controlled buy and testified that the informant bought meth from Walker at a location in Kay County. The informant was searched before the transaction to ensure she had no drugs. After meeting Walker, they drove together to Osage County where the exchange happened. There was a lack of evidence presented about the exact location where the drugs were handed over, which was crucial to prove that the crime occurred within the required distance of a school. During the preliminary hearing, the judge decided that while the distribution started in Kay County, there wasn't enough evidence to show that the drugs were handed over in that county or within 2,000 feet from a school. Because of this, the judge dismissed the case when Walker's defense claimed that the evidence was insufficient. The court discussed whether the trial court had made an error in dismissing the case. The main two arguments from the State's appeal were that the district court wrongly decided it didn't have the required evidence for venue and that it unfairly denied the State's request to amend the Information (the official charge). The court explained that the State must show probable cause that a crime happened and clarify where that crime occurred. They noted that although it was shown that a crime likely happened, it was not in the form correctly charged due to not proving all essential elements of the offense, as required under Oklahoma law. While the trial court's decision to dismiss the case was recognized as legally incorrect, it did not lead to a different outcome because the State did not ask to amend the charge during the hearing. Therefore, even though the lower court may have acted without the right understanding of the law regarding amendments, it did not influence the decision because of the procedural issues involved. The court ultimately upheld the dismissal of the charges against Walker, agreeing with the lower court's conclusion that there was insufficient evidence of the crime occurring within the jurisdiction required by law. The ruling was affirmed, and thus the case remained closed without further proceedings.

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F-2006-826

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In OCCA case No. F-2006-826, Bobby M. Ellis appealed his conviction for multiple crimes including First Degree Rape, Lewd Molestation, and Preparing Child Pornography. In an unpublished decision, the court decided to affirm the conviction on most counts while reversing one count related to child pornography. One judge dissented regarding this reversal. Bobby M. Ellis faced serious charges in Kay County for several crimes against his two young step-daughters. The jury found him guilty of these crimes. The punishment for each count was severe, amounting to a total of 210 years in prison, but the sentences were set to be served one after the other, which would keep him in prison for a very long time. During the appeal, Ellis argued several points. He claimed that it was unfair to punish him twice for the same offense regarding the child pornography charge. He also pointed out that the judgment did not clearly show his exact convictions, and he felt that the overall sentences were too harsh. The court examined Ellis's arguments and ultimately agreed with him on some points. They found that convicting him for preparing child pornography in two counts for a single video tape was indeed unfair, so they decided to reverse that specific count and instructed for it to be dismissed. For the other counts, the court affirmed the judgments made by the jury. The court also acknowledged that there was a mislabeling in the judgment regarding one of the charges and agreed that it needed to be corrected to appropriately reflect the actual crime committed. However, they did not reduce the sentencing significantly since the crimes were very serious and Ellis showed no remorse for his actions. In summary, the court upheld most of the convictions and sentences but took action to correct and dismiss one charge involving child pornography based on double jeopardy issues. The judge who dissented felt that all charges should be upheld since each incident was separate.

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F-2005-649

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In OCCA case No. F-2005-649, Alfred Gene Ryan appealed his conviction for First Degree Rape and Lewd Molestation. In an unpublished decision, the court decided to affirm his convictions but modified the sentences to run concurrently instead of consecutively. One judge dissented in part. Ryan was found guilty in the District Court of Kay County, where a jury sentenced him to 20 years in prison for the rape charge and 10 years for the molestation charge, along with fines for both counts. The key points of his appeal focused on several alleged errors during his trial, including issues related to custody status during police questioning, hearsay testimony, the trial court’s handling of jury instructions, the admission of other crimes evidence, and claims of ineffective counsel. The court reviewed all the claims made by Ryan, including whether the trial court made mistakes by allowing certain evidence or testimony, and whether he received a fair trial. After considering the arguments and the entire record, the court did not find any major errors that would require a reversal of his conviction. The court stated that Ryan was not in custody when he spoke to law enforcement, which meant that his statements to them were properly admitted. They also ruled that the hearsay testimony from child victims was allowable and did not violate Ryan’s rights. The court acknowledged that there were instances of improper evidence admitted concerning other crimes but determined that these did not significantly impact the verdict concerning his guilt. Regarding jury instructions, the court agreed that Ryan should have been informed about the 85% rule, which might have affected the length of time he would serve. Therefore, they modified his sentences to run concurrently instead of consecutively, leading to a total time served being lessened. Overall, while the court affirmed the convictions, it recognized certain shortcomings in how the trial was conducted which justified modifying how the sentences were structured.

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