Woodward v. Morrissey

• Decision Date: 19 November 1999
• Docket Number: No. M-99-170.,M-99-170.
• Citation: 991 P.2d 1042,1999 OK CR 43
• Parties: David WOODWARD, Petitioner, v. Honorable Linda MORRISSEY, Special Judge, and Honorable Thomas C. Gillert, District Judge, Tulsa County, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

991 P.2d 1042

1999 OK CR 43

David WOODWARD, Petitioner, v.Honorable Linda MORRISSEY, Special Judge, and Honorable Thomas C. Gillert, District Judge, Tulsa County, Respondents.

No. M-99-170.

Court of Criminal Appeals of Oklahoma.

November 19, 1999.

As Corrected November 30, 1999.

ORDER DENYING APPLICATION FOR WRIT OF MANDAMUS AND/OR PROHIBITION

¶ 1 On December 21, 1998, David Woodward(hereinafter Petitioner), by and through counsel, C. Rabon Martin, filed an Application to Assume Original Jurisdiction and Petition for Combined Writs of Mandamus and Prohibition in Case No. CF-98-1780 in the District Court of Tulsa County.Petitioner's application was originally filed in the Supreme Court of the State of Oklahoma and assigned Case No. 92364.On February 8, 1999, the Oklahoma Supreme Court transferred this matter to the Oklahoma Court of Criminal Appeals for disposition.Petitioner requests this Court issue a writ of mandamus and/or prohibition to the Respondents named in his application, but does not indicate what relief he is seeking.

¶ 2Petitioner alleges he is charged with Driving Under the Influence, Second Offense, in the District Court of Tulsa County, Case No. CF-98-1780, and faces revocation of a suspended sentence in Case No. CF-96-3802.Prior to arraignment, Petitioner alleges he applied for and was denied admission to Drug Court, pursuant to a veto by Tulsa County Assistant District AttorneyNancy Little.Petitioner filed an application with the Drug Court to review the denial.In an order entered November 24, 1998, Special Judge Linda Morrissey, who presided over Tulsa County Drug Court, refused to review Petitioner's request, finding she did not have judicial power to review the District Attorney's decision.¹Petitioner's Motion for Diversion to Drug Court was then denied by the District Court of Tulsa County, the Honorable Thomas C. Gillert, District Judge, in an order entered November 24, 1998.

¶ 3Petitioner alleges the Oklahoma Drug Court Act [Act], 22 O.S.Supp.1998, §§ 471-471.11, was enacted to divert persons who would otherwise be prosecuted and punished for offenses relating to recreational drugs to a rehabilitation-oriented Drug Court program.The eligibility criteria established for admission to the program, where such programs exist, is set forth at 22 O.S.Supp.1998, § 471.2.In addition to other statutorily excluded parties, persons whose application forms do not bear the approval of the District Attorney are ineligible for the program.

¶ 4The Act does not provide for judicial review of the District Attorney's disapproval or veto of a Drug Court application.Petitioner alleges the Legislature, by failing to provide for judicial review of the District Attorney's disapproval of an application for Drug Court, has usurped the judiciary's role in determining whether a cause can be adjudicated in a particular forum, making the Act unconstitutional.Petitioner alleges he has no other relief available in the event this Court does not assume jurisdiction of this matter.

¶ 5 Construing Petitioner's application as a request that we order judicial review of the District Attorney's decision to veto Petitioner's participation in Drug Court, we find nothing in the Petitioner's application establishing that he is entitled to such relief.For a writ of mandamus a petitioner has the burden of establishing (1)he has a clear legal right to the relief sought; (2)the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief.SeeWoolen v. Coffman,1984 OK CR 53, ¶ 6, 676 P.2d 1375, 1377;Rule 10.6(B), Rules of the Oklahoma Court of Criminal Appeals,Title 22, Ch.18, App. (1998).For a writ of prohibition a petitioner must establish (1)a court, officer or person has or is about to exercise judicial or quasi-judicial power; (2) the exercise of said power is unauthorized by law; and (3) the exercise of said power will result in injury for which there is no other adequate remedy.Rule 10.6(A).Petitioner has neither established that he has a clear legal right to the relief requested, nor that the exercise of judicial power in this case is unauthorized by law, nor that the exercise of power will result in injury for which there is no adequate remedy.

¶ 6Petitioner's application challenges the constitutionality of the Act, alleging it violates the separation of powers clause of the Oklahoma Constitution.It is Petitioner's burden to establish that the challenged legislation is unconstitutional.State v. Claborn,1994 OK CR 8, ¶ 4, 870 P.2d 169, 170.Classic rules of statutory construction dictate that this Court will presume a statute is constitutional.It is the duty of the courts, whenever possible, to harmonize the acts of the legislature with the Constitution.Fields v. Driesel,1997 OK CR 33, ¶ 20, 941 P.2d 1000, 1005;Ex parte Hunnicutt,7 Okla.Crim. 213, 123 P. 179, 183(1912).

¶ 7Petitioner recognizes the legislature has the authority to statutorily establish the criteria which must be met for a particular cause to be adjudicated in a particular court.However, he argues that establishment of District Attorney approval for admission into Drug Court is "not a legislatively established criteria, in and of itself, but a legislative attempt to bestow the power to render a final decision in a judicial proceeding upon the District Attorney, a member of the Executive branch, clearly an encroachment upon judicial powers."He then claims that "[a]llowing a prosecutor the unfettered discretion to enter a final, unreviewable, decision, excluding an applicant from Drug Court, deprives the Drug Court judge of an opportunity to make a final decision on the application, impermissibly shifting powers clearly judicial in nature to the Executive branch."Petitioner's complaint is that the statute, as written, vests the District Attorney with powers so broad that they spill over into the powers of the judicial branch, usurping the authority of the courts to decide a matter clearly within the purview of the judiciary.Petitioner's argument, basically, is that only the judge can tell the defendant his case is not going to be heard in Drug Court.Petitioner cites no authority for this position; he simply claims that it is a logical argument.

¶ 8 After examining the statute in question and relevant controlling authority, we find that the legislative restrictions contained within the Drug Courtstatute neither violate the separation of powers clause nor deny Petitioner access to the courts.The issue in this case is not one of separation of powers and whether the courts have the power to hear a particular matter.Rather, it is a question of prosecutorial discretion in charging a defendant with a particular crime and trying him/her in a particular forum.

¶ 9 As this Court has repeatedly stated, provided a prosecutor has probable cause to believe that the accused committed an offense, the decision of whether to prosecute and of what charge to bring rests generally within the prosecutor's discretion.Gray v. State,1982 OK CR 137, ¶ 8, 650 P.2d 880, 882.

¶ 10 Title 22 O.S.Supp.1998, §§ 471, et seq. establishes Drug Court.The program is defined at § 471.1(A) as:

"`[D]rug court', `drug court program' or `program' means an immediate and 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."

(Emphasis added).Section 471.1(C) provides that nothing in the Act is to be construed to require consideration of every offender for the program, and § 471.1(E) specifies that no person shall be eligible for the Drug Court program without the approval of the district attorney.Section 471.2(B) specifically provides:

The offender must request consideration for the drug court program as provided in subsection C of this section and shall have approval from the district attorney before being considered for the drug court program.The eligibility form shall describe the drug court program for which the offender may be eligible, including, but not limited to:

4. . . .A clear statement that the offender is required, before consideration in the program, to enter a guilty plea as part of a written plea agreement; . . .

8.A clear statement that during participation in the drug court program should the offender: [fail to meet certain specified requirements] the offender may be required, after a court hearing, to be revoked from the program and sentenced without trial pursuant to the punishment provisions of the negotiated plea agreement; . . . .

(Emphasis added).

¶ 11 The term "Drug Court" is somewhat of a misnomer.As noted in § 471.1(D), the Drug Court program is "a separate judicial processing system differing in practice and design from the traditional adversarial criminal prosecution and trial systems".(Emphasis added).The Act requires the defendant plead guilty, and enter into a plea agreement, with the consent of the State.Subject to approval by the Drug Court judge, the defendant will be sentenced in accordance with that plea agreement.

¶ 12 Examining the entire statute as a whole, and not on a piecemeal basis, the reason for District Attorney approval of a defendant's participation in the program is quite clear.The Drug Court Act creates a court-approved plea agreement, providing a separate rehabilitation procedure for individuals who would otherwise be prosecuted and punished for their drug-related offenses in a traditional criminal setting.As we have noted on numerous occasions, a defendant has no constitutional right, and the State has no obligation, to enter into a plea agreement with anyone.In Gray,1982 OK CR 137, ¶ 8, 650 P.2d at 882, we stated:

The State is never under any legal obligation to plea bargain with any defendant; for there is no

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