Guy v. City of Oklahoma City, M-87-539

• Decision Date: 11 August 1988
• Docket Number: No. M-87-539,M-87-539
• Citation: 760 P.2d 1312
• Parties: Marcus Dewayne GUY, Appellant, v. CITY OF OKLAHOMA CITY, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1312

760 P.2d 1312

Marcus Dewayne GUY, Appellant, v. CITY OF OKLAHOMA CITY, Appellee.

No. M-87-539.

Court of Criminal Appeals of Oklahoma.

Aug. 11, 1988.

As Corrected Sept. 15, 1988.

An Appeal from the Municipal Criminal Court of Oklahoma City; Patrick O. Delaney, Municipal Judge.

MARCUS DEWAYNE GUY, appellant, pled guilty to Driving Under the Influence of Intoxicating Liquor, in the Municipal Criminal Court of Record of Oklahoma City, Case No. 86-1229104, sentenced to pay a fine of Three Hundred ($300) Dollars and costs, and appeals. Reversed and remanded.

Travis Smith, Paula M. Henderson, Legal Aid of Western Oklahoma, Inc., Oklahoma City, for appellant.

Robert D. Allen, Mun. Counselor, Sarah C. Spencer, Asst. Mun. Counselor, Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Marcus Dewayne Guy, appellant, pled guilty to Driving Under the Influence of Intoxicating Liquor, Case No. 86-1229104, in the Municipal Criminal Court of Record of Oklahoma City, the Honorable Patrick O. Delaney, Municipal Court Judge, presiding. The court sentenced appellant to pay a fine of Three Hundred ($300) Dollars plus costs. We reverse and remand for a resentencing hearing.

Appellant pled guilty to Driving Under the Influence of Intoxicating Liquor (DUI) on September 2, 1986, and, with the consent of appellant, the city attorney, and the municipal judge, was admitted into the continued sentence program. This program is unique to municipal court and is authorized both by statute and by city ordinance. See 11 O.S.1981, § 28-123(C). See Oklahoma City, Ok., Rev. Ordinances, Code § 33-44(a)(3) (1980). See also Note, Municipal Corporations: A Recommended Procedure for "Accelerating" or "Revoking" Continued Sentences, 34 Okla.L.Rev. 152, 153 (1981).

Under the Oklahoma City continued sentence program, the custom in municipal criminal courts of record is the accused pleads guilty to the charged offense of DUI and, pursuant to a plea agreement with the city attorney, the defendant's sentencing is continued for up to six months, during which time the defendant is required to satisfy certain substantive conditions. Among those substantive conditions to which appellant agreed were, inter alia, he would not violate any law, would not consume or possess any intoxicants, would report for weekly counseling, would report to municipal court for sentencing on March 3, 1987, and would "be prepared on the final sentencing date to pay a fine of $100 and costs of $25." The municipal judge approved the plea agreement and the conditions imposed.

Under the standard practice in the Oklahoma City municipal criminal court of record, when the defendant satisfies the conditions of the continued sentence and appears on the sentencing date, he is permitted to withdraw his guilty plea to the offense of DUI, the city attorney amends the charge to the lesser offense of Driving While Impaired (DWI), and the defendant then pleads guilty to the lesser offense and is sentenced accordingly. The "City concurs with Petitioner's [sic] description of the procedure routinely used in the Municipal Court of Record in Oklahoma City." Brief of Appellee, at 1.

DUI is punishable by "fine and costs not to exceed five hundred dollars ($500) or imprisonment not to exceed ninety (90) days, or by both such fine or imprisonment." Oklahoma City Municipal Code § 32-7. Conviction of DUI in municipal court could result in a minimum six months revocation of the privilege to drive under 47 O.S.1981, §§ 6-205 and 6-208(b), and can also form a predicate for filing a subsequent DUI as a felony in the district court under 47 O.S.1981, § 11-902(C).

On the other hand, DWI is punishable by "fine and costs not to exceed three hundred dollars ($300)." For second or subsequent offenses, the punishment is the same as for DUI. Oklahoma City Municipal Code § 32-8. A first conviction for DWI carries no loss of license and forms no predicate for a subsequent DWI to be filed as a felony under 47 O.S.1981, § 11-902(C). Thus, the benefits to be gained by receiving a DWI conviction rather than a DUI conviction are substantial. Brief of Appellant, at 5-9.

Appellant is an indigent and was represented by Legal Aid of Western Oklahoma, Inc. (LAWO) in the municipal court and again on appeal. Appellant appeared on the appointed sentencing date and announced he was unable to pay the fine and costs and requested a continuance to obtain the necessary funds. The court granted the continuance until March 31, 1987. On the designated sentencing date, appellant appeared with counsel and announced he was still unable to pay the fine and costs. The municipal court found payment of the fine and costs to be a condition of the continued sentence, and by not having the funds to pay the fine and costs on the sentencing date, appellant had not successfully completed the program. Whereupon the municipal court sentenced appellant in accordance with his plea of guilty to DUI, imposed a fine of $300 and costs, and granted appellant time until April 30, 1987, to pay the fine and costs. From this final judgment and sentence appellant appeals.

Appellant's three assignments of error are grounded on the characterization that his sentence was accelerated on March 31. He argues denial of procedural due process because his sentence was accelerated without notice and a hearing and without proof that he willfully refused to pay the fine and costs despite his ability to pay. The City counters there was no acceleration of sentence and that appellant cannot raise the question of procedural due process on that ground. We are compelled to agree with the City. Appellant was scheduled to appear for sentencing on a date certain and did so. The municipal court did not accelerate appellant's sentence. Nor did granting appellant's request for a continuance divest the court of jurisdiction to sentence him on March 31. What occurred on that date is properly characterized as a refusal to give appellant the benefit of his bargain because he had not met one of the conditions of his continued sentence, i.e., that he appear with the funds to pay the fine and costs. Appellant's assignments of error of deprivation of procedural due process on the grounds of an accelerated sentencing procedure are, therefore, inapplicable. But this finding does not end our inquiry. We must consider the further question whether the municipal court denied appellant the benefit of his bargain for a constitutionally impermissible reason. We answer in the affirmative.

We begin by delineating the scope of our review. Guilt or innocence is not at issue here. Appellant pled guilty to DUI and does not challenge that plea. Appellant does not contend, nor could he contend, that his poverty immunizes him from punishment. The City...