State v. Salathiel

• Decision Date: 30 September 2013
• Docket Number: No. S–2012–623.,S–2012–623.
• Citation: 313 P.3d 263
• Parties: The STATE of Oklahoma, Appellant, v. Denzel SALATHIEL, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

313 P.3d 263

The STATE of Oklahoma, Appellant,

v.Denzel SALATHIEL, Appellee.

No. S–2012–623.

Court of Criminal Appeals of Oklahoma.

Sept. 30, 2013.

An Appeal from the District Court of Oklahoma County; the Honorable Glenn M. Jones, District Judge.

Douglas Parr, attorney at law, Oklahoma City, OK, attorney for defendant/appellee at trial and appeal.

David R. Nichols, Assistant District Attorney, Oklahoma City, OK attorney for the state/appellant at trial and appeal.

OPINION

C. JOHNSON, Judge.

¶ 1 On November 19, 2009, Appellee, Denzel Dean Salathiel, pled guilty to Actual Physical Control of a Motor Vehicle While Under the Influence of Intoxicants, a misdemeanor (47 O.S.Supp.2006, § 11–902(A), (C)(1)) in Oklahoma County District Court Case No. CM–2008–4007.¹ Pursuant to the plea agreement, and as permitted by 22 O.S.Supp.2005, § 991c, the court deferred imposition of judgment for two years, subject to Appellee's successful compliance with standard conditions of probation. Appellee completed the two-year probationary period without incident, and the case was subsequently dismissed.

¶ 2 On February 22, 2012, Appellee was arrested in Oklahoma County for Driving Under the Influence of Intoxicants (47 O.S.2011, § 11–902(A), (C)(2)), and he was formally charged on March 28, 2012 in Oklahoma County District Court Case No. CF–2012–1892. To elevate this crime from a misdemeanor to a felony, the State alleged that Appellee had previously committed a violation of § 11–902, as charged in CM–2008–4007.² Appellee filed a Demurrer and Motion to Dismiss, alleging that the State could not lawfully enhance the 2012 DUI charge with his plea in CM–2008–4007, becauseAppellee had successfully completed the terms of the deferred judgment in that case. The State filed a brief in response. On June 19, 2012, the Honorable Larry Jones, Special Judge, sustained Appellee's motion. The State appealed that ruling to the district court pursuant to 22 O.S.2011, § 1089.1 et seq. On July 10, 2012, the Honorable Glenn M. Jones, District Judge, affirmed the magistrate's ruling. The State now appeals the district court's ruling to this Court, pursuant to 22 O.S.2011, § 1089.7. The case was automatically assigned to our Accelerated Docket. Rule 11.2(A), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S., Ch. 18, App. (2012). Oral argument was held February 14, 2013.

¶ 3 This appeal requires us to interpret language in 47 O.S. § 11–902, Oklahoma's Driving Under the Influence (or “DUI”) statute—specifically, changes to the statute which took effect November 1, 2011, between the time of Appellee's two prosecutions thereunder. At all times relevant to Appellee's first prosecution in 2008–09, a first DUI offense was a misdemeanor; a person faced felony punishment only if he had been “convicted” of a DUI offense within the ten years preceding the commission of the new offense. 47 O.S.Supp.2006, § 11–902(C)(2). The 2011 amendment, however, permits felony enhancement not only with a prior conviction for a DUI offense, but also with any prior plea of guilty or nolo contendere to such offense, even if the plea never resulted in a judgment:

Any person who, during the period of any court-imposed probationary term or within ten (10) years of the date following the completion of the execution of any sentence or deferred judgment for a violation of this section or a violation pursuant to the provisions of any law of this state or another state prohibiting the offenses provided in subsection A of this section, ... commits a second offense pursuant to the provisions of this section or has a prior conviction in a municipal criminal court of record for the violation of a municipal ordinance prohibiting the offense provided for in subsection A of this section and within ten (10) years of the date following the completion of the execution of such sentence or deferred judgment commits a second offense pursuant to the provisions of this section shall, upon conviction, be guilty of a felony ...

47 O.S.2011, § 11–902(C)(2) (emphasis added). The 2011 amendment also added a new paragraph, which underscores the change:

Any plea of guilty, nolo contendere or finding of guilt for a violation of this section or a violation pursuant to the provisions of any law of this state or another state prohibiting the offenses provided for in subsection A of this section, Section 11–904 of this title, or paragraph 4 of subsection A of Section 852.1 of Title 21 of the Oklahoma Statutes, shall constitute a conviction of the offense for the purpose of this section for a period of ten (10) years following the completion of any court-imposed probationary term.

47 O.S.2011, § 11–902(M) (emphasis added).³

¶ 4 As stated above, Appellee's 2009 plea was entered as part of a deferred-judgment agreement, authorized by 22 O.S. § 991c. In 1970, the Oklahoma Legislature created this procedure whereby the court could “defer” the rendition of judgment in a criminal case for a period of time. Typically, a judgment is deferred in exchange for the defendant's plea of guilty or nolo contendere, and his agreement to abide by certain conditions for a specified period of time. Unlike the district court's authority to suspend execution of a sentence, see22 O.S.2011, § 991a, where judgment of guilt is rendered but the execution of the sentence is “suspended” in whole or in part, on conditions of probation, under a deferred-judgment procedure no judgment of guilt is rendered unless and until the defendant violates the terms of the agreement.

¶ 5 Although the statute has been amended several times over the years, the basic mechanics of § 991c have remained unchanged:

Upon a verdict or plea of guilty or upon a plea of nolo contendere, but before a judgment of guilt, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings upon the specific conditions prescribed by the court not to exceed a five-year period....

Upon completion of the conditions of the deferred judgment, ... the defendant shall be discharged without a court judgment of guilt, and the court shall order the verdict or plea of guilty or plea of nolo contendere to be expunged from the record and the charge shall be dismissed with prejudice to any further action ....

22 O.S.Supp.2005, § 991c(A), (C).⁴ If the defendant violates any condition to the deferred judgment procedure, the court may proceed to enter judgment of guilt (which, in cases involving a previously-tendered guilty or nolo plea, requires the court to first “accept” that plea). 22 O.S.Supp.2005, § 991c(E). On the other hand, a defendant who successfully completes the terms of the deferred-judgment agreement is entitled, by operation of law, to have the entire proceeding—including any tendered guilty plea—expunged from the record. 22 O.S.Supp.2005, § 991c(C). Moreover, such expungement is expressly declared by the Legislature to have retroactive effect. 22 O.S.Supp.2005, § 991c(D).

¶ 6 The 2011 amendments to the DUI statute, 47 O.S. § 11–902, prompted the State to seek enhanced punishment for Appellee's 2012 DUI prosecution, using his guilty plea to a DUI offense in November 2009. In the State's view, the fact that Appellee had successfully completed his part of the deferred-judgment agreement in the prior case was made irrelevant by the intervening changes in the DUI law. Appellee challenged this interpretation under several theories. First, he argued that treating his 2009 guilty plea as tantamount to a “conviction” violated a basic rule of statutory construction, i.e., that statutes should not be given retroactive effect unless their language expressly declares otherwise. Alternatively, Appellee argued that application of the 2011 amendment, to a guilty plea made in 2009, would violate his constitutional guarantees against ex post facto laws, bills of attainder, and impairments to his ability to contract. SeeOkla. Const. Art. 2, § 15 (“No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed”).

¶ 7 Both the examining magistrate and the district judge agreed that the State should not be allowed to use Appellee's prior guilty plea for enhancement. In its written order, the district court concluded that doing so would constitute an ex post facto violation, as it “increase[s] statutory punishment for the crime, [and] changes the collateral consequence[s] of the defendant's plea and deferred judgment which he expected pursuant to statutes then in existence.” (O.R. 48) We review the district court's ruling for an abuse of discretion. State v. Swicegood, 1990 OK CR 48, ¶ 7, 795 P.2d 527, 529. While we agree with the tenor of the district court's reasoning, we reach the same conclusion it did using a slightly different legal rationale.

¶ 8 It is a fundamental rule of statutory construction that intervening changes in the law should only be applied prospectively from their effective date, unless the Legislature has specifically declared that they have retroactive effect. Nestell v. State, 1998 OK CR 6, ¶ 5, 954 P.2d 143, 144;State v. Watkins, 1992 OK CR 50, ¶ 5, 837 P.2d 477, 478. The common-law presumption against retroactive application of statutes, and the constitutional proscriptions against ex post facto laws, bills of attainder, and impairments of contract, are all variations on a common theme in our law. They balance the Legislature's authority to enact laws with the ideas of adequate notice, reasonable reliance, and fair play.

¶ 9 Below and on appeal, the State correctly observes that the 2011 amendment to § 11–902 does not purport to criminalize conductcommitted before its enactment. In other words, the State is not attempting to re-prosecute Appellee, or to punish him any further, for any DUI offense in 2008. Rather, the 2011 amendments re-define what kind of evidence can be used to enhance punishment for a new offense. It might be said that after November...