Okla. Stat. tit. 22 § 471.7(E)

F-2019-149

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In OCCA case No. F-2019-149, Kimberli Sue Dunham appealed her conviction for multiple drug-related offenses. In an unpublished decision, the court decided to affirm the trial court's decision to terminate her from Drug Court and impose her sentences. One judge dissented. Dunham had been placed in the Delaware County Drug Court program after pleading guilty to several drug-related charges. The program was intended to help her recover from substance abuse. According to her agreement, if she was successful in the program, the charges would be dismissed. However, if she failed, she would face prison time. During her time in Drug Court, Dunham had several violations, including testing positive for methamphetamine. After admitting to more violations, the State sought her removal from the program. In a hearing, evidence of Dunham’s past violations was presented. The judge decided to terminate her from the program, leading to her appeal. In her appeal, Dunham claimed the termination was improper because she was sanctioned for previous violations. She also argued that the court did not follow proper procedures as required by the Oklahoma Drug Court Act, which aims to support individuals in recovery. Dunham claimed that a relapse should not automatically lead to termination and that the court should have used progressively increasing sanctions instead. The court reviewed these claims and found that Dunham had indeed admitted to new violations that justified her termination. Her request to consider her actions as mere relapses was denied, as the judge believed more severe action was necessary to maintain the integrity of the Drug Court program. Lastly, Dunham argued that she was misinformed about her rights to withdraw her guilty pleas. The court agreed that she should have been informed of her rights but ruled that her termination and conviction would still stand. The court upheld the trial court's decision but noted that it should have properly advised Dunham regarding her rights, allowing her the option to appeal her plea. Thus, while her conviction was confirmed, the case was remanded to correct the error about her rights.

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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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RE-2018-30

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The case presented involves Marty Wayne Green, who appealed the termination of his participation in the Seminole County Anna McBride Court Program after a series of violations related to his plea agreement and mental health treatment. Here's a summary of the court's findings and rulings: 1. **Background**: Green pleaded guilty to Domestic Assault and Battery by Strangulation and was sentenced to a suspended seven-year prison term. He entered the Anna McBride Court Program as part of his sentence. 2. **Violation Allegations**: The State filed a motion to revoke his suspended sentence, alleging that Green had failed to comply with program requirements, including not attending counseling sessions, testing positive for substances, and committing new offenses. 3. **Hearing Outcome**: After hearing the motion, District Judge George W. Butner terminated Green's participation in the mental health court program based on these violations and sentenced him to the full term of imprisonment. 4. **Propositions on Appeal**: - **Proposition I**: Green argued he should be credited for time served. The court ruled against this, clarifying that since he was not sentenced under the Oklahoma Community Sentencing Act, he had no entitlement to such credit. - **Proposition II**: This proposition did not challenge the validity of the termination order and was deemed improperly before the court. It did not affect the legality of the termination itself. - **Proposition III**: Green contended that the trial court abused its discretion by not seeking lesser sanctions before terminating his participation. The court found that the judge had discretion to terminate the program due to Green's repeated violations and potential danger to himself and others. 5. **Conclusion**: The court affirmed the termination of Green's participation in the Anna McBride Court Program, ruling that the judge acted within his discretion based on the facts presented and the violations of the program. The final decision upheld the termination, emphasizing the importance of compliance with mental health treatment programs and the discretion of judges in such cases. The ruling highlights the responsibility of participants in such programs to adhere to established agreements and the potential consequences of failing to comply.

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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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F-2017-1270

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In OCCA case No. F-2017-1270, Bryan James Abner appealed his conviction for several offenses. In an unpublished decision, the court decided to affirm the decision to terminate him from drug court and sentence him according to the plea agreement. One judge dissented. Bryan James Abner was involved in multiple criminal cases related to theft, guns, drugs, and burglary. He was given the chance to join a Drug Court program to help him with his drug addiction instead of going straight to prison. However, if he did not follow the rules of the program, he would be sentenced for his crimes. Abner did well in the Drug Court for the first six months, but then he started to have problems. He tested positive for methamphetamine several times, had legal troubles, and missed appointments. The State's attorney asked to terminate him from the Drug Court because of these issues. During the hearing, witnesses testified about Abner's behavior. One officer found drugs on him, and a supervisor explained that Abner had many chances to improve but did not make enough progress. Abner's counselor testified that he had learned from some difficult experiences, including the death of his son, and asked for another chance in the program. The judge decided against Abner, saying that despite what the counselor said, Abner's problems continued. She noted that he had broken the rules of the Drug Court many times and had not responded to the chances he had been given. In summary, the court ruled that Abner needed to be removed from the Drug Court program for not following the rules, and he was sentenced based on his plea agreement. The court found that the evidence supported this decision, and there was no abuse of discretion by the judge.

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F-2018-145

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In OCCA case No. F-2018-145, Davis appealed his conviction for possession of a controlled dangerous substance (cocaine). In an unpublished decision, the court decided to affirm his termination from the Drug Court program. One judge dissented. On June 23, 2015, Davis pleaded guilty to possessing cocaine. He was given a chance to avoid prison by being put on probation for five years. However, in December 2016, the state said Davis was not following the rules of his probation, leading to his case being taken to Drug Court in March 2017. Drug Court was meant to help him, but it also had strict rules he had to follow. If he completed the program successfully, he could avoid serious penalties. In January 2018, the state said Davis had broken the rules of the Drug Court and asked to have him removed from the program. After a hearing, the judge agreed, and Davis was taken out of Drug Court. Davis appealed this decision, saying the state did not prove he should be terminated and that his mental health issues were not considered. However, the court found no evidence that further sanctions would have helped him follow the rules. Throughout his time in Drug Court, he repeatedly missed appointments and failed to participate, which meant he was not eligible for further leniency. On the issue of his mental health, Davis did not present any evidence in court to explain how his mental health affected his ability to comply with the Drug Court program. Therefore, the court did not find this argument convincing. Ultimately, the court decided that the judge did not make a mistake in removing Davis from Drug Court, and his appeal was denied.

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F-2017-1053

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In OCCA case No. F-2017-1053, Greenwood appealed her conviction for drug-related offenses. In an unpublished decision, the court decided to affirm her termination from the Drug Court program but required the lower court to remove a $500 fine that had been improperly assessed. One judge dissented. The case began when Greenwood, on October 13, 2015, agreed to participate in the Drug Court program after pleading no contest to a charge of possessing methamphetamine and guilty to having drug paraphernalia. If she successfully completed the program, her sentence would be deferred, meaning she wouldn't have to serve time unless she failed to meet the program requirements. However, on August 31, 2017, the State asked to terminate Greenwood from the Drug Court program. The judge held a hearing where they discussed her progress. The judge decided to end her participation because Greenwood had not been following the rules of the program. As a result, she was sentenced according to her plea agreement, but the judge also added a $500 fine. Greenwood did not agree with this fine and argued that it was illegal because it wasn't part of her original plea deal. She also claimed it wasn't fair to terminate her from the program since she felt that the court hadn't tried hard enough to help her comply with the program's requirements through smaller penalties before jumping to termination. The court looked at her arguments. They found that the fine was indeed not allowed because of the rules surrounding Drug Courts, which require that once admitted, a judge can't change the conditions of someone's plea agreement. Since Greenwood's agreement stated she wouldn't have a fine, the court ordered the lower court to remove that $500 fine. As for her termination from the Drug Court, the judges looked at the evidence that showed she had repeatedly not followed the rules. There was testimony showing she missed meetings, didn’t show up for drug testing, and was not engaging with the services offered to her. The court found that while Greenwood believed she wasn't given enough help, it was ultimately her responsibility to follow the rules. In the end, the court decided to keep the termination of Greenwood from the Drug Court but mandated that the fine be taken away. The ruling confirmed that the Drug Court successfully supported the justice system while also highlighting the importance of personal responsibility in such programs.

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F 2017-0031

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In OCCA case No. F 2017-0031, Heath Saxon Ford appealed his conviction for driving a motor vehicle while under the influence of alcohol and unauthorized use of a vehicle, both felonies. In a published decision, the court decided to reverse his termination from the Drug Court Program and remand the case for reinstatement into a Drug Court program, preferably in another county. No one dissented. Heath Saxon Ford was charged with multiple offenses in McCurtain County. He pleaded guilty to two of them and entered a Drug Court Program, agreeing to specific conditions. If he didn’t follow these conditions, he could be sentenced to twelve years in prison. The state wanted to kick him out of the Drug Court Program, saying he violated his agreement by having a bad drug test. At a hearing, a witness said something about the drug test results, but she didn’t perform the test herself nor was the actual test introduced as evidence. Ford argued that this was not fair and that they used hearsay, which is when someone talks about what another person said instead of providing direct evidence. The court agreed that the hearsay could not be the only reason for terminating Ford from the program and that they didn’t show strong enough evidence to prove he violated the terms. There were also concerns about how the Drug Court was being run, suggesting possible impropriety. Because of these issues, the court decided to reverse the decision to end Ford's participation in the Drug Court Program and ordered that he be reinstated, possibly in a different county's program.

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RE-2011-710

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In OCCA case No. RE-2011-710, Jermaine Richard Newton appealed his conviction for two counts of Assault with a Dangerous Weapon. In an unpublished decision, the court decided to modify the revocation order of his suspended sentences to time served. One judge dissented. Newton had originally pleaded guilty to the charges and was given a ten-year suspended sentence, which meant he would not go to prison right away as long as he followed certain rules. One of the rules was that he could not break any laws. Later, he was accused of violating a protective order that had been put in place to keep him away from a specific person. The court examined whether there was enough evidence to show that Newton had broken the order. They found that there was enough proof that he had violated the order by being near the person it was intended to protect. The court also looked at whether the decision to revoke his suspended sentences was fair or too harsh. The judges noted that he was young and hadn't been in trouble before this violation. They concluded that sending him to prison for the full ten years was not necessary since he hadn't done anything very dangerous lately. In the end, the court decided he should not serve the full ten years but should instead be given a second chance, and they ordered that he should be returned to probation. The judges who agreed with this decision believed it was a fair outcome. However, one judge disagreed and felt that the original decision to revoke his suspended sentences should stand.

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C-2011-875

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In OCCA case No. C-2011-875, #Edgar Lee Ussery appealed his conviction for #possession of a controlled dangerous substance with intent to distribute. In an #unpublished decision, the court decided #to deny the petition for a writ of certiorari. #No one dissented. In this case, Edgar Lee Ussery entered a guilty plea to two counts of possession with intent to distribute drugs. He did this after a previous felony conviction. By working with the Drug Court program, he hoped to avoid a long prison sentence. However, if he did not complete the program, he faced up to twenty years in prison for each count. Later, the state asked to terminate Ussery's participation in the Drug Court because of new felony charges he faced. The judge agreed, and Ussery was sentenced to twenty years in prison for each count, served at the same time. Ussery wanted to take back his guilty plea, so he asked the court to let him withdraw it. He argued that the court wrongly kicked him out of Drug Court. He also claimed that he didn’t fully understand what he was pleading to at the time. The court looked at these claims. They found that Ussery knew what he was agreeing to when he made his plea. They also decided that the judge wasn't wrong to remove him from Drug Court based on his new felony charges. However, Ussery pointed out some mistakes in the process. He argued that the judgment didn’t show he got credit for the time he had already served and incorrectly said he had two previous felony convictions instead of one. The court agreed that his sentence needed some correction to reflect he would get credit for time served and recognized that only one felony conviction was used for his case. They sent the case back to fix these issues but left the other parts of Ussery’s sentence the same. In conclusion, the court denied his request to withdraw his plea, but they did agree to fix some details about how his conviction was recorded.

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F-2008-289

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In OCCA case No. F-2008-289, the appellant appealed his conviction for unlawful possession of a controlled drug, marijuana, and paraphernalia. In an unpublished decision, the court decided to reverse the termination of the appellant from the Drug Court Program, agreeing that the trial court abused its discretion in the decision, and reinstated the appellant to the Drug Court Program. One judge dissented. The case involved the appellant, who had entered a Drug Court Program after pleading guilty to drug charges. Initially, the appellant struggled with substance abuse but made significant progress over the years, living a more stable life and regaining custody of her children. However, the situation changed when she was arrested for driving under the influence after having two drinks on a night out. At a court hearing, her termination from the Drug Court Program was discussed. Some witnesses testified that the appellant's actions should not classify as a relapse in her recovery process since she had remained sober for over 400 days before the incident. They argued that even though she made a poor choice by drinking and driving, it did not warrant her removal from the program, especially since she showed great progress in her life. However, the court disagreed with the trial judge's decision to terminate the appellant. The appellate court found that the termination was not justified since the overall evidence suggested that the appellant could successfully complete the Drug Court Program despite the DUI incident. The court emphasized the importance of allowing participants ample time to change their behaviors and succeed in treatment. As a result, the appellate court reversed the termination order and instructed the lower court to reinstate the appellant in the Drug Court Program, allowing her to continue working toward completing her treatment plan.

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F-2006-850

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In OCCA case No. F-2006-850, Jeffrey Airehart appealed his conviction for drug-related offenses. In a published decision, the court decided to reverse his termination from the Drug Court program and instructed that he be reinstated. One judge dissented. Jeffrey Airehart was removed from a Drug Court program due to several positive drug tests. The judge had previously sanctioned him for these tests by imposing short jail terms. Airehart claimed that terminating him was unfair because he had already faced penalties for the same violations. He argued that this violated laws meant to protect individuals from being punished multiple times for the same issue, known as double jeopardy. The court agreed with Airehart's first argument, stating that the Drug Court system is designed to help individuals recover by allowing for relapses and providing a structured way to deal with them rather than terminating their participation after violations. Since Airehart had already been punished, the court ruled that it was not right to terminate him again for those same actions. Regarding his second argument, Airehart said that he did not get proper notice of the grounds for his termination, which made it hard for him to prepare his defense. The court found that while the State could consider his overall performance in the program to decide on termination, the specific terminations were based on violations for which he had been already punished. Therefore, the additional reasons the State brought up were not the basis for his termination. Ultimately, the court ordered that Airehart be reinstated to the Drug Court program and that previous jail sentences related to his termination be canceled, emphasizing the importance of encouraging rehabilitation rather than simply punishing individuals who struggle with addiction.

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F-1999-1652

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In OCCA case No. F-99-1652, Mickey Lee Cosar appealed his conviction for Possession of Marijuana with Intent to Distribute and Unlawful Possession of Paraphernalia. In a published decision, the court decided that his termination from the Drug Court program was not handled correctly and mandated a new termination hearing with proper notice. One judge dissented. The case began when Cosar entered a blind plea to the drug charges in September 1998 as part of a condition to join the Drug Court program, which allows individuals to receive treatment instead of immediate punishment. However, during the process, certain legal requirements were not met. A hearing in April 1999 determined that Cosar should be removed from the Drug Court program, which led to a sentencing hearing in May 1999 where he was sentenced to life in prison despite not having any prior serious convictions. On appeal, Cosar argued that he was denied due process because he was improperly arrested, was not given proper notice of the charges against him, and was not presented a fair hearing before a judge. He contended that his sentence was too harsh given his background and that it was improperly based on unproven allegations. The court found merit in Cosar’s claims. It noted that he did not receive written notice of the termination hearing, which is necessary, and that his due process rights were violated. The court emphasized that to follow proper legal procedures, a new hearing must be held where Cosar would receive notice of the reasons for his termination from the Drug Court. This notice must be clear enough for him to prepare a defense. Moreover, the court stated that the sentencing hearing was flawed because the judge considered improper evidence and unsworn testimony. The judge based the harsh life sentence on matters unrelated to the charges for which Cosar was convicted, including knowledge of allegations of a rape and murder that were not properly vetted in court. The decision noted that a judge should only consider evidence presented during the formal hearing process, which did not happen here. The court’s ruling ordered a new termination and, if necessary, a new sentencing hearing to be conducted by a different judge who would base the decision solely on the evidence presented appropriately. The conclusion stressed the importance of following the law to preserve the integrity of the judicial process, particularly within programs aimed at rehabilitating offenders. In summary, Cosar’s appeal highlighted the need for proper legal procedures in termination and sentencing hearings, emphasizing the rights of defendants to fair treatment under the law.

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