SONNIER v. STATE

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SONNIER v. STATE

2014 OK CR 13

Case Number: F-2013-905

Decided: 09/17/2014

ANDREA LYNN SONNIER, Appellant, v. THE STATE OF OKLAHOMA, Appellee

Cite as: 2014 OK CR 13, __ __

SUMMARY OPINION

SMITH, VICE PRESIDING JUDGE:

¶1 Andrea Lynn Sonnier pled guilty to Count I, Possession of

a Controlled Dangerous Substance in violation of 63 O.S.2011, § 2-402; and Count II,

Possession of Drug Paraphernalia in violation of 63 O.S.2011, § 2-405, in the

District Court of Tulsa County, Case No. CF-2011-2148. Pursuant to a plea

agreement, Sonnier received a deferred sentence of two (2) years on both counts,

concurrent, with supervision by the Tulsa County District Attorney's Office. On

April 25, 2012, the State filed an application to accelerate judgment and

sentence, based on crimes alleged to have been committed in Tulsa County Case

No. CF-2012-1757. On July 16, 2012, Sonnier executed a confession of the

application to accelerate, admitting the State could prove the allegations in

the application. Sentencing was passed to offer Sonnier an opportunity to

complete the Women in Recovery (WIR) program. At a hearing on August 1, 2013,

Sonnier was terminated from the WIR program, and the Honorable Kurt G. Glassco

sentenced Sonnier to four (4) years imprisonment (Count I), and one (1) year

imprisonment in the county jail (Count II), to run concurrently with one another

and consecutively with Sonnier's sentences in CF-2012-1757. Sonnier appeals from

this acceleration of her deferred sentences under Rule 1.2(D)(5)(b), Rules of

the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2014).

¶2 Sonnier raises three propositions of error in support of

her appeal:

I. Trial counsel failed to subject the State's case to any

meaningful adversarial testing thereby constructively depriving Sonnier of

counsel as mandated by the U.S. Const. amend. XIV, and the Okla. Const. art 2,

§§ 7 and 20.

II. The trial court plainly erred in terminating Sonnier

from Women in Recovery without first offering to hold an adversarial evidentiary

hearing consistent with due process standards guaranteed to probationers by the

State and Federal Constitutions.

III. The trial court violated the separation of powers

provision of the Oklahoma Constitution, art. 4, § 1 by delegating to Women in

Recovery the authority to establish rules and conditions of probation.

¶3 After thorough consideration of the entire record before

us, including the original record, transcripts, exhibits and briefs, we find

that the law and evidence do not require relief.

¶4 We find in Proposition I that plea counsel was not

ineffective. Sonnier must show that counsel's performance was deficient and that

she was prejudiced by counsel's deficient performance. Wiley v. State , 2008 OK CR 30, ¶ 4,199 P.3d 877, 878; Strickland v.

Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674

(1984). Counsel's acts or omissions must have been so serious that she

was deprived of a fair trial with reliable results. Harrington v.

Richter , 562 U.S. 86, 131 S.Ct. 770, 787-88, 178 L.Ed.2d 624 (2011). We

review counsel's performance against an objective standard of reasonableness

under prevailing professional norms, and we will not second-guess strategic

decisions. Harris v. State , 2007 OK CR 28, ¶ 39, 164 P.3d 1103, 1118; Rompilla v.

Beard , 545 U.S. 374, 380-81, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005).

For the Court to reach Sonnier's claims of deficient performance, she must show

she was prejudiced by counsel's acts or omissions. Williams v. Taylor ,

529 U.S. 362, 394, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000);

Strickland , 466 U.S. at 693, 104 S.Ct. at 2067. This proposition turns on

the success of Proposition II. We find in Proposition II that Sonnier had no

right to a judicial due process hearing on her termination from WIR. Therefore,

trial counsel cannot have been ineffective in failing to prepare properly for

such a hearing.

¶5 We find in Proposition II that Sonnier was not denied due

process of law when she was terminated from the WIR program. She did not raise

this below and has waived all but plain error. Plain error is an actual error,

that is plain or obvious, and that affects a defendant's substantial rights,

affecting the outcome of the trial. Barnard v. State , 2012 OK CR 15, ¶ 13, 290 P.3d 759, 764. Given the

constitutional nature of the claim, we must decide whether any error was

harmless beyond a reasonable doubt. Miller v. State , 2013 OK CR 11, ¶ 106, 313 P.3d 934, 971-72; Chapman v.

California , 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

¶6 Sonnier confessed the acceleration of her deferred

sentence in this case, No. CF-2011-2148, and entered a blind plea of guilty in

No. CF-2012-1757. In both cases sentencing was passed for her to try to

successfully complete the Women in Recovery program. In both cases, there was an

understanding that Sonnier would go to prison if she did not complete WIR, but

at the time of each plea there was no specific sentence recommended or imposed.

This case turns on the nature of Sonnier's participation in WIR. Sonnier

compares WIR to drug court, mental health court, probation revocation hearings,

and acceleration hearings. She argues that WIR is like drug court, and drug

court is like deferred sentencing, so WIR is like deferred sentencing. Thus, she

claims, she should be afforded the protections required on a deferred sentence,

including notice of the reasons for her termination and an opportunity to

contest those reasons. This Court has held that a defendant who is terminated

from participating in a diversionary program is entitled to due process. Tate

v. State , 2013 OK CR 18, ¶

20, 313 P.3d 274, 280-81;

Alexander v. State , 2002 OK

CR 23, ¶ 8, 48 P.3d 110,

112-13. This includes termination from drug court or mental health court, or the

acceleration of a deferred sentence. Tate , 2013 OK CR 18, ¶ 20, 313 P.3d at

280-81.

¶7 This comparison is misleading. When Sonnier entered a

guilty plea and confessed the acceleration of her deferred sentence in these

cases, she did not receive a deferred sentence in either case. In both cases,

the trial court accepted Sonnier's plea of guilty and confession to acceleration

(finding her guilty of the charged crime and allegation supporting

acceleration), and simply passed the sentencing proceedings. Sonnier was not put

on probation, nor was completion of WIR made a condition of her release. She did

sign a standard document stating rules and conditions of pretrial release, in

order to receive electronic monitoring through the court services system. In

neither case do the conditions of pretrial release mention WIR; the electronic

monitoring agreement in each case does state that WIR will pay the cost of

monitoring. Furthermore, in this case, CF-2011-2148, Sonnier's confession of

acceleration explicitly states: "pass to get into WIR, or sentencing by ct [sic]

if passed out of WIR due to pregnancy or any other reason."

¶8 Moreover, despite Sonnier's comparisons, completion of

the WIR program is not analogous to drug court or mental health court programs.

Drug and mental health courts formally and explicitly establish structured

judicial intervention processes for treatment of eligible offenders. 22

O.S.Supp.2014, §§ 471-471.11; 22

O.S.2011, § 472; Alexander , 2002 OK CR 23, ¶ 8, 48 P.3d at

112-13. These programs are based in the district courts, which hold regular

progress hearings. The reviewing courts must recognize relapses and restarts

because the alternative court statute provides for this consideration. 22 O.S.2011, § 471.7(E);

Tate , 2013 OK CR 18, ¶

23, 313 P.3d at 281-82. 1 Defendant participants who fail to complete the

programs are, of necessity, terminated through order of the drug or mental

health court judge. In deciding whether to terminate a defendant from one of

these programs, a trial court must afford at least the minimum due process

requirements, including written notice of the violations and disclosure of the

evidence, a hearing at which the defendant has an opportunity to be heard and to

confront and cross-examine witnesses, before a neutral and detached body, with a

written statement of findings and conclusions. 22 O.S.2011, § 471.7(F);

Tate , 2013 OK CR 18, ¶¶

22, 27, 313 P.3d at 281-82; Morrissey v. Brewer , 408 U.S. 471, 488-89, 92

S.Ct. 2593, 2603-04, 33 L.Ed.2d 484 (1972).

¶9 WIR is more like community service or a rehabilitation

program than a drug court or mental health court. It is not created separately

by statute, provides for no specific judicial intervention process, and is not

controlled by the trial court. No statutory provisions safeguard a defendant's

due process rights connected with her liberty interest as it relates to

acceptance into or termination from the program. Rather, WIR is a private

community provider program, which diverts a woman from prison, and which is

accessed through the trial court's sentencing powers. Unstructured

public-private partnerships are relatively new to the criminal justice system.

WIR began as a private/public experimental partnership with the Tulsa County

District Court system through the George F. Kaiser Foundation and Family and

Children's Services, a certified private service provider in the Tulsa area. The

program was designed to offer certain women not eligible for some other

diversionary program an opportunity to avoid incarceration in prison. To enter

the WIR program, an offender must approach WIR for a determination that she is

eligible and for acceptance into the program. The offender then petitions the

trial court, after entering a plea of guilty, to be allowed the opportunity to

complete the WIR program before sentence is imposed. If the trial court accepts

the plea, sentencing is passed until completion of the WIR program. When Sonnier

agreed to the acceleration of her deferred sentence in this case in order to

enter WIR, she agreed not only to entry into WIR, but to rules and conditions of

pretrial release, including participation in an electronic monitoring program

administered by the Tulsa County District Court division of Court Services. By

so agreeing, Sonnier agreed to keep the trial court informed of her progress

through regular, periodic court dates at which both WIR and Court Services

presented status reports.

¶10 Under the statutes providing for sentencing, a trial

court may suspend a sentence in whole or in part, and order a defendant to

comply with any provision specifically ordered by the court. 22 O.S.2011, § 991a(A)(1)(hh). When

imposing a deferred sentence on a verdict or plea of guilty, a trial court may

defer further proceedings upon specific conditions, and may order a defendant to

complete any conditions which can be imposed for a suspended sentence under §

991a(A)(1). 22 O.S.2011, §

991c(A)(10). Although Sonnier refers to these sentencing provisions, the

discussion above shows that they do not apply here. Initially, when Sonnier

first entered a plea in this case (CF-2011-2148), she did receive a deferred

sentence. However, when she confessed the State's application to accelerate that

deferred sentence, she did not receive another deferred sentence; sentencing was

merely passed to give her a chance to complete WIR. She was not ordered to

complete the WIR program as a condition of her release, though she did agree to

be sentenced by the court if WIR terminated her. In addition, Sonnier's plea of

guilty in CF-2012-1757 followed the same process and did not result in a

deferred sentence.

¶11 Trial courts may also sentence eligible offenders to the

Community Service Sentencing Program under 22 O.S.2011, § 991a-4.1. This provision allows offenders

to be sentenced to the program, administered by the DOC or counties which have

existing community service programs, and which may include community service or

education programs, substance abuse, mental health and medical treatment

programs, as well as testing for controlled substances and payment of

restitution. 22 O.S.2011, §

991a-4.1(C). Under Community

Service sentencing, the DOC establishes a list including "federal, state and

local government agencies, community service agencies, nonprofit organizations,

educational programs and other treatment programs willing to participate in the

program to which offenders may be referred". 22 O.S.2011, § 911a-4.1(G).

Additionally, DOC must periodically contact these organizations to monitor an

offender's progress. DOC must ensure that the trial court and prosecutor are

notified in writing if the offender either successfully completes or fails to

complete the program. 22 O.S.2011, §

991a-4.1(H). These general

sentencing provisions allow trial courts alternatives to incarceration by

diverting eligible defendants to community service programs such as WIR.

¶12 The specific statutory authority for expanded use of

programs such as WIR comes from 57

O.S.2011, § 510.8b. This statute authorizes the Department of Corrections to

establish public/private partnerships in pilot diversionary programs for

nonviolent offenders who are the primary caregivers of minor children, and to

provide reentry services for inmates with minor children. 57 O.S.2011, § 510.8b(A). The

Department of Corrections is tasked with developing or modifying community

diversion and reentry programs, developing community partnerships, and

promulgating rules necessary to implement the statutory provisions. 57 O.S.2011, § 510.8b(B),(C),(D).

While the statute allows DOC to partner with WIR, nothing in any statute

suggests that a trial court has the authority to order WIR to accept an offender

where WIR has determined that the offender does not meet its admission

requirements. In addition, although a trial court may terminate an offender from

the WIR program and sentence her to prison, nothing suggests that a trial court

could reject a WIR termination recommendation and require WIR to continue to

treat an offender once WIR determines the offender has violated the terms of the

program and should be terminated. In other words, the trial court has the

authority to pass an offender's case to allow her to complete WIR, and the

authority to impose sentence if she is removed from the program. However, the

WIR, not the trial court, may accept an offender into the program or determine

that she continues to be eligible for the program.

¶13 WIR is not comparable to drug court, mental health

court, deferred sentencing, or any other statutorily established structured

diversionary judicial intervention programs which provide an alternative to

incarceration. The absence of any statute which could support a right to due

process when a person is terminated from WIR is dispositive of this claim of

error. In the context of parole and probation revocation (both judicial

proceedings), the United States Supreme Court has confirmed that minimal due

process is required, but declined to prescribe a particular procedure for those

proceedings. Gagnon v. Scarpelli , 411 U.S. 778, 781-82, 93 S.Ct. 1756,

1759-60, 36 L.Ed.2d 656 (1973); Morrisey , 408 U.S. at 488-89, 92 S.Ct. at

2604. This Court has held that, in that context, a defendant must be

"sufficiently apprised" of the grounds on which probation or a suspended

sentence is revoked. Tate , 2013 OK CR 18, ¶ 33, 313 P.3d at

283-84. The trial court here accepted Sonnier's confession to acceleration of

her deferred sentence (and, in CF-2012-1757, her guilty plea) and passed her

sentencing date to allow her the opportunity for treatment in a community-based

program. In doing so, the trial court was participating in a public-private

partnership, in which Sonnier's eligibility for treatment was determined by the

private provider, rather than the court. We find that Sonnier had no

constitutional due process right to a judicial hearing on the private provider's

determination that she is no longer eligible for the program.

¶14 Upon determining that Sonnier should be terminated from

WIR, based on WIR's recommendation, the trial court properly proceeded to

sentencing. There was no error in the trial court's action. Because there was no

error, there was no plain error.

¶15 We find in Proposition III that there was no violation

of the separation of powers doctrine. The trial court has statutory authority to

order a defendant to comply with any provision specifically ordered by the

court, including participation in community-based sentencing or diversion

programs. 22 O.S.2011, §

991a(A)(1)(hh); 22 O.S.2011, §

991a-4.1(C); 57 O.S.2011, § 510.8b(A). The trial

court was within its authority in granting Sonnier's request to apply to enter

the WIR program before sentence was imposed, and there was no separation of

powers violation.

DECISION

¶16 The Judgment and Sentence of the District Court of Tulsa

County is AFFIRMED . Pursuant to Rule 3.15, Rules of the Oklahoma Court

of Criminal Appeals , Title 22, Ch.18, App. (2014), the MANDATE is

ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

THE

HONORABLE KURT G. GLASSCO, DISTRICT JUDGE

ATTORNEYS AT PLEA HEARING

ANGELA BONILLA

TULSA COUNTY PUBLIC

DEFENDER'S OFFICE

423 SOUTH

BOULDER, STE. 300

TULSA, OK 74103-3805

COUNSEL FOR DEFENDANT

ANDREA BROWN

ASSISTANT DISTRICT ATTORNEY

TULSA COUNTY

COURTHOUSE

500 SOUTH DENVER

TULSA, OK 74103

COUNSEL FOR

STATE

ATTORNEYS ON APPEAL

ERIC L. REYNOLDS

TULSA COUNTY

PUBLIC DEFENDER'S OFFICE

423

S. BOULDER AVE., STE. 300

TULSA, OK 74103-3805

COUNSEL FOR

APPELLANT

E. SCOTT PRUITT

ATTORNEY GENERAL OF OKLAHOMA

JAY

SCHNIEDERJAN

ASSISTANT ATTORNEY GENERAL

313 NE 21ST

STREET

OKLAHOMA CITY, OK 73105

COUNSEL FOR

APPELLEE

OPINION BY: Smith, V.P.J.

Lewis, P.J.: CONCUR

Lumpkin, J.:

CONCUR IN RESULTS

A. Johnson, J.: CONCUR

FOOTNOTES

1 In

Tate , this Court held that, because the statute authorizing mental health

courts did not require those courts to recognize relapses and restarts, trial

courts were not required to do so. Tate , 2013 OK CR 18, ¶¶ 26-27, 313 P.3d

at 282. The Legislature has since amended 22 O.S., § 472 to include such a

requirement, effective November 1, 2014. 2014 Okla. Sess. Laws

180.

Citationizer © Summary of Documents Citing This Document Cite

Name

Level

None Found.

Citationizer: Table of Authority Cite

Name

Level

Oklahoma Court of Criminal Appeals Cases

Cite Name Level

2002 OK CR 23, 48 P.3d 110, ALEXANDER v. STATE Discussed at Length

2007 OK CR 28, 164 P.3d 1103, HARRIS v. STATE Discussed

2008 OK CR 30, 199 P.3d 877, WILEY v. STATE Discussed

2012 OK CR 15, 290 P.3d 759, BARNARD v. STATE Discussed

2013 OK CR 11, 313 P.3d 934, MILLER v. STATE Discussed

2013 OK CR 18, 313 P.3d 274, TATE v. STATE Discussed at Length

Title 22. Criminal Procedure

Cite Name Level

22 O.S. 991a-4.1, Community Service Sentencing Program Discussed at Length

22 O.S. 472, Anna McBride Act Discussed

22 O.S. 991c, Deferred Sentence Cited

22 O.S. 471.7, Progress Reports and Periodic Reviews Discussed

22 O.S. 991a, Sentence - Powers of the Court Discussed

Title 57. Prisons and Reformatories

Cite Name Level

57 O.S. 510.8b, Pilot Diversion and Reentry Programs for Nonviolent Offenders who are Primary Caregivers of Minor Children Discussed at Length

Title 63. Public Health and Safety

Cite Name Level

63 O.S. 2-402, Prohibited Acts B - Penalties Cited

63 O.S. 2-405, Prohibited Acts E- Penalties Cited