Termination Hearing

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 In an unpublished decision, the court decided to affirm the trial court's decision to terminate her from Drug Court and impose her sentences.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-2019-99

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **WILLIAM ALVIN WIMBLEY,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2019-99** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN 30 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** On April 30, 2018, Appellant entered pleas of guilty in McCurtain County District Court to the following charges: Possession of a Controlled Dangerous Substance (Count 1, Case No. CF-2016-103) and multiple counts in Case No. CF-2017-147, including another charge of Possession of a Controlled Dangerous Substance (Count 1), Possession of a Firearm After Conviction of a Felony (Count 2), and another Possession of a Controlled Dangerous Substance (Count 3). As part of a plea agreement, Appellant was admitted to the McCurtain County Drug Court Program, which stipulated that successful completion would lead to the dismissal of charges, while termination would result in a twenty-year imprisonment sentence for all four counts, served concurrently. Subsequently, on October 3, 2018, the State filed an Application to Revoke from Drug Court, citing numerous violations of the program's terms by Appellant despite receiving multiple graduated sanctions. A hearing was conducted, resulting in the Honorable Walter Hamilton, Special Judge, determining the defendant had indeed violated his performance contract, leading to his termination from the drug court program and imposition of the agreed twenty-year sentence. Appellant's sole proposition for appeal is grounded in an assertion of ineffective assistance of termination counsel, based on comments made by Judge Hamilton during the hearing regarding the sentencing implications of the termination and potential reversal by this Court. Under the legal framework established by *Strickland v. Washington*, 466 U.S. 668 (1984), to succeed on a claim of ineffective assistance, an appellant must demonstrate (1) deficient performance by counsel and (2) resulting prejudice. Appellant's claim does not find support in the record, as he fails to establish that his counsel's performance was deficient under *Strickland*'s rigorous standards. Termination of drug court participation, as outlined by Oklahoma law, requires a factual determination by the trial court regarding violations of the performance contract and the sufficiency of disciplinary sanctions. Judge Hamilton's determination hinged on whether any violations were proven by a preponderance of the evidence, rather than any alleged bias from his statements. Ultimately, Appellant has not demonstrated that Judge Hamilton abused his discretion in terminating his drug court participation. **DECISION** The termination of Appellant's participation in the McCurtain County District Court Drug Court in Case Nos. CF-2016-103 and CF-2017-147 is **AFFIRMED**. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the **MANDATE** is ordered to be issued upon the filing of this decision. **TERM OF THE COURT:** **Affirmed.** **OPINION BY:** LEWIS, P.J. **KUEHN, V.P.J.:** Concur **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur *Counsel in trial and on appeal: Hugh Hood (Appellant's Counsel), Mark Uptegrove, and others representing the State.*

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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-2018-1187

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In the Court of Criminal Appeals of the State of Oklahoma, the case reviewed is that of Pearlena Hall, who appealed the decision of the district court following her termination from the mental-health court program. On May 4, 2017, Hall entered guilty pleas in two cases related to larceny, obstructing an officer, and possession of drug paraphernalia. After entering the mental-health court program, she faced a motion to terminate her participation due to allegations of committing a new crime and various rule violations. The court reviewed the appeal for any abuse of discretion regarding the termination. The decision to terminate a defendant from a mental-health court must uphold minimum due process standards, which includes proper notice of violations, an opportunity to be heard, and the ability to confront witnesses. Hall argued that her due process rights were violated because the State did not file a new application for removal and thus did not provide adequate notice about the allegations against her. However, the court found that Hall was aware of the allegations, which she confessed to during the proceedings. The judge provided opportunities for her to comply with program requirements, and a delay in sentencing that favored Hall did not equate to a due process violation. The court highlighted that she could not complain about delays she acquiesced to during the processes. Ultimately, the court affirmed Hall's termination from the mental-health court, ruling that her procedural rights had been sufficiently met. Thus, her appeal was denied, and the termination order was upheld. The court's opinion was delivered by Judge Rowland, with Judges Lewis, Kuehn, Lumpkin, and Hudson concurring with the decision. The mandate was ordered as per Oklahoma Court rules, and the relevant parties were identified for representation. For further reference, you can view the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1187_1734785215.pdf).

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F-2018-375

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In OCCA case No. F-2018-375, Jones appealed his conviction for multiple offenses including possession of controlled substances and public intoxication. In a published decision, the court decided to affirm the termination of Jones from Drug Court and his sentencing, while also remanding a separate charge for correction regarding sentencing length for public intoxication. One judge dissented. Jones had multiple guilty pleas and was given the chance to participate in a Drug Court program with the understanding that if he successfully completed it, his charges would be dropped. However, if he failed, he would face prison time. Although he had some chances and was sanctioned when he did not adhere to the program, he repeatedly tested positive for drugs, which caused the state to move for his termination from the program. During the hearings, witnesses from the state presented evidence that showed Jones had a new arrest for driving under the influence of alcohol and had failed multiple drug tests. Jones's defense argued that he had made progress and changed for the better, but the judge decided to terminate him from the Drug Court program based on the evidence of his continued drug use and new charges. The court found that his actions justified the termination. Additionally, the court recognized an error in Jones's sentencing for public intoxication because it exceeded the maximum allowed by law. The court ordered that part of the case be sent back to correct the sentence. The final decision was to uphold the termination from Drug Court but allow a correction on the public intoxication charge's sentencing in a separate order.

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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 2018-0398

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **STEVE GRAYSON FALEN, Appellant,** **V.** **THE STATE OF OKLAHOMA, Appellee.** **No. F 2018-0398** **May 23, 2019** **SUMMARY OPINION** **JOHN D. HADDEN LEWIS, PRESIDING JUDGE:** Appellant, Steele Grayson Falen, was charged on March 14, 2013, in Beckham County District Court Case No. CF-2013-106 with various offenses including Count 1 - Unlawful Possession of Controlled Drug with Intent to Distribute (felony), Count 2 - Possession of Controlled Dangerous Substance (misdemeanor), and Count 3 - Unlawful Possession of Drug Paraphernalia (misdemeanor). Following a guilty plea on January 23, 2014, he received a ten-year deferred sentence for Count 1 and one year for Counts 2 and 3, all to run concurrently, with credit for six months served in treatment. Later, on November 12, 2014, Appellant faced additional charges in Case No. CF-2014-446 involving burglary-related offenses. Consequently, the State sought to accelerate his deferred sentences linked to the new charges. Under a plea agreement, Appellant joined the Beckham County Drug Court Program on June 23, 2015, where he would face a significant sentence if he failed to complete the program successfully. The State filed to terminate Appellant from the Drug Court on February 21, 2018, citing early exit from treatment and subsequent arrest. After a revocation hearing on April 6, 2018, he was sentenced to 20 years for Count 1 and associated consequences for Counts 2 and 3 from both cases with sentences ordered to run concurrently. Appellant now appeals the termination from Drug Court, asserting that the trial court abused its discretion. However, findings indicate no abuse of discretion occurred as the Drug Court Act emphasizes the judge’s authority to revoke participation when conduct warrants termination. **DECISION** The termination of Appellant from the Beckham County Drug Court Program in both Case Nos. CF-2013-106 and CF-2014-446 is **AFFIRMED**. **APPEARANCES** *Counsel for Defendant:* J. Cade Harris, Appellate Defense Counsel Nicollette Brandt, Counsel *Counsel for the State:* Gina R. Webb, Assistant District Attorney Mike Hunter, Attorney General Theodore M. Peeper, Assistant Attorney General **OPINION BY:** LEWIS, P.J. *KUEHN, V.P.J.: Concur in Results* *LUMPKIN, J.: Concur* *HUDSON, J.: Concur* *ROWLAND, J.: Concur*

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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-2008-531

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In OCCA case No. F-2008-531, Jim Evans appealed his conviction for possession of a controlled drug and embezzlement. In an unpublished decision, the court decided to affirm his termination from Drug Court and vacate part of his sentence. One judge dissented. On November 29, 2006, Jim Evans pleaded guilty to two crimes: possession of a controlled drug after having a felony conviction, and embezzlement. The court sentenced him to five years for possession and one year for embezzlement, with both sentences running at the same time. He could avoid serving this time if he successfully completed a Drug Court program, but if he failed, he would have to serve his sentences. On May 22, 2008, Evans was taken out of the Drug Court program, leading to his appeal. He claimed three main issues: First, during his hearing, he wasn't properly confronted with a witness against him, and his lawyer let him say things that made him look guilty. Second, he thought the court made a mistake by considering evidence that shouldn’t have been allowed. Third, he argued the court couldn't extend his probation past his original sentence. About the first two points, Evans said his lawyer should have stopped the officer from speaking about what another person said. He contended this wasn't fair. The court examined his claims and found that the rights in Drug Court are not as extensive as in normal criminal trials. It noted that some statements made by the officer were acceptable under the law. For the last point, Evans pointed out that his one-year sentence had ended, and the court didn’t have the authority to give him more time. The State, which was appealing against him, admitted that it was a mistake to extend his probation beyond his original sentence. Ultimately, the court agreed with Evans on his last point and decided to change the records by vacating the one-year sentence for embezzlement. However, the court also confirmed the decision to remove Evans from the Drug Court program.

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F-2008-963

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In OCCA case No. F-2008-963, Richard Lloyd VanMeter appealed his conviction for Driving Under the Influence of Intoxicating Liquor-Second Offense and multiple new charges. In an unpublished decision, the court decided to reverse the termination of his participation in the DUI/Drug Court Program and vacate his convictions, instructing to reinstate him in the program based on the conditions of his plea agreement. One judge dissented.

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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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