Alexander v. State

• Decision Date: 30 May 2002
• Docket Number: No. F-2000-472.,F-2000-472.
• Citation: 48 P.3d 110,2002 OK CR 23
• Parties: L.B. ALEXANDER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

48 P.3d 110

2002 OK CR 23

L.B. ALEXANDER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-2000-472.

Court of Criminal Appeals of Oklahoma.

May 30, 2002.

Rehearing Denied August 15, 2002.

ACCELERATED DOCKET ORDER

¶ 1 Appellant was charged with Possession of a Firearm, After Former Conviction of a Felony, in Case No. CF-98-163, and pled guilty to a reduced misdemeanor charge. Appellant was sentenced to either complete Drug Court or serve a one (1) year sentence. In Case No. CF-99-35, Appellant was charged with Possession of a Controlled Dangerous Substance (CDS) — Methamphetamine, pled guilty, and was sentenced to twenty (20) years or completion of Drug Court. Appellant was also charged, in Case No. CF-99-40, with Possession of CDS — Methamphetamine, pled guilty and was sentenced to twenty (20) years or the completion of Drug Court.¹ All of these cases were filed in the District Court of Hughes County. Appellant was sentenced to Drug Court for each of the violations, and his Drug Court treatment began on May 6, 1999.

¶ 2 On May 8, 2000, the State filed an application to terminate Appellant from Drug Court, alleging five (5) violations of the terms of his Drug Court agreement. A hearing was held April 4, 2000, and Appellant was terminated from Drug Court. On April 12, 2000, the District Court sentenced Appellant as follows:

CF-98-163 One year suspended sentence revoked in full CF-99-35 Twenty (20) years for Unlawful Possession of CDS CF-99-40 Ten (10) years for the Unlawful Possession of CDS One (1) year for Unlawful Possession of Paraphernalia One (1) year for Attempted Escape From an Officer

Sentences in all of the cases were ordered to run concurrently. From these Judgments and Sentences, Appellant appeals.

¶ 3 On appeal Appellant raises five propositions of error:

1. The trial court abused its discretion in terminating the Appellant from Drug Court by not recognizing the relapses and restarts that commonly occur with drug addicts as required by 22 O.S. 1998 § 471.7;

2. Due process was denied to the Appellant because the Drug Court judge failed to address the requirements set forth in Hagar v. State;

3. The evidence does not support the allegations set forth in the State's Application to Terminate;

4. The Drug Court Judge removed himself as an adjudicatory body when he became a participant in the proceeding, thus infringing on the Appellant's right to a fair and impartial trial; and

5. The Court sentenced the Appellant after considering testimony and facts not admitted into evidence.

¶ 4 Pursuant to Rule 11.2(A)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2000), this appeal was automatically assigned to the Accelerated Docket of this Court. See also, Hagar v. State, 1999 OK CR 35, ¶ 12, 990 P.2d 894, 898. The propositions or issues were presented to this Court in oral argument October 11, 2001, pursuant to Rule 11.2(F). At the conclusion of oral argument, the matter was taken under advisement. Appellant's termination from participation in the Drug Court program is AFFIRMED, as are the sentences assessed by the District Court.

¶ 5 We find no support in the record for Appellant's claim that the trial court did not consider Appellant's relapses and restarts as set forth at 22 O.S.1998, § 471.7. A review of Appellant's Drug Court program history shows that over a two-year period from Appellant's acceptance into Drug Court until his termination from the program, Appellant tested positive for cocaine usage no fewer than five times. The response to each of these infractions was incarceration (from two to five days each time) and/or placement in a treatment program. The final response was to terminate Appellant from the program. We find that the trial court repeatedly recognized and considered Appellant's relapses and restarts. Appellant, on the other hand, did not respond to the assistance offered him through the Drug Court program.

¶ 6 Appellant next alleges that the requirements set forth by this Court in Hagar v. State were not followed, denying him due process. Appellant's complaint seems to be that the order of the District Court terminating his Drug Court participation was not specific enough. The District Court, the Honorable Gregg Smith, noted in his order terminating Appellant's Drug Court participation that Appellant had violated the terms of his Drug Court contract and had failed on numerous occasions to cooperate with the Drug Court staff. While the written order could have contained more detail concerning Appellant's failure to properly participate in and complete his Drug Court program, the trial court, on the record, specifically noted Appellant's repeated relapses, his refusal to take responsibility for his behavior, his uncooperative attitude, his refusal to acknowledge his relapses and to admit to testing positive for drugs while a Drug Court participant, his secretive behavior, and his inability to abide by Drug Court rules. There was more than sufficient independent, corroborative evidence presented at the termination hearing to find Appellant had violated the terms of his Drug Court contract. We likewise find no merit in Appellant's claims that the evidence presented at the termination hearing did not support the allegations set forth in the State's application to terminate or that the trial court sentenced Appellant after considering facts not admitted into evidence.

¶ 7 While we affirm Appellant's termination from Drug Court, we find it necessary to address Appellant's fourth proposition of error in greater detail. Appellant alleges that the District Court, by questioning him during the termination proceeding, became an advocate for the State and was no longer able to impartially evaluate Appellant's termination from Drug Court. When Appellant objected to the questions being asked by the court, Judge Smith responded that he was "making a record as part of the treatment team." Appellant argued that at this point Judge Smith became an advocate of the State, and his conduct constituted prejudicial and reversible error. At no time did Appellant request that Judge Smith recuse himself. Instead, Appellant simply objected to Judge Smith's line of questioning. Appellant alleges his termination from Drug Court should be reversed because Judge Smith was biased and, as a result, Appellant's due process rights were violated.

¶ 8 The Oklahoma Drug Court Act [Act], 22 O.S.Supp.1998, §§ 471-471.11, et seq. authorizes creation of a Drug Court program in each district court of this State. Drug Court is a type of diversionary sentence, and was established by the legislature as "a highly structured judicial intervention process for substance abuse treatment of eligible offenders which expedites the criminal case, and requires successful completion of the plea agreement in lieu of incarceration." 22 O.S.Supp.1998, § 471.1(A); Woodward v. Morrissey, 1999 OK CR 43 ¶ 10, 991 P.2d 1042, 1045; Hagar, 1999 OK CR 35 ¶ 7,990 P.2d at 897. We have previously established that a defendant is entitled to due process when the State seeks to terminate his or her participation in Drug Court. Id. ¶¶ 11-14, 990 P.2d at 898-99.

¶ 9 The Act creates a court-approved plea agreement, providing a separate rehabilitation procedure for an individual who would otherwise be prosecuted and punished for their drug-related offenses in a traditional criminal setting. Woodward, 1999 OK CR 43 ¶ 12, 991 P.2d at 1045. As part of this non-traditional, criminal approach, the legislature established a procedure for accepting persons into the program, developing a rehabilitation plan, monitoring and evaluating the defendant's participation in the plan, and when necessary, removing a participant from the program upon non-compliance with the Drug Court contract. 22 O.S.Supp.1998, §§ 471.1-471.11, et seq. Whenever possible, a Drug Court team is to be established to oversee implementation of the Drug Court program with regard to each Drug Court participant. That team is to consist of a district attorney, a defense attorney, and a judge to administer the program. 22 O.S.Supp.1998, § 471.1(D). The Drug Court team should also include "other persons designated by the Drug Court team who shall have appropriate understanding of the goals of the program and of the appropriate treatment methods for various conditions." Id.

¶ 10 By statute, the judge overseeing a defendant's Drug Court program is part of that Drug Court team. The Act also provides that assignment of any person to the Drug Court team shall not preclude the assigned person from performing other duties required in the course of their office or employment. Id. It appears, from the face of the statute, that the Drug Court team judge is not precluded, by virtue of being assigned to a particular defendant's Drug Court team, from making determinations regarding that defendant's termination from the Drug Court program.

¶ 11 Further support for this position appears at § 471.7, titled "Monitoring of treatment progress." See, 22 O.S.Supp.1998, § 471.7. Section 471.7(A) specifically states that the designated Drug Court judge shall make all judicial decisions concerning any case assigned to the Drug Court docket or program. The Drug Court judge is also charged with the responsibility of requiring a progress report and periodic review of Drug Court participants, receiving reports about a defendant's progress from treatment providers and supervising staff, and conducting hearings to review the offender, the treatment plan and the provisions of the performance contract. 22 O.S.Supp.1998, § 471.7(A), (B). The Drug Court judge may establish a regular schedule for progress hearings for Drug Court participants, but is not required to do so. 22 O.S.Supp. 1998, § 471.7(C). The Drug Court judge is to recognize relapses and restarts in the program which are considered part of the rehabilitation process, and shall accomplish monitoring and offender...