Norton v. State

• Citation: 2002 OK CR 10,43 P.3d 404
• Decision Date: 28 February 2002
• Docket Number: No. F-2000-1359.,F-2000-1359.
• Parties: Louis Harold NORTON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

43 P.3d 404

2002 OK CR 10

Louis Harold NORTON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-2000-1359.

Court of Criminal Appeals of Oklahoma.

February 28, 2002.

Eric R. Jones, Ardmore, OK, Attorney for Defendant at trial.

Gary R. Brown, Assistant District Attorney, Sulphur, OK, Attorney for the State at trial.

S. Gail Gunning, Indigent Defense System, Norman, OK, Attorney for Appellant on appeal.

Diane L. Slayton, Assistant Attorney General, Oklahoma City, OK, Attorney for the State on appeal.

OPINION

JOHNSON, Vice-Presiding Judge:

¶ 1 Appellant, Louis Norton, was charged in Love County District Court, Case No. CF-2000-17, with Knowingly Concealing Stolen Property (21 O.S.Supp.1999, § 1713). Preliminary hearing was held before the Honorable Charles Roberts, Associate District Judge. Appellant was bound over for jury trial before the Honorable John H. Scaggs, District Judge. Appellant was represented by counsel at trial. The jury found Appellant guilty and recommended a sentence of three years and six months imprisonment and a $500.00 fine. The trial court sentenced Appellant in accordance with the jury's recommendation, and Appellant timely lodged this appeal.

¶ 2 On February 7, 2000, two Oklahoma Department of Transportation (ODOT) buildings in Love County were burglarized and a number of tools were stolen. Two men, Gary Gilbert and Derek Mertz, subsequently confessed that they had committed the burglaries. The men told the police that they had sold several of the stolen tools to Appellant, and that Appellant was told the items were stolen. An ODOT supervisor drove to Denton, Texas, where Appellant's flea-market booth was located, and discovered several tools that had been taken in the ODOT burglary. The tools had ODOT serial numbers engraved on them for identification and inventory purposes. Appellant voluntarily discussed the matter with police and gave them other tools that he had bought from Gilbert and Mertz. He denied knowing the items were stolen.

¶ 3 At trial, Gilbert and Mertz testified that they sold the stolen tools to Appellant and told Appellant the items were stolen, in hopes that he would take them out of state as soon as possible. Appellant testified in his own defense, maintaining that he did not know the items were stolen. In rebuttal, the State presented testimony that Appellant had a poor reputation in the community for veracity. The jury found Appellant guilty of Knowingly Concealing Stolen Property.

¶ 4 Appellant raises two issues on appeal. First, he claims that because he was denied counsel at his preliminary hearing, he is entitled to a reversal of his conviction. The State responds that Appellant has waived any error by failing to raise the issue at arraignment, which would have given the district court an opportunity to address the situation.

¶ 5 We must first determine whether Appellant was "denied" his right to counsel at preliminary hearing, or made a voluntary and intelligent waiver of that right. The colloquy between Appellant and the preliminary hearing magistrate is brief. When asked if he intended to represent himself, Appellant stated that he did not have money for a lawyer, and further commented that he would not accept any court-appointed lawyer "from this area" that the court might supply him. When asked again if he intended to proceed pro se, Appellant replied, "Well," and the magistrate then invited the State to present its first witness.

¶ 6 There is, however, additional record evidence that Appellant was advised of his right to counsel. According to the minutes of Appellant's initial appearance, several weeks before preliminary hearing, Appellant was advised that he should either have retained counsel file an entry of appearance, or file an application for appointed counsel, by March 24, 2000. Otherwise, according to the minute, "the Court will interpret [Appellant's] action as an election to represent himself and will proceed with the Preliminary Hearing absent a showing of the [Appellant] that [the] failure [was] unavoidable."¹ There is no indication in the record that Appellant ever attempted to seek counsel, retained or appointed, before preliminary hearing.²

¶ 7 A defendant's right to counsel is guaranteed by both the federal and state constitutions. U.S. Const. Amend. VI; Okla. Const. art. 2, § 20. That right may be waived if done knowingly and voluntarily, but waiver will not be lightly presumed, and the court must indulge every reasonable presumption against waiver. Lineberry v. State, 1983 OK CR 115, ¶ 3, 668 P.2d 1144, 1145.

¶ 8 Despite record evidence that Appellant was advised, well in advance of preliminary hearing, that his right to counsel depended upon his affirmative responsibility to seek counsel (whether by hiring one or applying for one), we find the totality of the record insufficient to conclude that Appellant knowingly, voluntarily, and intelligently waived his right to counsel at preliminary hearing. The accused has a responsibility to seek counsel promptly, either by retaining a lawyer or applying for court-appointed counsel. An accused cannot use the lack of counsel as a delay tactic. Colbert v. State, 1986 OK CR 15, ¶ 8, 714 P.2d 209, 211, cert. denied, 479 U.S. 838, 107 S.Ct. 140, 93 L.Ed.2d 83 (1986). The lower court's advice and warnings at initial appearance were entirely appropriate. But without a more developed colloquy with Appellant, either at the initial appearance or preliminary hearing, we cannot conclude that his pro se appearance at preliminary hearing was a voluntary choice. See also Rankin v. State, 1966 OK CR 2, ¶ 10, 409 P.2d 641, 644

(defendant's statement to district judge one month before preliminary hearing, that he did not desire court-appointed counsel, was not a sufficient waiver of the right to counsel).

¶ 9 We must now consider whether the lack of counsel at preliminary hearing requires reversal. An accused is entitled to counsel at any critical stage of a criminal proceeding, including preliminary hearing. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). In Coleman, the State of Alabama had argued that preliminary hearing was not a "critical stage" of criminal proceedings in that state, because the state could have elected to prosecute by indictment rather than information, in which case the defendant would not have been entitled to a preliminary hearing. The Supreme Court held that even if the hearing was not mandatory under Alabama procedure, it was important enough to be considered a "critical stage." Nevertheless, the Court remanded the case to the state court to determine whether the error was harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Coleman, 399 U.S. at 11, 90 S.Ct. at 2004. This Court has recognized that denial of counsel at preliminary hearing is one of a number of constitutional errors that may, in proper circumstances, be deemed harmless beyond a reasonable doubt. Bartell v. State, 1994 OK CR 59, ¶ 17 & n. 6, 881 P.2d 92, 98 & n. 6.

¶ 10 Appellant cites Cleek v. State, 1987 OK CR 278, 748 P.2d 39, as authority for conclusion that denial of counsel at preliminary hearing requires automatic reversal of the conviction, without any showing of prejudice. In Cleek, the defendant appeared without counsel at preliminary hearing. Despite evidence that the defendant was indigent, the magistrate denied appointed counsel and the defendant was forced to represent herself at the hearing. It is not clear from the opinion whether the defendant was informed of how to apply for counsel in advance of the hearing. The defendant was later appointed counsel based on the same information she had provided to the examining magistrate. On appeal, this Court held that the defendant had presented sufficient evidence at the preliminary hearing to entitle her to appointed counsel, and therefore, that she was denied her right to counsel at the hearing. Id. at ¶ 5, 748 P.2d at 40.

¶ 11 But a majority of this Court went on in Cleek to conclude that the denial of counsel at preliminary hearing can never be harmless error. The majority distinguished Coleman, reasoning that because preliminary hearings are provided for in our state constitution, they are a "much more `critical'" stage than they were in Coleman. Cleek, id. at ¶ 8, 748 P.2d at 41. This conclusion does not give full consideration to the Supreme Court's holding in Coleman that denial of counsel can be harmless error even though the preliminary hearing is a critical stage of the process.<sup>3</sup> With respect to Cleek's characterization of the Oklahoma preliminary hearing as `more critical' than was the case in Coleman, we note that while the preliminary hearing is guaranteed by our state constitution, at least in cases prosecuted by information, our legislature has seen fit, in the years since Cleek was decided, to enact a Criminal Discovery Code and, at the same time, to sharply curtail the use of preliminary hearings as a discovery forum. See 22 O.S.Supp.1994, §§ 258, 2001-2002.

¶ 12 We further note that the right to a preliminary hearing itself can be waived by failure to object. Sadler v. State, 1993 OK CR 2, ¶¶ 41-42, 846 P.2d 377, 386 (defendant waived preliminary hearing on amended information by failing to object); Berry v. State, 1992 OK CR 41, ¶¶ 9-10, 834 P.2d 1002, 1004-05 (error in failure to remand for preliminary hearing on prior convictions used for sentence enhancement was waived by failure to object); Brennan v. State, 1988 OK CR 297, ¶ 7, 766 P.2d 1385, 1387 (defendant waived right to preliminary hearing by pleading guilty); Hambrick v. State, 1975 OK CR 86, ¶ 11, 535 P.2d 703, 705 (a plea on the merits operates as a waiver of preliminary hearing). Clearly, the right to a preliminary hearing at all is no less important than the right to counsel at that hearing. If denial of the former can be waived by a failure to object, it makes little practical sense to hold that...